EXHIBIT 10.5
EXECUTION COPY
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$35,000,000 SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
BY AND AMONG
LIFE TIME FITNESS, INC.,
AS BORROWER,
ANTARES CAPITAL CORPORATION
FOR ITSELF, AS A LENDER AND AS AGENT FOR ALL LENDERS
AND
BNP PARIBAS
FOR ITSELF, AS A LENDER AND AS DOCUMENTATION AGENT
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
AS LENDERS
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TABLE OF CONTENTS
ARTICLE I - THE CREDITS......................................................... 1
1.1 Amounts and Terms of Commitments....................................... 1
1.2 Notes.................................................................. 4
1.3 Interest............................................................... 4
1.4 Loan Accounts.......................................................... 5
1.5 Procedure for Revolving Credit Borrowing............................... 5
1.6 Conversion and Continuation Elections.................................. 6
1.7 INTENTIONALLY OMITTED.................................................. 7
1.8 Mandatory Prepayments of Loans and Commitment Reductions............... 7
1.9 Fees................................................................... 9
1.10 Payments by the Borrower.............................................. 9
1.11 Payments by the Lenders to the Agent.................................. 10
ARTICLE II - CONDITIONS PRECEDENT............................................... 10
2.1 Conditions of Initial Loans............................................ 10
2.2 Conditions to All Borrowings........................................... 13
ARTICLE III - REPRESENTATIONS AND WARRANTIES.................................... 14
3.1 Corporate Existence and Power.......................................... 14
3.2 Corporate Authorization, No Contravention.............................. 15
3.3 Governmental Authorization............................................. 15
3.4 Binding Effect......................................................... 15
3.5 Litigation............................................................. 16
3.6 No Default............................................................. 16
3.7 ERISA Compliance....................................................... 16
3.8 Use of Proceeds; Margin Regulations.................................... 16
3.9 Title to Property; Real Property....................................... 17
3.10 Taxes................................................................. 17
3.11 Financial Condition................................................... 17
3.12 Environmental Matters................................................. 17
3.13 Collateral Documents.................................................. 18
3.14 Regulated Entities.................................................... 18
3.15 Solvency.............................................................. 18
3.16 Labor Relations....................................................... 18
3.17 Copyrights, Patents, Trademarks and Licenses, etc..................... 18
3.18 Subsidiaries.......................................................... 19
3.19 Brokers' Fees; Transaction Fees....................................... 19
3.20 Insurance............................................................. 19
3.21 Legal Names, Location of Properties, Bank Accounts.................... 19
3.22 Intentionally Omitted................................................. 20
3.23 Material Contracts.................................................... 20
3.24 Full Disclosure....................................................... 20
ARTICLE IV - AFFIRMATIVE COVENANTS.............................................. 20
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4.1 Financial Statements................................................... 20
4.2 Certificates; Availability Certificates; Other Information............. 21
4.3 Notices................................................................ 22
4.4 Preservation of Corporate Existence, Etc............................... 24
4.5 Maintenance of Property................................................ 24
4.6 Insurance.............................................................. 24
4.7 Payment of Obligations................................................. 25
4.8 Compliance with Laws................................................... 26
4.9 Inspection of Property and Books and Records........................... 26
4.10 Use of Proceeds....................................................... 26
4.11 Solvency.............................................................. 27
4.12 Key Man Life Insurance................................................ 27
4.13 RE Holdings Leases.................................................... 27
4.14 TIAA Subsidiary Leases................................................ 28
4.15 Mandatory Dividends................................................... 28
4.16 Rent Reserve.......................................................... 29
4.17 Further Assurances; Post Closing Deliveries........................... 29
4.18 Acquisitions and Ownership of Real Property........................... 32
4.19 Additional Equity..................................................... 33
ARTICLE V - NEGATIVE COVENANTS.................................................. 33
5.1 Limitation on Liens.................................................... 33
5.2 Disposition of Assets.................................................. 34
5.3 Consolidations and Mergers............................................. 36
5.4 Loans and Investments.................................................. 36
5.5 Limitation on Indebtedness............................................. 37
5.6 Transactions with Affiliates........................................... 39
5.7 Management Fees and Compensation....................................... 39
5.8 Use of Proceeds........................................................ 39
5.9 Contingent Obligations................................................. 39
5.10 Compliance with ERISA................................................. 40
5.11 Restricted Payments................................................... 40
5.12 Change in Business.................................................... 41
5.13 Change in Structure................................................... 41
5.14 Accounting Changes.................................................... 41
5.15 Amendments to Related Agreements...................................... 41
5.16 No Acquisitions....................................................... 42
5.17 No Changes of Name or Collateral Locations............................ 42
5.18 Bank Accounts......................................................... 42
5.19 Business of RE Holdings............................................... 42
5.20 Business of FCA Restaurant Holdings................................... 42
5.21 Business of the TIAA Subsidiaries..................................... 42
5.22 Business of FCA Construction Holdings................................. 42
ARTICLE VI - FINANCIAL COVENANTS................................................ 42
6.1 Capital Expenditures................................................... 43
6.2 Senior Leverage Ratio.................................................. 43
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6.3 Total Leverage Ratio................................................... 43
6.4 Fixed Charge Coverage Ratio............................................ 43
6.5 Interest Coverage Ratio................................................ 43
6.6 Adjusted Total Leverage Ratio.......................................... 43
6.7 Loan to Value Ratio.................................................... 43
ARTICLE VII - EVENTS OF DEFAULT................................................. 44
7.1 Event of Default....................................................... 44
7.2 Remedies............................................................... 46
7.3 Rights Not Exclusive................................................... 47
7.4 Cash Collateral for Letters of Credit.................................. 47
ARTICLE VIII - THE AGENT........................................................ 47
8.1 Appointment and Authorization.......................................... 47
8.2 Delegation of Duties................................................... 47
8.3 Liability of Agent..................................................... 48
8.4 Reliance by Agent...................................................... 48
8.5 Notice of Default...................................................... 48
8.6 Credit Decision........................................................ 48
8.7 Indemnification........................................................ 49
8.8 Agent in Individual Capacity........................................... 50
8.9 Successor Agent........................................................ 50
8.10 Collateral Matters.................................................... 50
8.11 Documentation Agent................................................... 51
ARTICLE IX - MISCELLANEOUS...................................................... 51
9.1 Amendments and Waivers................................................. 51
9.2 Notices................................................................ 52
9.3 No Waiver; Cumulative Remedies......................................... 52
9.4 Costs and Expenses..................................................... 53
9.5 Indemnity.............................................................. 53
9.6 Marshaling; Payments Set Aside......................................... 54
9.7 Successors and Assigns................................................. 54
9.8 Assignments, Participations, etc....................................... 55
9.9 Confidentiality........................................................ 56
9.10 Set-off, Sharing of Payments.......................................... 57
9.11 Notification of Addresses, Lending Offices, Etc....................... 58
9.12 Counterparts.......................................................... 58
9.13 Severability.......................................................... 58
9.14 Captions.............................................................. 58
9.15 Independence of Provisions............................................ 58
9.16 Interpretation........................................................ 58
9.17 No Third Parties Benefited............................................ 58
9.18 Governing Law and Jurisdiction........................................ 58
9.19 Waiver of Jury Trial.................................................. 59
9.20 Entire Agreement; Release............................................. 60
9.21 Subordination to Equipment Lender, in Respect of Certain Equipment.... 60
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ARTICLE X - TAXES, YIELD PROTECTION AND ILLEGALITY.............................. 60
10.1 Taxes................................................................. 60
10.2 Illegality............................................................ 62
10.3 Increased Costs and Reduction of Return............................... 63
10.4 Funding Losses........................................................ 64
10.5 Inability to Determine Rates.......................................... 64
10.6 Reserves on LIBOR Rate Loans.......................................... 65
10.7 Certificates of Lenders............................................... 65
10.8 Survival.............................................................. 65
10.9 Replacement of Lender in Respect of Increased Costs.................. 65
ARTICLE XI - DEFINITIONS..........................................................65
11.1 Defined Terms......................................................... 65
11.2 Other Interpretive Provisions......................................... 85
11.3 Accounting Principles................................................. 86
SCHEDULES
Schedule 1.1(a) Revolving loan Commitments
Schedule 3.2 Capitalization
Schedule 3.5 Litigation
Schedule 3.7 ERISA
Schedule 3.9 Real Property
Schedule 3.17 Intellectual Property
Schedule 3.21A Names ▇▇▇▇▇, Chief Executive Offices
Schedule 3.21B Collateral Locations
Schedule 3.21C Bank Accounts
Schedule 3.23 Material Contracts
Schedule 4.6 Insurance
Schedule 5.1 Liens
Schedule 5.5 Indebtedness
Schedule 5.9 Contingent Obligations
Schedule 9.21 Leased Equipment
EXHIBITS
Exhibit 4.2(b) Compliance Certificate
Exhibit 4.13 RE Holdings Lease
Exhibit 4.14 TIAA Subsidiary Lease
Exhibit 11.1(a) Availability Certificate
Exhibit 11.1(b) Notice of Borrowing
Exhibit 11.1(c) Notice of Continuation/Conversion
Exhibit 11.1(d) Revolving Note
Exhibit 11.1e) Term Note
Exhibit 11.1(f) Rent Reserve Account Agreement
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT as it may be amended,
modified or supplemented from time to time, (this "Agreement") is entered into
as of July 19, 2001 by and among LIFE TIME FITNESS, Inc., a Minnesota
corporation (the "Borrower"), Antares Capital Corporation, a Delaware
corporation ("Antares"), as Agent for the several financial institutions from
time to time party to this Agreement (collectively, the "Lenders" and
individually each a "Lender") and for itself as a Lender, BNP Paribas, a French
banking corporation ("BNPP"), as a Lender and as Documentation Agent, and Chase
Manhattan Bank, as trustee of the Antares Funding Trust created under the Trust
Agreement dated as of November 30, 1999 ("Chase"), as a Lender.
WITNESSETH:
WHEREAS, Borrower is in the business of developing and operating health
and fitness facilities and Borrower desires to develop future health and fitness
facilities which Borrower may own or lease from other Persons, or develop future
health and fitness facilities on real property which one of its wholly owned
Subsidiaries has acquired and leased, or will acquire and lease, to Borrower
pursuant to long-term lease agreements; and
WHEREAS, Antares, Chase and Borrower are all of the parties to a
certain Amended and Restated Credit Agreement dated as of October 11, 2000, as
amended (the "Existing Credit Agreement"); and
WHEREAS, Borrower has requested that the credit facilities under the
Existing Credit Agreement be increased to up to $35,000,000 and that BNPP become
a Lender thereunder, and, subject to the terms and conditions of this Amendment,
Antares, Chase and BNPP are agreeable to such request;
WHEREAS, the parties agree that in connection with the foregoing, it is
advantageous to restate the terms and provisions of the Existing Credit
Agreement as the same are to be amended in a single agreement, as hereinafter
provided;
NOW, THEREFORE, the parties agree that the Existing Credit Agreement
shall be amended and restated in its entirety in this Agreement, and intending
to be legally bound hereby the parties further agree as follows:
ARTICLE I - THE CREDITS
1.1 Amounts and Terms of Commitments.
(a) The Revolving Credit. From and after the Effective Date, each
Lender severally and not jointly agrees to make Loans to the Borrower (each such
Loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Effective Date to the Revolving Termination Date, in an
aggregate amount not to exceed the amount set forth opposite the Lender's name
in Schedule 1.1(a) under the heading "Revolving Loan Commitment" (such
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amount, as the same may be reduced from time to time pursuant to subsection
1.8(c) hereof or as a result of one or more assignments pursuant to Section 9.8,
being referred to herein as such Lender's "Revolving Loan Commitment"); provided
that no Lender shall be obligated to make a Revolving Loan if, after giving
effect thereto
(i) the aggregate principal amount of all outstanding
Revolving Loans plus all Letter of Credit Participation Liability would
exceed the Maximum Revolving Loan Balance (calculated on a pro forma
basis giving effect to such Revolving Loan), or
(ii) the Adjusted Total Leverage Ratio (calculated on a pro
forma basis giving effect to such Revolving Loan) would exceed 4.00 to
1.00; or
(iii) the Total Leverage Ratio (calculated on a pro forma
basis giving effect to such Revolving Loan) would exceed 4.50 to 1.00;
or
(iv) if the proceeds of such Revolving Loan are to be used in
whole or in part to fund the purchase or acquisition of real Property,
after funding of such Revolving Loan, Availability would be less than
$2,000,000.
Subject to the terms and conditions of this Agreement, amounts borrowed under
this Section 1.1(a) may be repaid and reborrowed from time to time.
(b) Lender Letters of Credit and Letter of Credit Participation
Agreements. In addition to obtaining Revolving Loans, the Borrower may utilize
the Revolving Loan Commitment to obtain (i) letters of credit issued by the
Agent (each such letter of credit, a "Lender Letter of Credit") or (ii) letter
of credit participation agreements issued by Agent (each such letter of credit
participation, a "Letter of Credit Participation Agreement") which confirm
payment to banks (whether or not such banks are Lenders) which issue letters of
credit for the account of Borrower on behalf of each Lender having a Revolving
Loan Commitment (severally and not jointly) according to such Lender's Revolving
Loan Commitment. Lender Letter of Credit and Letter of Credit Participation
Agreements are collectively referred to herein as "L/C Facilities".
Notwithstanding the foregoing, the Agent shall have no obligation to issue a L/C
Facility for the benefit of Borrower if, after giving effect thereto, (x) any of
the conditions described in items (i), (ii), (iii) or (iv) of Section 1.1(a)
would exist, or (y) the aggregate amount of the Letter of Credit Participation
Liability would exceed $3,000,000 plus, during the period while the TIAA Letter
of Credit is outstanding, the aggregate undrawn amount available for drawing
thereunder. Notwithstanding anything else contained in this Agreement, the
Borrower may not request issuance of, and the Agent and the Lenders shall have
no obligation hereunder to issue or cause the issuance of (or extend the
maturity of), the TIAA Letter of Credit except pursuant to consummation of the
TIAA Transaction, and the face amount of the TIAA Letter of Credit, when issued,
shall not exceed $5,000,000.
The Borrower shall be irrevocably and unconditionally obligated without
presentment, demand, protest or other formalities of any kind, to reimburse the
Agent for any amounts paid by the Agent under any L/C Facility within one (1)
Business Day after notice to Borrower thereof. The Borrower hereby authorizes
and directs the Lenders with Revolving Loan Commitments, at the Agent's option,
to make a Revolving Loan and fund the proceeds thereof directly to the
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Agent in the amount of any payment made by the Agent with respect to any L/C
Facility. All amounts paid by the Agent with respect to any L/C Facility that
are not repaid by Borrower within one (1) Business Day after notice to Borrower
thereof, with the proceeds of a Revolving Loan or otherwise, shall bear interest
at the interest rate then applicable to Revolving Loans, calculated using the
Base Rate and the Applicable Margin in effect, and, if applicable under Section
1.3(c) hereof, the additional two percent (2.0%) per annum provided for therein.
Each Lender agrees to fund its Commitment Percentage of any Revolving Loan made
pursuant to this Section 1.1(b) and, if no such Revolving Loans are made, each
Lender with a Revolving Loan Commitment agrees to purchase, and shall be deemed
to have purchased, a participation in such L/C Facility in an amount equal to
its ratable share of such L/C Facility based upon the Revolving Loan Commitments
then in effect and each such Lender agrees to pay to the Agent such share of any
payments made by the Agent under such L/C Facility. The obligations of each
Lender under the preceding two (2) sentences shall be absolute and unconditional
and such remittance shall be made notwithstanding the occurrence or continuation
of an Event of Default or Default or the failure to satisfy any condition set
forth in Sections 2.2 or 2.3 hereof.
Borrower may request and use a L/C Facility for the same purpose as any
Revolving Loan, or, with respect to the TIAA Letter of Credit, to secure the
TIAA Facilities, or, with respect to the U.S. Bank Letter of Credit, to secure
the U.S. Bank Facilities, but for no other purposes. Any L/C Facility and any
letter of credit or written contract for which Borrower requests a Letter of
Credit Participation Agreement shall be in such form, be for such amount, and
contain such terms as are reasonably satisfactory to Agent.
The expiration date of each Lender Letter of Credit shall be on a date
which is no later than the Revolving Termination Date. Each Letter of Credit
Participation Agreement shall provide that the Letter of Credit Participation
Agreement terminates and all demands or claims for payment must be presented by
a date certain, which date will be the earlier of (a) one year from its date of
issuance plus options to renew for additional one year periods, or as otherwise
provided in the letter of credit, or (b) the Revolving Termination Date.
Borrower shall give the Agent at least ten (10) Business Days prior
notice specifying the date a L/C Facility is to be issued, identifying the
beneficiary thereof, and describing the nature of the transactions proposed to
be supported thereby. The notice shall specify the same information and contain
the same certifications which Section 1.5 requires be included in a Notice of
Borrowing and the Agent's obligation to establish an L/C Facility shall be
subject to the same conditions precedent as those for making a Revolving Loan.
The notice shall also be accompanied by the drawing terms for the Lender Letter
of Credit or form of each letter of credit or other written contract which will
be supported by the Letter of Credit Participation Agreement.
(c) Term Loans. As of the date hereof, $5,000,000.00 in aggregate
outstanding principal amount of term loans have been funded by Antares and Chase
to Borrower as follows: $443,766.79 by Antares and $4,556,233.21 by Chase
(collectively, with the new term loan referred to in the next sentence, the
"Term Loans"). On the Effective Date, BNPP shall make a term loan to Borrower in
the principal amount of $5,000,000. The maturity date of all of the Term Loans
shall be the Revolving Termination Date, when the outstanding principal balance
of the Term Loans shall be due and payable in full in a single installment. The
outstanding principal
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balance of the Term Loans shall bear interest from time to time in accordance
with Sections 1.3 and 1.6 hereof.
1.2 Notes. The Revolving Loans made by each Lender with a Revolving
Loan Commitment shall be evidenced by a Revolving Note payable to the order of
such Lender in an amount equal to such Lender's Revolving Loan Commitment. The
Term Loans outstanding to each Lender shall be evidenced by a Term Note payable
to the order of such Lender in the amount of such Lender's Term Loan. At Closing
on the Effective Date, (a) the existing revolving and term notes held by Antares
will be amended and restated to reflect the Revolving Loan Commitment and Term
Loan held by Antares, and (b) a new Term Note will be issued to BNPP reflecting
its Term Loan and a new Revolving Note will be issued to BNPP reflecting its
Revolving Loan Commitment.
1.3 Interest. (a) Subject to subsections 1.3(c) and 1.3(d), each Loan
shall bear interest on the outstanding principal amount thereof from the date
when made at a rate per annum equal to the LIBOR or the Base Rate, as the case
may be, plus the Applicable Margin, as the same may be adjusted pursuant to the
provisions of the definition of Applicable Margin. The Applicable Margin for
Loans shall be subject to adjustment as set forth in the definition of
Applicable Margin. The Agent will with reasonable promptness notify the Borrower
and the Lenders of the effective date and the amount of each such change,
provided that any failure to do so shall not relieve the Borrower of any
liability hereunder or provide the basis for any claim against the Agent. Each
determination of an interest rate by the Agent shall be conclusive and binding
on the Borrower and the Lenders in the absence of demonstrative error. All
computations of fees and interest payable under this Agreement shall be made on
the basis of a 360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) All interest accrued on a Loan shall be paid in arrears on each
Interest Payment Date. All accrued interest on a Loan shall also be paid on the
date of any payment or prepayment of such Loan in full.
(c) At the election of the Required Lenders while (i) any Event of
Default described in Section 7.1(a) or Section 7.1(c) (to the extent such Event
of Default involves the Borrower's failure to perform any term, covenant or
agreement contained in Articles V or VI) exists and continues or (ii) any other
Event of Default (A) exists and continues for a period of at least five (5)
consecutive days or (B) which has occurred on two or more occasions exists and
continues, the Borrower shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the Obligations, at a rate
per annum which is determined by adding two percent (2.0%) per annum to the
Applicable Margin then in effect for such Loans (plus the LIBOR or Base Rate, as
the case may be) and, in the case of Obligations not subject to an Applicable
Margin (other than the fees described in Section 1.9), at a rate per annum equal
to the Base Rate plus two percent (2.0%); provided, however, that, except as
otherwise permitted pursuant to Section 1.6(e), on and after the expiration of
any Interest Period applicable to any LIBOR Rate Loan outstanding on the date of
occurrence of such Event of Default, the principal amount of such Loan shall,
during the continuation of such Event of Default, bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin plus two percent (2.0%).
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(d) Anything herein to the contrary notwithstanding, the obligations of
the Borrower hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Lender would be contrary to the
provisions of any law applicable to such Lender limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such
Lender, and in such event the Borrower shall pay such Lender interest at the
highest rate permitted by applicable law.
1.4 Loan Accounts. The Agent, on behalf of the Lenders, shall record on
its books and records the amount of each Loan made, the interest rate
applicable, all payments of principal and interest thereon and the principal
balance thereof from time to time outstanding. The Agent shall deliver to the
Borrower on a monthly basis a loan statement setting forth such record for the
immediately preceding month. Such record shall, absent demonstrative error, be
conclusive evidence of the amount of the Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so, or any failure to deliver such loan statement shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder (and
under the Revolving Note) to pay any amount owing with respect to the Loans or
provide the basis for any claim against the Agent.
1.5 Procedure for Revolving Credit Borrowing. (a) Each Borrowing under
the Revolving Loan shall be made upon the Borrower's irrevocable (subject to
Section 10.5 hereof) written notice delivered to the Agent in the form of a
Notice of Borrowing, which notice must be received by the Agent prior to 10:30
a.m. (Chicago time) (i) on the date which is one (1) Business Day prior to the
requested Borrowing date of each Base Rate Loan, and (ii) on the day which is
three (3) Business Days prior to the requested Borrowing date in the case of
each LIBOR Rate Loan; provided that the Borrower may give notice of the
requested Borrowing to the Agent by telephone call, with such notice confirmed
not later than the following Business Day by delivery to the Agent of a signed
Notice of Borrowing; provided further, that the Agent shall have no obligation
to act with respect to any Notice of Borrowing until a signed Notice of
Borrowing is received by the Agent. Such Notice of Borrowing shall specify (and
attach where applicable):
(A) the amount of the Borrowing (which shall be in an
aggregate minimum principal amount of $200,000 and multiples of $50,000
in excess thereof);
(B) the requested Borrowing date, which shall be a Business
Day;
(C) whether the Borrowing is to be comprised of LIBOR Rate
Loans or Base Rate Loans;
(D) if the Borrowing is to be LIBOR Rate Loans, the Interest
Period applicable to such Loans.
(E) whether such Borrowing will be a Working Capital
Borrowing, a Leasehold Improvement Project Borrowing, a Project
Investment Borrowing, or an Excess Project Investment Borrowing (which
designation will be certified);
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(F) if the Borrowing is a Project Investment Borrowing or a
Leasehold Improvement Project, the cost categories specified in the
Good Faith Project Budget for the applicable Project which the
Borrowing will be used to pay; and
(G) if the Borrowing is an Excess Project Investment
Borrowing, (x) the cost categories specified in the Good Faith Project
Budget for the applicable Project which the Borrowing will be used to
pay, (y) a detailed, narrative explanation of any variation between the
amount of the Borrowing requested and the amount estimated to be
required for the same categories of cost in the Good Faith Project
Budget, and (z) all invoices, certificates of completion, bills of sale
and other documents as the Agent may in its discretion require to
evidence the use of the Borrowing for the specified purposes consistent
with the Good Faith Project Budget and with good business and
construction practices.
Borrower may request that Revolving Loans be made as LIBOR Rate Loans and that
Loans be converted to or continued as LIBOR Rate Loans. The Agent shall have no
duty to verify the authenticity or authority of any written or telephonic Notice
of Borrowing.
(b) Borrower shall not deliver a Notice of Borrowing or request for a
L/C Facility to the Agent with respect to any Initial Project Borrowing, and no
such Notice of Borrowing or request shall be effective, until at least seven (7)
days following Borrower's delivery to the Agent of a Good Faith Project Budget
with respect to that Project.
(c) Upon receipt of the Notice of Borrowing, the Agent will promptly
notify each Lender with a Commitment affected thereby of such Notice and of the
amount of such Lender's Commitment Percentage of the Borrowing.
(d) Unless Agent is otherwise directed in writing by Borrower, the
proceeds of each requested Borrowing will be made available to the Borrower by
the Agent by wire transfer (or ACH transfer) of such amount to the Borrower
pursuant to the wire transfer instructions specified on the signature page
hereto.
1.6 Conversion and Continuation Elections. (a) Subject to Section
1.6(f), the Borrower may upon irrevocable (except as provided in Sections
10.2(c) and 10.5) written notice to the Agent in accordance with Section 1.6(b)
elect to convert on any Business Day any Base Rate Loans into LIBOR Rate Loans
or elect to continue on the last day of the applicable Interest Period any LIBOR
Rate Loans having Interest Periods maturing on such day, in each instance, in
whole or in part in an amount not less than $200,000, or that is in an integral
multiple of $50,000 in excess thereof.
(b) The Borrower shall deliver a Notice of Conversion/Continuation to
be received by the Agent not later than 10:30 a.m. (Chicago time) at least three
(3) Business Days in advance of the requested Conversion Date or continuation
date, specifying:
(i) the proposed Conversion Date or continuation date;
(ii) the aggregate amount of Loans to be converted or renewed;
and
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(iii) the duration of the requested Interest Period with
respect to the Loans to be converted or continued as LIBOR Rate Loans.
(c) If upon the expiration of any Interest Period applicable to LIBOR
Rate Loans, the Borrower has failed to select timely a new Interest Period to be
applicable to such LIBOR Rate Loans, or if any Event of Default shall then
exist, except as otherwise permitted pursuant to Section 1.6(e) the Borrower
shall be deemed to have elected to convert such LIBOR Rate Loans into Base Rate
Loans effective as of the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the Agent will
promptly notify each Lender thereof. In addition, the Agent will, with
reasonable promptness, notify the Borrower and the Lenders of each determination
of a LIBOR Rate; provided that any failure to do so shall not relieve the
Borrower of any liability hereunder or provide the basis for any claim against
the Agent. All conversions and continuations shall be made pro rata according to
the respective outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
(e) Unless the Required Lenders shall otherwise agree, during the
existence of an Event of Default, the Borrower may not elect to have a Loan
converted into or continued as a LIBOR Rate Loan.
(f) Notwithstanding any other provision contained in this Agreement,
after giving effect to any Borrowing, or to any continuation or conversion of
any Loans, there shall not be more than five (5) different Interest Periods in
effect.
1.7 INTENTIONALLY OMITTED.
1.8 Mandatory Prepayments of Loans and Commitment Reductions.
(a) Revolving Loan. If, at any time,
(i) the aggregate of the outstanding principal balance of the
Revolving Loan and any then outstanding Letter of Credit Participation
Liability exceeds the Maximum Revolving Loan Balance then in effect, or
(ii) the Adjusted Total Leverage Ratio for the twelve-month
period ending on the last day of the preceding calendar month exceeds
4.00 to 1.00; or
(iii) the Total Leverage Ratio for the twelve-month period
ending on the last day of the preceding calendar month exceeds 4.50 to
1.00; or
(iv) after funding of a Revolving Loan the proceeds of which
are used in whole or in part to fund the purchase or acquisition of
real Property, Availability is less than $2,000,000;
then the Borrower shall promptly repay the Revolving Loan by such amount as
shall cause such condition to no longer exist. In addition, the Borrower shall
repay to the Lenders in full on the
7
date specified in clause (a) of the definition of "Revolving Termination Date"
the aggregate principal amount of the Revolving Loans outstanding on the
Revolving Termination Date.
(b) Asset Dispositions. If the Borrower or any of its Subsidiaries
shall at any time or from time to time:
(i) make or agree to make a Disposition; or
(ii) suffer an Event of Loss; or
(iii) issue any equity or debt securities, other than as
permitted by Sections 5.5(g) and (h) below and other than pursuant to
an underwritten registered initial public offering of capital stock by
the Borrower with gross proceeds of at least $25,000,000 (an
"Issuance");
then:
(A) with respect to any Disposition or Event of Loss as to
which the aggregate amount of the Net Proceeds received by Borrower and
its Subsidiaries in connection with such Disposition or Event of Loss
and all other Dispositions and Events of Loss occurring during the same
fiscal year exceeds $250,000, then, except to the extent that such Net
Proceeds belong to RE Holdings and are required to be otherwise applied
pursuant to RE Holdings' obligations under the U.S. Bank Facilities or
belong to a TIAA Subsidiary and are required to be otherwise applied
pursuant to such TIAA's obligations under the TIAA Facility,
(x) the Borrower shall promptly notify the Agent of
such proposed Disposition or Event of Loss (including the
amount of the estimated Net Proceeds to be received by the
Borrower in respect thereof), and
(y) subject to the following sentence, promptly upon
receipt by the Borrower or its Subsidiary of the Net Proceeds
of such Disposition or Event of Loss, the Borrower shall
deliver such Net Proceeds to the Agent for distribution to the
Lenders as a prepayment of the Loans, which prepayment shall
be applied in accordance with Section 1.8(c) hereof.
Notwithstanding the foregoing, such prepayment shall not be
required if the Borrower reinvests the Net Proceeds of such
Disposition, or a portion thereof, in productive assets of a
kind then used or usable in the business of the Borrower
within one hundred eighty (180) days after the date of such
Disposition or enters into a binding commitment thereof within
said one hundred eighty (180) day period and subsequently
makes such reinvestment; and
(B) with respect to any Issuance, the aggregate amount of the
proceeds received by Borrower and its Subsidiaries in connection with
such Issuance, net of underwriters' fees and expenses and discounts and
other costs incurred, shall be promptly (and in any event within five
(5) Business Days of receipt thereof by Borrower or the applicable
Subsidiary) delivered to the Agent for distribution to the Lenders as a
prepayment of the Loans, which prepayment shall be applied in
accordance with Section 1.8(c) hereof.
8
(c) Application of Prepayments. Any prepayments pursuant to Sections
1.8(b) shall be applied first ratably to the Term Loans in permanent reduction
of the outstanding principal balance of the Term Loans until the Term Loans
shall be repaid in full, and then ratably to the Revolving Loans in permanent
reduction of the outstanding principal balance thereof until the Revolving Loans
shall have been repaid in full, and each Lender's Revolving Loan Commitment
shall be correspondingly permanently reduced by the amount of each such
repayment of the Revolving Loans. To the extent permitted by the foregoing
sentence, amounts prepaid shall be applied first to any Base Rate Loans then
outstanding and then to outstanding LIBOR Rate Loans with the shortest Interest
Periods remaining. Together with each prepayment under this Section 1.8, the
Borrower shall pay any amounts required pursuant to Section 10.4 hereof.
1.9 Fees.
(a) Intentionally Omitted.
(b) Commitment Fee. Borrower shall pay to Agent, for the ratable
benefit of the Lenders having Revolving Loan Commitments, a fee (the "Commitment
Fee") in an amount equal to
(i) the Aggregate Revolving Loan Commitment, less
(ii) the average daily balance of all Revolving Loans
outstanding during the preceding month, less
(iii) the Letter of Credit Participation Liability,
multiplied by one-half of one percent (0.5%) per annum, such fee to be payable
monthly in arrears on the first day of the month following the date hereof and
the first day of each month thereafter. The Commitment Fee provided in this
Section 1.9(b) shall accrue at all times after the Effective Date.
(c) Letter of Credit Fee. The Borrower shall pay to the Agent, for the
ratable benefit of the Lenders, a fee equal to four percent (4.0%) per annum on
the outstanding Letter of Credit Participation Liability, payable quarterly in
arrears on the first day of the month following the end of each quarter.
1.10 Payments by the Borrower. (a) All payments (including prepayments)
to be made by the Borrower on account of principal, interest, fees and other
amounts required hereunder shall be made without set-off, recoupment or
counterclaim, shall, except as otherwise expressly provided herein, be made to
the Agent for the ratable account of the Lenders at the address for payment
specified in the signature page hereof in relation to the Agent (or such other
address as Agent may from time to time specify in accordance with Section 9.2),
and shall be made in dollars and in immediately available funds, no later than
10:30 a.m. (Chicago time) on the date due. The Agent will promptly distribute to
each Lender its Commitment Percentage (or other applicable share as expressly
provided herein) of such principal, interest, fees or other amounts, in like
funds as received. Any payment which is received by the Agent later than 10:30
a.m. (Chicago time) shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall continue to
accrue. Borrower hereby authorizes Agent and each Lender to make a Revolving
Loan (which shall be a Base Rate Loan) to pay
9
(i) interest, principal, agent fees and Commitment Fees, in each instance, on
the date due, or (ii) after five (5) days prior notice to Borrower, other fees,
costs or expenses payable by Borrower or any of its Subsidiaries hereunder or
under the other Loan Documents.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, if any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
1.11 Payments by the Lenders to the Agent. (a) Unless the Agent shall
have received notice from a Lender at least one (1) Business Day prior to the
date of any proposed Borrowing, that such Lender will not make available to the
Agent as and when required hereunder for the account of the Borrower the amount
of that Lender's Commitment Percentage of the Borrowing, the Agent may assume
that each Lender has made such amount available to the Agent in immediately
available funds on the applicable Borrowing date and the Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent any Lender
shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Borrower such amount, that Lender shall on the next Business Day following the
date of such Borrowing make such amount available to the Agent, together with
interest at the Agent's cost of funds for and determined as of each day during
such period. A notice of the Agent submitted to any Lender with respect to
amounts owing under this Section 1.11(a) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Agent shall
constitute such Lender's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Agent on the next
Business Day following the date of such Borrowing, the Agent shall notify the
Borrower of such failure to fund and, upon demand by the Agent, the Borrower
shall pay such amount to the Agent for the Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any date of Borrowing
shall not relieve any other Lender of any obligation hereunder to make a Loan on
the date of such Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Loan to be made by such other Lender on the date
of any Borrowing.
ARTICLE II - CONDITIONS PRECEDENT
2.1 Conditions of Initial Loans. The effectiveness of this Agreement as
an amendment and restatement of the Existing Credit Agreement and the obligation
of each Lender to make its initial Loan hereunder is subject to the condition
that the Agent shall have received or waived on or before the Effective Date all
of the following, in form and substance reasonably satisfactory to the Agent and
each Lender and (except for the Revolving Notes and the Term Notes and any
instruments or documents which are Pledged Collateral) in sufficient
counterparts for each Lender, duly executed by all parties thereto:
10
(a) Credit Agreement, Revolving Notes and Term Notes. This Agreement,
executed by the Borrower, the Agent and each of the Lenders, and the Revolving
Notes and the Term Notes, executed by the Borrower;
(b) Secretary's Certificates; Resolutions; Incumbency. A certificate of
the Secretary or Assistant Secretary of the Borrower, and each Subsidiary of the
Borrower which is a party to any Loan Documents, certifying:
(i) the names and true signatures of the officers of the
Borrower and each such Subsidiary authorized to execute, deliver and
perform, as applicable, this Agreement, and all other Loan Documents to
be delivered hereunder; and
(ii) Copies of the resolutions of the board of directors of
the Borrower and each such Subsidiary approving and authorizing the
execution, delivery and performance by the Borrower or such Subsidiary
of this Agreement and the other Loan Documents to be executed or
delivered by it hereunder;
(c) Articles of Incorporation; By-laws and Good Standing. Each of the
following documents:
(i) the Organization Documents of the Borrower, each
Subsidiary of the Borrower which is a party to any Loan Documents and
each TIAA Subsidiary as such Organization Documents are in effect on
the Effective Date, certified by the Secretary of State (or similar,
applicable Governmental Authority) of the state of incorporation of the
Borrower or such Subsidiary as of a recent date, if and as applicable,
all certified by the Secretary or Assistant Secretary of the Borrower
or such Subsidiary as of the Effective Date; and
(ii) a good standing and, if available, tax good standing
certificate for the Borrower and each Subsidiary of the Borrower from
the Secretary of State (or similar, applicable Governmental Authority)
of its state of incorporation and each state where the Borrower or such
Subsidiary is qualified to do business as a foreign corporation as of a
recent date;
(d) Collateral Documents. A written guaranty of the Obligations from LT
Kids in form and substance acceptable to Antares and BNPP and a Security
Agreement from LT Kids in form and substance acceptable to Antares and BNPP
granting to the Agent for the benefit of Agent and the Lenders a security
interest in and secured first priority Lien on all of its assets to secure such
guaranty and the Obligations. In addition, to the extent required by Antares and
BNPP, amendments to and/or reaffirmations of the Collateral Documents, in form
and substance satisfactory to Antares and BNPP, executed by the Borrower and
each Subsidiary of the Borrower party to such Collateral Documents, together
with:
(i) evidence reasonably satisfactory to the Agent that there
has been filed, registered or recorded all financing statements and
other filings, registrations and recordings reasonably necessary and
advisable to perfect the Liens of the Agent, for the benefit of Agent
and the Lenders, granted pursuant to the Collateral Documents, in
accordance with applicable law;
11
(ii) uniform commercial code financing statement, federal and
state tax lien and judgment searches as the Agent shall have reasonably
requested of the Borrower and any Subsidiary of the Borrower, and such
termination statements or other documents as may be reasonably
necessary to confirm that the Collateral is subject to no other Liens
in favor of any Persons (other than Permitted Liens);
(iii) all certificates and instruments representing the
Pledged Collateral, irrevocable proxies and stock transfer powers
executed in blank or other executed endorsements reasonably
satisfactory to the Agent, with signatures guaranteed as the Agent may
require;
(iv) evidence that all other actions reasonably necessary or,
in the reasonable opinion of the Agent, desirable to perfect and
protect the Liens created by the Collateral Documents have been taken;
and
(v) funds sufficient to pay any filing or recording tax or fee
in connection with any and all UCC-1 financing statements.
(e) Legal Opinions. Such opinions of counsel to the Borrower and its
Subsidiaries, addressed to the Agent and the Lenders, in form and substance
reasonably satisfactory to Agent;
(f) Payment of Fees. The Borrower shall have paid all accrued and
unpaid fees, costs and expenses to the extent then due and payable on the
Effective Date, together with Attorney Costs of the Agent;
(g) Certificate. A certificate signed on behalf of Borrower by a
Responsible Officer, dated as of the Effective Date, stating that:
(i) the representations and warranties contained in Article
III hereof are true and correct in all material respects on and as of
such date, as though made on and as of such date; and
(ii) no Default or Event of Default exists or would result
from any Borrowing then to be funded;
(h) The TIAA Transaction. Evidence satisfactory to the Agent and the
Lenders that the TIAA Transaction has closed and true and correct copies of all
of the TIAA Financing Agreements have been delivered to Agent and BNPP;
(i) Financial Statements. To the extent not previously delivered to the
Agent and the Lenders, copies of all of the financial statements of the Borrower
and its Subsidiaries referred to in Section 3.11, together with a pro forma
balance sheet giving effect to the TIAA Transaction, certified on behalf of
Borrower by a Responsible Officer;
(j) Insurance Policies. To the extent not previously delivered to the
Agent, standard lenders' loss payable endorsements on form ACCORD 27 in favor of
the Agent with respect to the insurance policies or other instruments or
documents evidencing insurance coverage on the
12
properties of the Borrower in accordance with Section 4.6 and endorsements to
all liability insurance policies naming the Agent and the Lenders as additional
insureds thereunder;
(k) Reaffirmation of Guaranty and Security Agreement. (i) A
reaffirmation agreement from FCA Restaurant Holdings, in form and substance
satisfactory to Antares and BNPP, reaffirming the FCA Restaurant Holdings
Guaranty and the security interests granted to Agent by FCA Restaurant Holdings,
and (ii) a reaffirmation agreement from LT Kids, in form and substance
satisfactory to Antares and BNPP, reaffirming the guaranty by LT Kids and the
security interests granted to Agent by LT Kids;
(l) TIAA Subsidiary Upstream Distribution Agreement. The TIAA
Subsidiary Upstream Distribution Agreement;
(m) U.S. Bank Financing Agreements. Evidence satisfactory to the Agent
and the Lenders that the U. S. Bank Financing Agreements have been amended in
certain respects acceptable to Antares and BNPP;
(n) Key Man Life Insurance. Evidence satisfactory to the Agent and the
Lenders that the key man life insurance required by Section 4.12 is in full
force and effect; and
(o) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may reasonably request.
2.2 Conditions to All Borrowings. The obligation of each Lender to make
any Loan, or to continue or convert any Loan hereunder, and the obligation of
the Agent to issue a L/C Facility, is subject to the satisfaction of the
following conditions precedent on the relevant borrowing, continuation,
conversion or issuance date:
(a) Notice of Borrowing or Continuation/Conversion. The Agent shall
have received a Notice of Borrowing, a Notice of Continuation/Conversion, or a
request for a L/C Facility, as applicable, in accordance with Section 1.5,
Section 1.6 or Section 1.1(b);
(b) Continuation of Representations and Warranties. The representations
and warranties made by the Borrower contained in Article III shall be true and
correct in all material respects on and as of such Borrowing, or continuation or
conversion date, or L/C Facility issuance with the same effect as if made on and
as of such Borrowing or continuation or conversion date, or L/C Facility
issuance (except to the extent such representations and warranties (i) expressly
refer to an earlier date, in which case they shall be true and correct in all
material respects as of such earlier date, (ii) are not true and correct due to
events or conditions, the occurrence or existence of which are not prohibited by
this Agreement or the other Loan Documents and which do not, in and of
themselves, constitute a Default or an Event of Default, or (iii) with respect
to which exceptions thereto which have been disclosed in writing to the Agent
and which have been accepted in writing by the Required Lenders;
(c) No Existing Default. No Default or Event of Default shall exist
(including, without limitation, any condition, event or circumstance which is
described in clause (ii) of Section 7.1(e) which has not been irrevocably waived
in writing by the requisite Persons) or shall result from such Borrowing or
continuation or conversion;
13
(d) Availability Certificate. The Agent shall have received a duly
completed Availability Certificate setting forth availability under the
Revolving Loan Commitment as of a date not more than five (5) days prior to the
date of Borrowing or issuance of the L/C Facility and, after giving effect to
such Borrowing or L/C Facility, as the case may be: (i) the outstanding
principal balance of the Revolving Loans plus all outstanding Letter of Credit
Participation Liability will not exceed the Maximum Revolving Loan Balance
(calculated on a pro forma basis giving effect to such Borrowing or L/C
Facility) , and (ii) the Adjusted Total Leverage Ratio (calculated on a pro
forma basis giving effect to such Borrowing or L/C Facility) will not exceed
4.00 to 1.00; and (iii) the Total Leverage Ratio (calculated on a pro forma
basis giving effect to such Borrowing or L/C Facility) will not exceed 4.50 to
1.00; and (iv) if the proceeds of such Revolving Loan are to be used in whole or
in part to fund purchase or acquisition of real Property, after funding of such
Revolving Loan or L/C Facility, Availability will not be less than $2,000,000.
(e) Subsidiaries. Borrower shall have pledged the stock or other equity
interest of each of its Subsidiaries, other than the TIAA Subsidiaries, to the
Agent, for the benefit of Agent and the Lenders; and
(f) No Material Adverse Effect. No event has occurred which has had a
Material Adverse Effect and no such event would occur as a consequence of the
Borrowing or L/C Facility issuance.
Each Notice of Borrowing, Notice of Continuation/Conversion and request for the
issuance of a L/C Facility submitted by the Borrower hereunder shall constitute
a representation and warranty by the Borrower, as of the date of each such
notice or application and as of the date of each Borrowing or continuation or
conversion or issuance, as applicable, that the conditions in Section 2.2 are
satisfied.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Lender that
the following are, and after giving effect to the transactions contemplated by
this Agreement will be, true, correct and complete:
3.1 Corporate Existence and Power. The Borrower and each of its
Subsidiaries:
(a) is a corporation, limited liability company or limited partnership,
as applicable, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, as applicable;
(b) has all material governmental licenses, authorizations, consents
and approvals to own its assets and carry on its business;
(c) has the power and authority to execute, deliver, and perform its
obligations under, the Loan Documents to which it is a party;
(d) is duly qualified as a foreign corporation, limited liability
company or limited partnership, as applicable, and licensed and in good
standing, under the laws of each jurisdiction
14
where its ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(e) is in compliance with all Requirements of Law;
except, in each case referred to in clauses (b), (d) or (e), to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
3.2 Corporate Authorization, No Contravention. (a) The execution,
delivery and performance by the Borrower of this Agreement, and Borrower and its
Subsidiaries of any other Loan Document and Related Agreement to which such
Person is party, have been duly authorized by all necessary action, and do not
and will not:
(i) contravene the terms of any of that Person's Organization
Documents;
(ii) conflict with or result in any material breach or
contravention of, or the creation of any Lien under, any document
evidencing any material Contractual Obligation to which such Person is
a party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its Property is subject; or
(iii) violate any material Requirement of Law in any material
respect.
(b) Schedule 3.2 sets forth the authorized equity securities of each of
Borrower and its Subsidiaries, giving effect to the TIAA Transaction. All issued
and outstanding equity securities of Borrower and its Subsidiaries are duly
authorized and validly issued, fully paid, non-assessable, and free and clear of
all Liens other than, with respect to the equity securities of Subsidiaries of
Borrower, those in favor of Agent, for the benefit of Agent and Lenders, and
such securities were issued in compliance with all applicable state and federal
laws concerning the issuance of securities. All of the issued and outstanding
equity securities of Borrower are owned by the Persons and in the amounts set
forth on Schedule 3.2. Except as set forth on Schedule 3.2, there are no
pre-emptive or other outstanding rights, options, warrants, conversion rights or
other similar agreements or understandings for the purchase or acquisition of
any shares of capital stock or other securities of any such entity.
3.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Borrower or
any of its Subsidiaries of this Agreement, any other Loan Document or any
Related Agreement except (a) for recordings and filings in connection with the
Liens granted to the Agent under the Collateral Documents, (b) those obtained or
made on or prior to the Effective Date and (c) in the case of any Related
Agreement, those which, if not obtained or made, could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.
3.4 Binding Effect. This Agreement and each other Loan Document and
Related Agreement to which the Borrower or any of its Subsidiaries is a party
constitute the legal, valid and binding obligations of the Borrower and each
Subsidiary which is a party thereto, enforceable against such Person in
accordance with their respective terms, except as
15
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
3.5 Litigation. Except as specifically disclosed in Schedule 3.5, there
are no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of the Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Borrower, or its
Subsidiaries or any of their respective Properties which:
(a) purport to affect or pertain to this Agreement, any other Loan
Document or Related Agreement, or any of the transactions contemplated hereby or
thereby; or
(b) if determined adversely to Borrower or any of its Subsidiaries,
could reasonably be expected to result in equitable relief or monetary
judgment(s), individually or in the aggregate, in excess of $250,000 of
insurance coverage with respect thereto.
No injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement, any other
Loan Document or any Related Agreement, or directing that the transactions
provided for herein or therein not be consummated as herein or therein provided.
3.6 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Borrower or the grant or perfection
of the Agent's Liens on the Collateral. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect or that would, if such
default had occurred after the Effective Date, create an Event of Default under
subsection 7.1(e).
3.7 ERISA Compliance. (a) Schedule 3.7 lists all Qualified Plans and
Multiemployer Plans. Borrower and each of its Subsidiaries is in compliance in
all material respects with all requirements of each Plan, and each Plan complies
in all material respects, and is operated in compliance in all material
respects, with all applicable provisions of law. Borrower is not aware, after
due inquiry, of any item of non-compliance which could potentially result in the
loss of Plan qualification or tax-exempt status, or give rise to a material
excise tax or other penalty imposed by a Governmental Authority. No material
proceeding, claim, lawsuit and/or investigation is pending concerning any Plan.
All required contributions have been and will be made in accordance with the
provisions of each Qualified Plan and Multiemployer Plan, and with respect to
Borrower or any ERISA Affiliate, there are, have been and will be no material
Unfunded Pension Liabilities or Withdrawal Liabilities.
(b) No ERISA Event has occurred or is expected to occur with respect to
any Qualified Plan, Multiemployer Plan or Plan.
(c) Members of the Controlled Group currently comply and have complied
in all material respects with the notice and continuation coverage requirements
of Section 4980B of the Code.
3.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
intended to be and shall be used solely for the purposes set forth in and
permitted by Section 4.10, and are
16
intended to be and shall be used in compliance with Section 5.8. Neither the
Borrower nor any of its Subsidiaries is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
3.9 Title to Property; Real Property. As of the Effective Date, the
Property of the Borrower and its Subsidiaries is subject to no Liens, other than
Permitted Liens. The Borrower and each of its Subsidiaries have good record and
marketable title in fee simple to, or valid leasehold interests in, all real
Property necessary or used in the ordinary conduct of their respective
businesses, except for Permitted Liens. Schedule 3.9 lists the street address
(including the county), PIN, legal description and identity of the owner of
record of each real Property owned, leased or operated by Borrower or by any of
its Subsidiaries and identifies all leases and contracts of sale which encumber
that portion of each such real Property which is used, leased or owned by
Borrower or by any of its Subsidiaries.
3.10 Taxes. The Borrower and its Subsidiaries have filed all Federal
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings diligently prosecuted and for which adequate reserves
have been provided in accordance with GAAP and no notice of Lien has been filed
or recorded. There is no proposed tax assessment against the Borrower or any of
its Subsidiaries which would, if the assessment were made, have a Material
Adverse Effect.
3.11 Financial Condition. (a) Each of (i) the audited consolidated
balance sheet of the Borrower and its Subsidiaries dated December 31, 2000, and
the related audited consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal year ended on that date and
(ii) the unaudited interim consolidated balance sheet of Borrower and its
Subsidiaries dated May 31, 2001 and the related unaudited consolidated
statements of income, shareholders' equity and cash flows for the five (5)
months then ended:
(x) were prepared in accordance with GAAP consistently applied
throughout the respective periods covered thereby, except as otherwise
expressly noted therein, subject to, in the case of the unaudited
interim financial statements, normal year-end adjustments and the lack
of footnote disclosures; and
(y) present fairly the consolidated financial condition of the
Borrower and its Subsidiaries as of the dates thereof and results of
operations for the periods covered thereby.
(b) Since December 31, 2000, there has been no Material Adverse Effect.
(c) Borrower and its Subsidiaries have no Indebtedness other than
Indebtedness permitted pursuant to Section 5.5 and have no Contingent
Obligations other than Contingent Obligations permitted pursuant to Section 5.9.
3.12 Environmental Matters. (a) The on-going operations of the Borrower
and each of its Subsidiaries comply in all respects with all Environmental Laws,
except such non-compliance
17
which could not (if enforced in accordance with applicable law) reasonably be
expected to result in a Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries have obtained all
licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") and necessary for their respective
ordinary course operations, all such Environmental Permits are in good standing,
and the Borrower and each of its Subsidiaries are in compliance with all
material terms and conditions of such Environmental Permits, except where the
failure to obtain or to be in compliance with such Environmental Permits could
not reasonably be expected to result in material liability to Borrower or any of
its Subsidiaries and could not reasonably be expected to result in a Material
Adverse Effect.
(c) None of the Borrower, any of its Subsidiaries or any of their
respective present Property or operations, is subject to any outstanding written
order from or agreement with any Governmental Authority, nor subject to any
judicial or docketed administrative proceeding, respecting any Environmental
Law, Environmental Claim or Hazardous Material.
(d) To Borrower's knowledge, there are no Hazardous Materials or other
conditions or circumstances existing with respect to any Property, or arising
from operations prior to the Effective Date, of the Borrower or any of its
Subsidiaries that would reasonably be expected to result in a Material Adverse
Effect. In addition, neither the Borrower nor any of its Subsidiaries has any
underground storage tanks (i) that are not properly registered or permitted
under applicable Environmental Laws, or (ii) that are leaking or disposing of
Hazardous Materials.
3.13 Collateral Documents. All representations and warranties of the
Borrower, any of its Subsidiaries or any other party to any Collateral Document
(other than the Agent and/or any Lender) contained in the Collateral Documents
are true and correct in all material respects.
3.14 Regulated Entities. None of the Borrower, any Person controlling
the Borrower, or any Subsidiary of the Borrower, is (a) an "investment company"
within the meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the Public Utility Holding Borrower Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
3.15 Solvency. The Borrower, individually, is, and the Borrower and its
Subsidiaries, on a consolidated basis, are, Solvent.
3.16 Labor Relations. There are no strikes, lockouts or other labor
disputes against the Borrower or any of its Subsidiaries, or, to the best of the
Borrower's knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries, in any case which would reasonably be expected to have a Material
Adverse Effect and no significant unfair labor practice complaint is pending
against the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against any of them before any Governmental Authority in
any case which could reasonably be expected to have a Material Adverse Effect.
3.17 Copyrights, Patents, Trademarks and Licenses, etc. Schedule 3.17
identifies all United States and foreign patents, trademarks, service marks,
trade names and copyrights, and all
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registrations and applications for registration thereof and all licenses
thereof, owned or held by Borrower or any of its Subsidiaries on the date of
this Agreement and identifies the jurisdictions in which such registrations and
applications have been filed. Except as otherwise disclosed in Schedule 3.17, on
the date of this Agreement Borrower and its Subsidiaries are the sole beneficial
owners of, or have the right to use, free from any restrictions, claims, rights
encumbrances or burdens, the intellectual property identified on Schedule 3.17
and all other processes, designs, formulas, computer programs, computer software
packages, trade secrets, inventions, product manufacturing instructions,
technology, research and development, know-how and all other intellectual
property that are necessary for the operation of Borrower's and its
Subsidiaries' businesses as being operated on the Effective Date, except to the
extent that the failure to be the owner thereof or have the right to use any
such item free from restrictions will not and could not reasonably be expected
to have a Material Adverse Effect. Each patent, trademark, service ▇▇▇▇, trade
name, copyright and license listed on Schedule 3.17 is in full force and effect
except to the extent the failure to be in effect will not and could not
reasonably be expected to have a Material Adverse Effect. Except as set forth in
Schedule 3.17, to the best knowledge of Borrower, as of the Effective Date (a)
none of the present or contemplated products or operations of Borrowers or its
Subsidiaries infringes any patent, trademark, service ▇▇▇▇, trade name,
copyright, license of intellectual property or other right owned by any other
Person, and (b) there is no pending or threatened claim or litigation against or
affecting Borrower or any of its Subsidiaries contesting the right of any of
them to manufacture, process, sell or use any such product or to engage in any
such operation except for claims and/or litigation which will not and could not
reasonably be expected to have a Material Adverse Effect. None of the trademark
registrations set forth on Schedule 3.17 is an "intent-to-use" registration
except as set forth on Schedule 3.17.
3.18 Subsidiaries. The Borrower has no Subsidiaries or equity
investments in any other corporation or entity other than those specifically
disclosed in Schedule 3.2, and other than a one-third (1/3) equity membership
interest in the DuPage LLC.
3.19 Brokers' Fees; Transaction Fees. Neither the Borrower nor any of
its Subsidiaries has any obligation to any Person in respect of any finder's,
broker's or investment banker's fee in connection with the transactions
contemplated hereby.
3.20 Insurance. The Properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar Properties in localities where the Borrower or such
Subsidiary operates. A true and complete listing of such insurance, including
issuers, coverages and deductibles, has been provided to the Agent.
3.21 Legal Names, Location of Properties, Bank Accounts. Schedule 3.21A
lists the exact legal name, Federal Employer Identification Number, and street
address (including the county) of the chief executive offices of Borrower and of
each of Borrower's Subsidiaries. Schedule 3.21B lists the street address
(including the county) of each location at which equipment or inventory of the
Borrower or of any of its Subsidiaries is located (the "Collateral Locations")
and specifies the arrangement (e.g., lease, bailment, consignment, etc.)
pursuant to which such equipment or inventory is at that location. Schedule
3.21C lists all bank, brokerage, deposit,
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money market, securities or other similar accounts which the Borrower or any of
its Subsidiaries maintain, and specifies the name and account number for each
such account at the applicable depositary institution or brokerage house.
3.22 Intentionally Omitted.
3.23 Material Contracts. Schedule 3.23 contains a complete listing of
all material contracts and Contractual Obligations of Borrower and each of its
Subsidiaries oral or written as of the date of this Agreement (the "Material
Contracts"). As of the date of this Agreement, all such Material Contracts are
in full force and effect and, except as indicated on Schedule 3.23 to Borrower's
knowledge, no party to any such contract is in default of its obligations
thereunder and no such default has been asserted. Neither the execution and
delivery of this Agreement and the Loan Documents by Borrower, nor the
performance of any of its obligations hereunder or thereunder, will result in
the breach or default of an obligation of any Person under a Material Contract,
or will permit any Person other than Lenders to place a lien on any Property of
Borrower or any Subsidiary or to accelerate any Indebtedness owed by Borrower or
any Subsidiary.
3.24 Full Disclosure. None of the representations or warranties made by
the Borrower or any of its Subsidiaries in the Loan Documents as of the date
such representations and warranties are made or deemed made, and none of the
statements contained in each exhibit, written report, written statement or
certificate furnished by or on behalf of the Borrower or any of its Subsidiaries
in connection with the Loan Documents (including the offering and disclosure
materials, if any, delivered by or on behalf of the Borrower to the Lenders
prior to the Effective Date), contains any untrue statement of a material fact
or omits any material fact required to be stated therein or necessary to make
the statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
ARTICLE IV - AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Lender shall
have any Commitment hereunder, or any Loan or other Obligation (other than
contingent indemnification Obligations to the extent no claim giving rise
thereto has been asserted) shall remain unpaid or unsatisfied, unless the
Required Lenders waive compliance in writing:
4.1 Financial Statements. The Borrower shall maintain, and shall cause
each of its Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to permit the
preparation of financial statements in conformity with GAAP (provided that
monthly financial statements shall not be required to have footnote disclosure
and are subject to normal year-end adjustments). The Borrower shall deliver to
the Agent and each Lender in form and detail reasonably satisfactory to the
Agent and the Required Lenders:
(a) as soon as available, but not later than one hundred twenty (120)
days after the end of each fiscal year, a copy of the audited consolidated
balance sheet of the Borrower as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for
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the previous fiscal year, and accompanied by the opinion of any "Big Five" or
other nationally-recognized independent public accounting firm reasonably
acceptable to the Agent which report shall state that such consolidated
financial statements present fairly in all material respects the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited
because of a restricted or limited examination by such accountant of any
material portion of the Borrower's or any Subsidiary's records; and
(b) as soon as available, but not later than thirty (30) days after the
end of each fiscal month of each year, a copy of the unaudited consolidated and
consolidating balance sheets of the Borrower and each of its Subsidiaries, and
the related consolidated and consolidating statements of income, shareholders'
equity and cash flows as of the end of such month and for the portion of the
fiscal year then ended, all certified on behalf of Borrower by an appropriate
Responsible Officer as being complete and correct and fairly presenting, in
accordance with GAAP, the financial position and the results of operations of
the Borrower and the Subsidiaries, subject to normal year-end adjustments and
absence of footnote disclosure.
4.2 Certificates; Availability Certificates; Other Information. The
Borrower shall furnish to the Agent and each Lender:
(a) INTENTIONALLY OMITTED.
(b) concurrently with the delivery of the financial statements referred
to in subsections 4.1(a) and 4.1(b) above, a fully and properly completed
Compliance Certificate in the form of Exhibit 4.2(b), certified on behalf of
Borrower by a Responsible Officer;
(c) promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to its shareholders generally;
and promptly after the same are filed, copies of all financial statements and
regular, periodic or special reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or similar
Governmental Authority;
(d) (i) concurrently with the delivery of the financial statements
pursuant to Sections 4.1(b) an Availability Certificate certified by Borrower
and executed on its behalf by a Responsible Officer, as of the end of the
most-recently ended fiscal month or as at such other date as the Agent may
reasonably require;
(e) together with each delivery of financial statements pursuant to
subsection 4.1(a) and (b), (i) to the extent prepared by Borrower or its
management, a management report, in reasonable detail, signed by the chief
financial officer of the Borrower, describing the operations and financial
condition of the Borrower and its Subsidiaries for the month and the portion of
the fiscal year then ended (or for the fiscal year then ended in the case of
annual financial statements), and (ii) a report setting forth in comparative
form the corresponding figures for the corresponding periods of the previous
fiscal year and the corresponding figures from the most recent projections for
the current fiscal year delivered pursuant to subsection 4.2(g) and discussing
the reasons for any significant variations;
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(f) as soon as available and in any event no later than the last day of
each fiscal year of the Borrower, projections of the Borrower's (and its
Subsidiaries') consolidating and consolidated financial performance for the
forthcoming fiscal year, on a month by month basis;
(g) annually, concurrently with the Borrower's delivery of the
projections under subsection 4.2(f), the Borrower shall supplement in writing
and deliver to the Agent revisions of and supplements to the Schedules hereto
related to Article III hereof to the extent necessary to disclose new or changed
facts or circumstances after the Effective Date; provided that delivery or
receipt of such subsequent disclosure shall not constitute a waiver by the Agent
or any Lender or a cure of any Default or Event of Default resulting in
connection with the matters disclosed;
(h) promptly upon receipt thereof, copies of any reports submitted by
the Borrower's or any of its Subsidiaries' certified public accountants in
connection with each annual, interim or special audit or review of any type of
the financial statements or internal control systems of the Borrower made by
such accountants, including any comment letters submitted by such accountants to
management of the Borrower in connection with their services;
(i) from time to time, if the Agent determines that obtaining
appraisals is necessary in order for the Agent or any Lender to comply with
applicable laws or regulations, and at any time if a Default or an Event of
Default shall have occurred and be continuing, the Agent may, or may require the
Borrower to, in either case at the Borrower's expense, obtain appraisals in form
and substance and from appraisers reasonably satisfactory to the Agent stating
the then current fair market value of all or any portion of the real or personal
property of the Borrower or any of its Subsidiaries;
(j) Copies of any environmental site assessments which are provided to
U.S. Bank or any of the U.S. Bank Facility Lenders under the U.S. Bank
Facilities with respect to any real Property owned or operated by Borrower or
any of its Subsidiaries; and
(k) promptly, such additional business, financial, corporate affairs
and other information as the Agent may from time to time reasonably request.
4.3 Notices. The Borrower shall promptly notify the Agent and each
Lender of any of the following, promptly (and in no event later than three (3)
Business Days after a Responsible Officer becoming aware thereof):
(a) the occurrence or existence of any Default or Event of Default, or
any event or circumstance that foreseeably will become a Default or Event of
Default;
(b) any breach or non-performance of, or any default under, any
Contractual Obligation of the Borrower or any of its Subsidiaries, or any
violation of, or non-compliance with, any Requirement of Law, which could
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect, including a description of such breach,
non-performance, default, violation or non-compliance and the steps, if any, the
Borrower or such Subsidiary has taken, is taking or proposes to take in respect
thereof;
(c) any dispute, litigation, investigation, proceeding or suspension
which may exist at any time between the Borrower or any of its Subsidiaries and
any Governmental Authority which
22
could reasonably be expected to result, either individually or in the aggregate,
in a Material Adverse Effect;
(d) the commencement of, or any material development in, any litigation
or proceeding affecting the Borrower or any Subsidiary (i) in which the amount
of damages claimed is $250,000 (or its equivalent in another currency or
currencies) or more, (ii) in which injunctive or similar relief is sought and
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect, or (iii) in which the relief sought is an injunction or other
stay of the performance of this Agreement, any Loan Document or any Related
Agreement;
(e) any of the following if the same could reasonably be expected to
have a Material Adverse Effect: (i) any enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Borrower or any of its Subsidiaries or any of their respective Properties
pursuant to any applicable Environmental Laws, (ii) any other Environmental
Claims, and (iii) any environmental or similar condition on any real property
adjoining the property of the Borrower or any Subsidiary known to Borrower that
could reasonably be anticipated to cause Borrower's or any of its Subsidiaries'
property or any part thereof to be subject to any material restrictions on the
ownership, occupancy, transferability or use of such property under any
Environmental Laws;
(f) any of the following if the same could reasonably be expected to
have a Material Adverse Effect, together with a copy of any notice with respect
to such event that may be required to be filed with a Governmental Authority and
any notice delivered by a Governmental Authority to the Borrower or any member
or its Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Qualified Plan that is subject to
Title IV of ERISA or Section 412 of the Code by any member of the
Controlled Group;
(iii) the adoption of any amendment to a Qualified Plan that
is subject to Title IV of ERISA or Section 412 of the Code, if such
amendment results in a material increase in benefits or unfunded
liabilities; or
(iv) the commencement of contributions by any member of the
Controlled Group to any Qualified Plan that is subject to Title IV of
ERISA or Section 412 of the Code;
(g) any event which could reasonably be expected to give rise to or
cause a Material Adverse Effect subsequent to the date of the most recent
audited financial statements of the Borrower delivered to the Lenders pursuant
to this Agreement;
(h) any material change in accounting policies or financial reporting
practices by the Borrower or any of its Subsidiaries (and, in such event,
Borrower shall promptly (and in any event within five (5) days) provide to Agent
and the Lenders restated Compliance Certificates for each of the most recently
ended three (3) months reflecting such change(s) in accounting policies or
financial reporting practices on a pro forma basis, in form satisfactory to
Agent and Required Lenders, and shall thereafter, concurrently with each
Compliance Certificate pursuant to Section 4.2(b), an updated set of the
calculations called for therein reflecting such change(s) in
23
accounting policies or financial reporting practices, in form satisfactory to
Agent and Required Lenders);
(i) any labor controversy resulting in or threatening to result in any
strike, work stoppage, boycott, shutdown or other labor disruption against or
involving the Borrower or any of its Subsidiaries if the same could reasonably
be expected to have a Material Adverse Effect; and
(j) the creation, establishment or acquisition of any Subsidiary.
Each notice pursuant to this Section 4.3 shall be accompanied by a written
statement by a Responsible Officer on behalf of Borrower setting forth details
of the occurrence referred to therein, and stating what action the Borrower
proposes to take with respect thereto and at what time. Each notice under
subsection 4.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been breached or
violated.
4.4 Preservation of Corporate Existence, Etc. The Borrower shall, and
shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its existence and
good standing under the laws of its state or jurisdiction of incorporation or
organization except, with respect to Subsidiaries, in connection with
transactions permitted by Section 5.3;
(b) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary in the
normal conduct of its business except in connection with transactions permitted
by Section 5.3 and sales of assets permitted by Section 5.2 and except as could
not reasonably be expected to have a Material Adverse Effect;
(c) use its reasonable efforts, in the Ordinary Course of Business, to
preserve its business organization and preserve the goodwill and business of the
customers, suppliers and others having material business relations with it; and
(d) preserve or renew all of its registered trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
4.5 Maintenance of Property. The Borrower shall maintain, and shall
cause each of its Subsidiaries to maintain, and preserve all its Property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
4.6 Insurance. The Borrower shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable independent
insurers, insurance with respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, including workers'
compensation insurance, public liability and property and casualty insurance,
which amounts shall not be reduced by the Borrower or any of its Subsidiaries in
the absence of thirty (30) days' prior notice to the Agent and business
interruption insurance in an amount not less than
24
$5,000,000. Schedule 4.6 hereto contains a true and complete listing of
Borrower's current insurance policies, showing the policy numbers, coverages,
carriers, deductibles and expiration dates for such policies. All property
damage and casualty insurance shall name the Agent as loss payee/mortgagee, all
liability insurance shall name the Agent and the Lenders as additional insureds
and all business interruption insurance shall name Agent as assignee. Upon
request of the Agent or any Lender, the Borrower shall furnish the Agent, with
sufficient copies for each Lender, at reasonable intervals (but not more than
once per calendar year) a certificate of a Responsible Officer on behalf of the
Borrower (and, if requested by the Agent, any insurance broker of the Borrower)
setting forth the nature and extent of all insurance maintained by the Borrower
and its Subsidiaries in accordance with this Section 4.6. Unless the Borrower
provides Agent with evidence of the insurance coverage required by this
Agreement, Agent may purchase insurance at the Borrower's expense to protect
Agent's and Lenders' interests in Borrower's and its Subsidiaries' properties.
This insurance may, but need not, protect the Borrower's and its Subsidiaries'
interests. The coverage that Agent purchases may not pay any claim that the
Borrower or any Subsidiary makes or any claim that is made against the Borrower
or any Subsidiary in connection with said property. The Borrower may later
cancel any insurance purchased by Agent, but only after providing Agent with
evidence that the Borrower has obtained insurance as required by this Agreement.
If Agent purchases insurance, the Borrower will be responsible for the costs of
that insurance, including interest and any other charges Agent may impose in
connection with the placement of insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the insurance may be
added to the Obligations. The costs of the insurance may be more than the cost
of insurance that the Borrower may be able to obtain on its own.
4.7 Payment of Obligations. The Borrower shall, and shall cause its
Subsidiaries to, pay, discharge and perform as the same shall become due and
payable or required to be performed, all their respective obligations and
liabilities, including:
(a) all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently prosecuted which stay the
enforcement of any Lien and for which adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien upon
its Property unless the same are being contested in good faith by appropriate
proceedings diligently prosecuted which stay the imposition or enforcement of
the Lien and for which adequate reserves in accordance with GAAP are being
maintained by Borrower;
(c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained herein and/or in any instrument or agreement
evidencing such Indebtedness; and
(d) the performance of all obligations under any Contractual Obligation
to which Borrower or any of its Subsidiaries is bound, or to which it or any of
its properties is subject, including the Related Agreements, except where the
failure to perform would not reasonably be expected to have a Material Adverse
Effect.
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4.8 Compliance with Laws. The Borrower shall comply, and shall cause
each of its Subsidiaries to comply, in all material respects, with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including, without limitation, all Environmental Laws), except (a)
such as may be contested in good faith by appropriate proceedings diligently
prosecuted without risk of loss of any Collateral, as to which a bona fide
dispute exists and for which appropriate reserves have been established on the
Borrower's financial statements, and (b) where the failure to comply could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
4.9 Inspection of Property and Books and Records. The Borrower shall
maintain and shall cause each of its Subsidiaries to maintain proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Borrower and such Subsidiaries.
The Borrower shall permit, and shall cause each of its Subsidiaries to permit,
representatives and independent contractors of the Agent (at the expense of the
Borrower not to exceed one (1) time per year unless an Event of Default has
occurred and is continuing), or any Lender (at such Lender's expense unless an
Event of Default shall have occurred and be continuing), to visit and inspect
any of their respective Properties, to examine their respective corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss their respective affairs, finances and accounts with their
respective directors, officers and independent public accountants, at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower; provided, however, when
an Event of Default exists the Agent or any Lender may do any of the foregoing
at the expense of the Borrower at any time during normal business hours and
without advance notice.
4.10 Use of Proceeds. The Borrower shall use the proceeds of the Loans
and L/C Facilities solely as follows:
(a) to make equity investments in RE Holdings, which RE Holdings will
use solely to finance its acquisition, construction and development of real
Property and fixtures and its purchases of services directly related thereto
with a view to developing Clubs;
(b) to make improvements in real Property owned or leased by Borrower
with a view to developing Clubs;
(c) to finance the working capital requirements of Borrower and its
Subsidiaries which arise in their respective Ordinary Course of Business;
(d) to maintain the Rent Reserve fully funded;
(e) the TIAA Letter of Credit shall be used solely to secure the TIAA
Facilities;
(f) the U.S. Bank Letter of Credit shall be used solely to secure the
U.S. Bank Facilities; and
26
(g) to finance Borrower's direct acquisition, construction and
development of real Property and fixtures and its purchases of services directly
related thereto with a view to developing Clubs.
in each case, to the extent that such uses are not in contravention of any
Requirement of Law or in violation of this Agreement.
4.11 Solvency. The Borrower, individually, and the Borrower and its
Subsidiaries, on a consolidated basis, shall at all times be Solvent.
4.12 Key Man Life Insurance. The Borrower shall maintain a key man life
insurance policy on the life of ▇▇▇▇▇▇ ▇▇▇▇▇▇ at all times during which ▇▇▇▇▇▇
▇▇▇▇▇▇ shall be an employee or officer of Borrower in an amount not less than
$5,000,000 and the Agent, as agent for the Lenders, shall be the named
beneficiary of such policy. Such policy shall be issued by a financially sound
and responsible insurance company authorized to do business in the State of
Minnesota.
4.13 RE Holdings Leases. The Borrower shall cause RE Holdings to enter
into and maintain in effect RE Holdings Leases with the Borrower as sole tenant
for each real Property owned by RE Holdings. Each RE Holdings Lease will be in
substantially the form of Exhibit 4.13 and will
(a) have an initial term of not less than ten (10) years;
(b) provide for monthly net rental payments to RE Holdings of not more
than 125% of RE Holdings' debt service requirements to U.S. Bank during the same
month;
(c) require RE Holdings to rebate to Borrower as and when and to the
extent permitted by the U.S. Bank Financing Agreements; and
(d) contain such other terms and restrictions on RE Holdings and
Borrower as the Agent may reasonably require.
The Borrower shall cause RE Holdings to consent to the Agent taking a first
priority leasehold mortgage on Borrower's interest in each RE Holdings Lease on
such terms as the Agent may require. The Borrower shall cause RE Holdings to
rebate promptly to Borrower in cash all rent to which Borrower is entitled to a
rebate under the terms of each RE Holdings Lease as and when payment thereof is
permitted by the U.S. Bank Financing Agreements. The Borrower shall comply with
its obligations under each RE Holdings Lease in all respects such that neither
RE Holdings nor any third party lender (whether pursuant to the U.S. Bank
Facilities or otherwise) shall have the right to terminate any RE Holdings Lease
by reason of default by the Borrower thereunder.
In the event that any real Property held by RE Holdings is refinanced with TIAA
in accordance with the terms of this Agreement, such real Property may be
transferred to a TIAA Subsidiary and any related RE Holdings Lease may be
terminated, provided that a TIAA Subsidiary Lease in respect of such real
Property is concurrently executed by the Borrower and the applicable TIAA
Subsidiary.
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4.14 TIAA Subsidiary Leases. The Borrower shall cause the applicable
TIAA Subsidiary to enter into and maintain in effect leases with the Borrower as
sole tenant for each real Property owned by such TIAA Subsidiary and subject to
financing provided by TIAA (each a "TIAA Subsidiary Lease" and collectively the
"TIAA Subsidiary Leases"). Each TIAA Subsidiary Lease will be in substantially
the form of Exhibit 4.14 and will
(a) have an initial term of not less than twenty (20) years;
(b) provide for monthly net rental payments to the applicable TIAA
Subsidiary at market rates as they exist on the date when the applicable
financing is provided by TIAA, plus annual increases of 2.5%; and
(c) contain such other terms and restrictions on the applicable TIAA
Subsidiary and Borrower as the Agent may reasonably require.
The Borrower shall comply with its obligations under each TIAA Subsidiary Lease
in all respects such that neither any TIAA Subsidiary nor TIAA shall have the
right to terminate any TIAA Subsidiary Lease by reason of default by the
Borrower thereunder.
4.15 Mandatory Dividends.
(a) Borrower shall cause LT Kids promptly to dividend to Borrower all
cash and Cash Equivalents which come into the possession of LT Kids and which
are not required to satisfy its immediate working capital requirements.
(b) Borrower shall cause RE Holdings to distribute promptly to Borrower
all cash and Cash Equivalents which come into the possession of RE Holdings and
which are not required by RE Holdings to satisfy (i) its immediate obligations
to contractors and vendors entered into in the Ordinary Course of Business, (ii)
requirements of title company construction escrows and other escrows incurred in
the Ordinary Course of Business or (iii) its obligation to collect, hold and
rebate rent, when applicable, to Borrower, as landlord, pursuant to the terms of
the RE Holdings Leases.
(c) Borrower shall cause FCA Restaurant Holdings to distribute to its
owners all cash and Cash Equivalents which come into the possession of FCA
Restaurant Holdings and which are not required by FCA Restaurant Holdings to
satisfy its obligations to contractors, vendors, employees and other pursuant to
the Ordinary Course of Business of FCA Restaurant Holdings.
(d) Borrower shall cause each TIAA Subsidiary to enter into an
agreement (each, a "TIAA Subsidiary Upstream Distribution Agreement") with
Borrower and Agent, in form and substance reasonably satisfactory to Agent, (i)
requiring such TIAA Subsidiary to distribute promptly (and not less often than
monthly) to Borrower all cash and Cash Equivalents which come into the
possession of such TIAA Subsidiary and which are not required by such TIAA
Subsidiary to satisfy (x) its immediate obligations to contractors and vendors
entered into in the Ordinary Course of Business, or (y) its obligation under the
TIAA Facilities, and (ii) assigning to Agent a security interest in Borrower's
right, title and interest in, to and under such agreement and to all such
payments required to be made thereunder, and Borrower shall cause each TIAA
Subsidiary to comply with each such agreement.
28
(e) Borrower shall cause FCA Construction Holdings promptly to dividend
to Borrower all cash and Cash Equivalents which come into the possession of FCA
Construction Holdings and which are not required to satisfy its immediate
working capital requirements.
4.16 Rent Reserve. The Borrower shall establish the Rent Reserve, which
shall be fully funded by September 30, 2001 with respect to all of the real
Property of the TIAA Subsidiaries subject to the TIAA Facilities as of the
Effective Date. At each time after the Effective Date that any real Property of
the Borrower or any of its Subsidiaries becomes subject to financing provided by
TIAA which is not subject to such financing as of the Effective Date (each such
parcel of real Property, when so financed with TIAA, being referred to as an
"Additional TIAA Property"), the Borrower shall cause the Rent Reserve to be
increased by an amount equal to five (5) months' principal and interest and
impositions of the required payments of the related TIAA Financing Agreements at
the time when such related TIAA Financing Agreements are executed.
4.17 Further Assurances; Post Closing Deliveries. (a) The Borrower
shall ensure that all written information, exhibits and reports furnished to the
Agent or the Lenders do not and will not contain any untrue statement of a
material fact and do not and will not omit to state any material fact or any
fact necessary to make the statements contained therein not misleading in light
of the circumstances in which made, and will promptly disclose to the Agent and
the Lenders and correct any defect or error that may be discovered therein or in
any Loan Document or in the execution, acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent, the Borrower shall (and shall
cause any of its Subsidiaries to) take such additional actions as the Agent may
reasonably require from time to time in order:
(i) to carry out more effectively the purposes of this
Agreement or any other Loan Document;
(ii) to subject to the Liens created by any of the Collateral
Documents any of the Properties, rights or interests covered by any of
the Collateral Documents;
(iii) to perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and the Liens intended to
be created thereby;
(iv) to cause any Subsidiary to guaranty the obligations of
Borrower to the Lenders, other than (A) RE Holdings for so long as the
U.S. Bank Facilities prohibit RE Holdings from giving such a guaranty,
and (B) the TIAA Subsidiaries for so long as the TIAA Facilities
prohibit the TIAA Subsidiaries from giving such a guaranty;
(v) to the extent required by clause (c) below, to create and
perfect new Liens in favor of Agent for the benefit of Agent and the
Lenders, subject to Permitted Liens, if any, except (A) as prohibited
with respect to RE Holdings by the U.S. Bank Facilities, (B) as
prohibited with respect to the TIAA Subsidiaries by the TIAA
Facilities, and (C) for the leasehold interest with respect to the real
Property in Plymouth, Minnesota (the "Plymouth Facility"); and
29
(vi) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Agent and Lenders the rights
granted or now or hereafter intended to be granted to the Agent and the
Lenders under any Loan Document or under any other document executed in
connection therewith.
Furthermore, Borrower shall pledge the stock or other equity interest of each of
its Subsidiaries to Agent, for the benefit of Agent and Lenders, to secure the
Obligations, except as otherwise approved in writing by the Required Lenders and
except for the pledge of the equity interests of the TIAA Subsidiaries to the
extent prohibited by the TIAA Facilities.
(c) Other than with respect to the Excluded Real Property, Borrower
shall, and shall cause its Subsidiaries other than the TIAA Subsidiaries to,
take the following actions for the benefit of the Agent and the Lenders, with
respect to any real Property or real Property interest which is held now or
hereafter acquired by any of the Borrower, LT Kids, FCA Restaurant Holdings, FCA
Construction Holdings or by RE Holdings:
(i) By September 30, 2001, with respect to the real Property
interests of any of Borrower, LT Kids, FCA Restaurant Holdings, FCA
Construction Holdings or RE Holdings now existing, other than as to the
Excluded Real Property, Borrower shall deliver to Agent:
(A) copies of memorandums of leasehold interest in
respect of each leasehold of Borrower as a lessee (including,
but not limited to, all RE Holdings Leases), in form and
substance satisfactory to Agent which has been executed by
Borrower;
(B) except to the extent prohibited by the applicable
lease(s), original collateral assignments of Borrower's
leasehold interests for each parcel of real Property Borrower
leases from any Person (including RE Holdings), in favor of
the Agent for the benefit of the Agent and the Lenders and in
form and substance satisfactory to Agent, which have been
executed by Borrower;
(C) except to the extent prohibited by the U.S. Bank
Facilities, an original mortgage in favor of the Agent for the
benefit of the Agent and the Lenders for each parcel of real
Property owned by any of Borrower, LT Kids, FCA Restaurant
Holdings, FCA Construction Holdings or RE Holdings, in form
and substance satisfactory to Agent, which has been executed
by Borrower or the applicable Subsidiary of Borrower;
(D) for each mortgage referred to in clause (c)(i)(C)
above, if and when the same has been recorded in the
applicable recording office pursuant to clause (c)(i)(E)
below, an original ALTA mortgagee policy of title insurance or
a binder issued by a title insurance company reasonably
satisfactory to the Agent insuring (or undertaking to insure,
in the case of a binder) that such mortgage creates and
constitutes a valid first Lien against Borrower's or such
Subsidiary's fee simple interest in such real Property in
favor of the Agent, for the benefit of Agent and the Lenders,
subject only to exceptions reasonably acceptable to the Agent,
with
30
such endorsements and affirmative insurance as the Agent may
reasonably request; and
(E) evidence satisfactory to the Agent that such
memorandum of leasehold interest, collateral assignment of
lease or mortgage has been recorded of record in the
applicable jurisdictions) and all recording fees, mortgage
taxes, documentary stamp or intangible taxes, title insurance
charges and other similar items payable in connection with the
matters referred to in clauses (c)(i)(A) through (c)(i)(D)
above have been paid; provided, however, that so long as no
Default or Event of Default exists, such recording and payment
of fees and taxes shall not be required in respect of any
memorandum of leasehold interest or collateral assignment of
lease executed and delivered to Agent if the cost of such
recording exceeds $5,000. Borrower agrees, however, that at
any time when a Default or Event of Default exists Agent may
record any such memorandum of leasehold interest or collateral
assignment of lease at Borrower's sole cost and expense,
without notice to or consent of Borrower, and Borrower further
agrees that Agent may record any such memorandum of leasehold
interest or collateral assignment of lease at Agent's and/or
Lenders' sole cost and expense at any time when no Default or
Event of Default exists, without notice to or consent of
Borrower.
(ii) Promptly, and in any event within thirty (30) days of any
of Borrower, LT Kids, FCA Restaurant Holdings, FCA Construction
Holdings or by RE Holdings becoming the owner or tenant of any real
Property (other than as to the Excluded Real Property), Borrower shall
deliver to Agent:
(A) a copy of a memorandum of leasehold interest in
respect of any leasehold of Borrower as a lessee with respect
to such real Property, in form and substance satisfactory to
Agent, which has been executed and recorded of record in the
applicable jurisdiction;
(B) except to the extent prohibited by the applicable
lease, an original collateral assignment of Borrower's
leasehold interests for each parcel of real Property Borrower
leases from any Person (including RE Holdings), in favor of
the Agent for the benefit of the Agent and the Lenders and in
form and substance satisfactory to Agent, which have been
executed by Borrower;
(C) except to the extent prohibited by the U.S. Bank
Facilities, an original mortgage in favor of the Agent for the
benefit of the Agent and the Lenders for each parcel of real
Property owned by any of Borrower, LT Kids, FCA Restaurant
Holdings, FCA Construction Holdings or RE Holdings, in form
and substance satisfactory to Agent, which has been executed
by Borrower or the applicable Subsidiary of Borrower;
(D) for each mortgage referred to in clause
(c)(ii)(C) above, if and when the same has been recorded in
the applicable recording office pursuant to clause (c)(ii)(E)
below, an original ALTA mortgagee policy of title insurance or
a binder issued by a title insurance company reasonably
satisfactory to the Agent insuring
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(or undertaking to insure, in the case of a binder) that such
mortgage creates and constitutes a valid first Lien against
the fee title to such real Property in favor of the Agent, for
the benefit of Agent and the Lenders, subject only to
exceptions reasonably acceptable to the Agent, with such
endorsements and affirmative insurance as the Agent may
reasonably request; and
(E) evidence satisfactory to the Agent that such
memorandum of lease, collateral assignment of lease or
mortgage has been recorded of record in the applicable
jurisdiction(s) and all recording fees, mortgage taxes,
documentary stamp or intangible taxes, title insurance charges
and other similar items payable in connection with the matters
referred to in clauses (c)(ii)(A) through (c)(ii)(D) above
have been paid; provided, however, that so long as no Default
or Event of Default exists, such recording and payment of fees
and taxes shall not be required in respect of any memorandum
of lease or collateral assignment of lease executed and
delivered to Agent if the cost of such recording exceeds
$5,000. Borrower agrees, however, that at any time when a
Default or Event of Default exists Agent may record any such
memorandum of lease or collateral assignment of lease at
Borrower's sole cost and expense, without notice to or consent
of Borrower, and Borrower further agrees that Agent may record
any such memorandum of lease or collateral assignment of lease
at Agent's and/or Lenders' sole cost and expense at any time
when no Default or Event of Default exists, without notice to
or consent of Borrower.
(iii) Upon the request of Agent, with respect to each parcel
of real Property in respect of which there is delivered a mortgage
which has been recorded pursuant to clause (c)(i)(E) or (c)(ii)(E)
preceding, Borrower, at Borrower's sole cost and expense, shall obtain
and deliver or provide to the Agent (A) flood insurance and earthquake
insurance on terms satisfactory to the Agent, (B) a current ALTA survey
and surveyor's certification as to such real Property, each in form and
substance reasonably satisfactory to the Agent, and (C) such consents,
estoppels, subordination agreements and other documents and instruments
executed by other Persons party to material contracts relating to such
real Property as may be reasonably requested by the Agent.
(iv) To the extent that Borrower or RE Holdings or any other
Subsidiary obtains, pays for or provides to any third party any of the
following with respect to any parcel of real Property owned or leased
or to be owned or leased by Borrower or any of its Subsidiaries
(including, without limitation, U.S. Bank), copies of such items shall
also be provided to the Agent, whether or not required pursuant to any
other provision of this Section 4.17(c): surveys, environmental
reports, title reports, engineering reports and other reports or
information relating to the condition, location, suitability or title
of such parcel.
4.18 Acquisitions and Ownership of Real Property. The Borrower shall
take all actions necessary to assure that the Borrower holds in its name fee
title to all parcels of real Property in which the Borrower or any Subsidiary
has any fee title interest (other than real Property relating to the Plymouth
and Bloomington, Minnesota, Clubs, the real Property located in Canton,
Michigan, Skokie, Illinois, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ which
is owned by RE
32
Holdings, and the real Property located in Rochester Hills, Michigan, which RE
Holdings expects to acquire on or about July 20, 2001), unless the same is
subject to a mortgage (a) in favor of the U.S. Bank Lenders securing the U.S.
Bank Facilities if such real Property is owned by RE Holdings, or (b) in favor
of TIAA securing the TIAA Facilities if such real Property is owned by a TIAA
Subsidiary.
4.19 Additional Equity. The Borrower shall (i) not later than seven (7)
days after the Effective Date issue shares of its capital stock for gross
proceeds of $15,000,000; and (ii) not later than sixty (60) Business Days after
the Effective Date issue shares of its capital stock for additional gross
proceeds of not less than $1,000,000.
ARTICLE V - NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Lender shall
have any Commitment hereunder, or any Loan or other Obligation (other than
contingent indemnification Obligations to the extent no claim giving rise
thereto has been asserted) shall remain unpaid or unsatisfied, unless the
Required Lenders waive compliance in writing:
5.1 Limitation on Liens. The Borrower shall not, and shall not suffer
or permit any of its Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
its Property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on the Property of the Borrower or its
Subsidiaries on the Effective Date and set forth in Schedule 5.1 securing
Indebtedness outstanding on such date and permitted by subsection 5.5(c), 5.5(g)
or 5.5(i), including replacement Liens on the Property currently subject to such
Liens;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
(i) which are not delinquent or remain payable without penalty, or (ii) the
non-payment thereof is permitted by Section 4.7, provided that, in respect of
this clause (ii), all such Liens secure claims in the aggregate at any time
outstanding for Borrower and its Subsidiaries not exceeding $250,000;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the Ordinary Course of Business
which are not delinquent for more than ninety (90) days or remain payable
without penalty or which are being contested in good faith and by appropriate
proceedings diligently prosecuted, which proceedings have the effect of
preventing the forfeiture or sale of the Property subject thereto and for which
adequate reserves in accordance with GAAP are being maintained;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the Ordinary Course of Business in connection with
workers' compensation, unemployment insurance and other social security
legislation or to secure the performance of tenders, statutory obligations,
surety, stay, customs and appeals bonds, bids, leases, governmental contract,
trade contracts, performance and return of money bonds and other similar
obligations
33
(exclusive of obligations for the payment of borrowed money) or to secure
liability to insurance carriers;
(f) Liens consisting of judgment or judicial attachment liens, provided
that the enforcement of such Liens is effectively stayed and all such Liens
secure claims in the aggregate at any time outstanding for the Borrower and its
Subsidiaries do not exceed $250,000;
(g) easements, rights-of-way, zoning and other restrictions, minor
defects or other irregularities in title, and other similar encumbrances
incurred in the Ordinary Course of Business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the Property subject thereto or interfere in any material respect with
the ordinary conduct of the businesses of the Borrower and its Subsidiaries;
(h) Liens on any Property acquired or held by the Borrower or its
Subsidiaries in the Ordinary Course of Business, securing Indebtedness incurred
or assumed for the purpose of financing (or refinancing) all or any part of the
cost of acquiring such Property and permitted under subsection 5.5(d); provided
that (i) any such Lien attaches to such Property substantially concurrently with
or within twenty (20) days after the acquisition thereof, (ii) such Lien
attaches solely to the Property so acquired in such transaction, and (iii) the
principal amount of the debt secured thereby does not exceed 100% of the cost of
such Property;
(i) Liens securing Capital Lease Obligations permitted under subsection
5.5(d);
(j) any interest or title of a lessor or sublessor under any lease
permitted by this Agreement;
(k) Liens arising from precautionary UCC financing statements filed
under any lease permitted by this Agreement;
(l) set-off rights in favor of depository institutions maintaining the
Permitted Accounts;
(m) Liens against Property of RE Holdings securing Indebtedness
permitted by Section 5.5(g) or Section 5.5(i), provided that such Liens attach
substantially concurrently with the initial borrowing in respect of such
Property under the U.S. Bank Facilities (or another permitted lender as provided
in Section 5.5(i)); and
(n) Liens against Property of a TIAA Subsidiary securing Indebtedness
permitted by Section 5.5(h) provided that such Liens attach concurrently with
the initial borrowing in respect of such Property under the TIAA Facilities.
5.2 Disposition of Assets. The Borrower shall not, and shall not suffer
or permit any of its Subsidiaries to, directly or indirectly, sell, assign,
lease, convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any Property (including accounts and notes receivable, with or
without recourse) or enter into any agreement to do any of the foregoing, except
for payments of Indebtedness which Indebtedness is otherwise permitted hereby,
as and when such payments are due, and except for transfers and distributions by
Subsidiaries to the Borrower and except for:
34
(a) dispositions of inventory, or used, worn-out or surplus equipment;
all in the Ordinary Course of Business;
(b) dispositions not otherwise permitted hereunder which are made for
fair market value; provided that (i) at the time of any disposition, no Event of
Default shall exist or shall result from such disposition, (ii) the aggregate
sales price from such disposition shall be paid in cash, and (iii) the aggregate
value of all assets so sold by the Borrower and its Subsidiaries, together,
shall not exceed in any fiscal year $250,000 and; (iv) after giving effect to
such disposition, Borrower is in compliance on a pro forma basis with the
covenants set forth in Article 6, recomputed for the most recent month for which
financial statements have been delivered;
(c) any sale-leaseback of a Club by Borrower or a Subsidiary of
Borrower provided that (i) at the time of any disposition, no Event of Default
shall exist or shall result from such sale-leaseback, (ii) such sale shall be
for fair value and the sales price from such sale-leaseback shall be paid in
cash, (iii) the net proceeds of such sale shall exceed any Indebtedness which is
secured by such Club and shall be applied first to repay such Indebtedness and
the excess net proceeds shall be distributed to the Borrower (and any required
consents of third Persons to such distribution shall have previously been
obtained), (iv) the Borrower shall be the primary tenant under such leaseback
arrangement, and (v) after giving effect to such disposition, Borrower is in
compliance on a pro forma basis with the covenants set forth in Article VI,
recomputed for the most recent month for which financial statements have been
delivered;
(d) [intentionally omitted];
(e) the existing sublease by Borrower to FCA Restaurant Holdings of the
restaurant space located in the Minneapolis Athletic Club at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and any extensions thereof;
(f) subleases of space in Clubs to specialty vendors of food, clothing,
sports equipment, etc., which subleases, individually or in the aggregate, do
not and could not reasonably be expected to cause or give rise to a Material
Adverse Effect;
(g) [intentionally omitted];
(h) provided that no Default or Event of Default then exists or would
be caused thereby, transfers of real Property owned by the Borrower to RE
Holdings made in connection with RE Holdings' financing the improvement of such
real Property under the U.S. Bank Facilities in connection with the initial
borrowing under the U.S. Bank Facilities in respect of such real Property and
the substantially concurrent granting of a mortgage in respect thereof to U.S.
Bank to secure the U.S. Bank Facilities; and
(i) provided that no Default or Event of Default then exists or would
be caused thereby, transfers of real Property owned by the Borrower or RE
Holdings to a TIAA Subsidiary made in connection with any such TIAA Subsidiary's
financing such real Property under the TIAA Facilities and in connection with
the initial borrowing under the TIAA Facilities in respect of such real Property
and the concurrent granting a mortgage in respect thereof to TIAA to secure the
TIAA Facilities; provided further that, with respect to any such transfer made
by RE Holdings, (A) the net proceeds of the financing provided by TIAA shall
exceed the portion of the
35
U.S. Bank Facilities which relates to such real Property and shall be applied
first to repay that portion of the U.S. Bank Facilities which relates to such
real Property and the excess net proceeds shall be distributed to the Borrower
and used by the Borrower to prepay the Loans (and the U.S. Bank Facility Lenders
shall have previously consent to such distribution), and (B) the Rent Reserve
shall be concurrently increased by an amount equal to five (5) months' of the
required payments of principal and interest and impositions under the TIAA
Facilities related to such real Property.
5.3 Consolidations and Mergers. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except as permitted
by Section 5.2 and except:
(a) upon not less than five (5) Business Days prior written notice to
Agent, any Subsidiary of the Borrower which is not a TIAA Subsidiary or RE
Holdings may merge with, or dissolve or liquidate into, the Borrower or a
Wholly-Owned Subsidiary of Borrower which is not a TIAA Subsidiary or RE
Holdings, provided that the Borrower or such Wholly-Owned Subsidiary shall be
the continuing or surviving corporation;
(b) RE Holdings, as lessor, shall lease all its real Property to the
Borrower, as lessee, pursuant to RE Holdings Leases; and
(c) the TIAA Subsidiaries, as lessors, shall lease all their real
Property to the Borrower, as lessee, pursuant to the TIAA Subsidiary Leases.
5.4 Loans and Investments. The Borrower shall not and shall not suffer
or permit any of its Subsidiaries to (i) purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, including the establishment
or creation of a Subsidiary, or (ii) make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person including any Affiliate of the Borrower (the items described in clauses
(i) and (ii) are referred to as "Investments"), except for Investments made by
any Subsidiary in or to the Borrower and except for:
(a) Investments in cash and Cash Equivalents;
(b) Investments by the Borrower to LT Kids in existence on the
Effective Date, provided that the obligations and equity interests of LT Kids
are pledged to the Agent, for the benefit of Agent and Lenders, and any notes
evidencing such obligations have such terms as the Agent may reasonably require
and all certificates and instruments evidencing any of such obligations or
equity interests have been delivered to the Agent;
(c) loans and advances to employees in the ordinary course of business
not to exceed $250,000 in the aggregate at any time outstanding;
(d) Investments by the Borrower to RE Holdings, provided that (i) with
respect to any such Investment RE Holdings uses or employs the proceeds thereof
in connection with the
36
purchase or improvement of real Property or fixtures, or for services
directly related thereto, within five (5) Business Days following the date of
such Investment, and (ii) the obligations and equity interests of RE Holdings
are pledged to the Agent, for the benefit of Agent and Lenders, and any notes
evidencing such obligations have such terms as the Agent may reasonably require
and all certificates and instruments evidencing any of such obligations or
equity interests have been delivered to the Agent;
(e) Investments by the Borrower to FCA Restaurant Holdings, which
Investments FCA Restaurant Holdings shall use solely to finance its acquisition
of equipment, furniture, fixtures and leasehold improvements used in the
restaurant located in the Minneapolis Athletic Club at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and provided that the obligations and equity interests
of FCA Restaurant Holdings are pledged to the Agent, for the benefit of Agent
and Lenders, and any notes evidencing such obligations have such terms as the
Agent may reasonably require and all certificates and instruments evidencing any
of such obligations or equity interests have been delivered to the Agent;
(f) Investments by the Borrower to DuPage LLC not exceeding in the
aggregate $3,500,000 (exclusive of obligations under the Bloomingdale Guaranty)
made by Borrower, which Investments DuPage LLC has used and shall use solely in
connection with the purchase or improvement of real Property or fixtures, or for
services directly related thereto, for the purpose of constructing, equipping
and operating a health and fitness center located on Army Trail Road,
Bloomingdale, in DuPage County, Illinois, and provided that the obligations of
DuPage LLC to the Borrower are pledged to the Agent, for the benefit of Agent
and Lenders, and any notes evidencing such obligations have such terms as the
Agent may reasonably require and all instruments evidencing any of such
obligations have been delivered to the Agent; and
(g) Investments by the Borrower to FCA Construction Holdings which
Investments FCA Construction Holdings has used and shall use solely in
connection with business activities permitted under Section 5.22, and provided
that the obligations and equity interests of FCA Construction Holdings are
pledged to the Agent, for the benefit of Agent and Lenders, and any notes
evidencing such obligations have such terms as the Agent may reasonably require
and all certificates and instruments evidencing any of such obligations or
equity interests have been delivered to the Agent.
5.5 Limitation on Indebtedness. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 5.9, including the Bloomingdale Guaranty as in effect on the
date of this Agreement;;
(c) Indebtedness existing on the Effective Date and set forth in
Schedule 5.5 including extensions and refinancings thereof which do not increase
the principal amount of such Indebtedness as of the date of such extension or
refinancing;
37
(d) Indebtedness of the Borrower consisting of Capital Lease
Obligations or secured by Liens permitted by subsection 5.1(h); provided,
however, that such Indebtedness consisting of Capital Lease Obligations plus
Indebtedness secured by Liens permitted by subsection 5.1(h), when aggregated
with all other Senior Debt then outstanding, does not cause the Senior Leverage
Ratio to exceed 2.75 to 1.0;
(e) unsecured intercompany Indebtedness permitted pursuant to Section
5.4;
(f) other unsecured Indebtedness not exceeding in the aggregate at any
time outstanding $100,000;
(g) the U.S. Bank Facilities, provided that (i) RE Holdings is the sole
obligor, (ii) the sole security for the U.S. Bank Facilities is Property owned
by RE Holdings, (iii) the outstanding principal amount of the U.S. Bank
Facilities does not at any time exceed $58,000,000, (iv) the Call Agreement and
the Mortgagee and Leasehold Mortgage Agreement are in full force and effect at
all times while any such Indebtedness is outstanding, (v) the requirements of
Section 6.7 hereof are at all times satisfied, and (vi) with respect to each
incurrence of any such Indebtedness after the Effective Date, no Default or
Event of Default shall then exist or would be caused thereby and Borrower shall
have delivered to Agent at least one (1) Business Day in advance thereof a
calculation of the financial covenants in Sections 6.3, 6.6 and 6.7 prepared on
a pro forma basis taking into account the proposed additional Indebtedness and
demonstrating that incurrence of such Indebtedness will be in compliance with
such Sections; and provided further that unless the U.S. Bank Financing
Agreements have been further amended in form and substance satisfactory to
Antares and BNPP (which each agree to use their best efforts to expeditiously
reach agreement with the U.S. Bank Facility Lenders as to such amendments), (x)
before October 1, 2001 the existing loans thereunder in respect of the Clubs in
Algonquin, Illinois, Bloomington, Minnesota and Columbus, Ohio shall be repaid
in full and such Property shall be released from any Liens under the U.S. Bank
Facilities and transferred either to the Borrower or to one or more TIAA
Subsidiaries (as permitted by Section 5.2(i)), and (y) no additional
Indebtedness shall be permitted under the U.S. Bank Facilities until such
amendment has been consummated, other than Indebtedness not to exceed
$11,000,000 in principal amount expected to be incurred prior to September 30,
2001 in connection with the Club in Orland Park, Illinois which is scheduled for
opening in August, 2001;
(h) the TIAA Facilities, provided that (i) the TIAA Subsidiaries are
the only obligors, (ii) the sole security for the TIAA Facilities is Property
owned by the TIAA Subsidiaries, and (iii) with respect to each incurrence of any
such Indebtedness after the Effective Date, no Default or Event of Default shall
then exist or would be caused thereby and Borrower shall have delivered to Agent
at least one (1) Business Day in advance thereof a calculation of the financial
covenants in Sections 6.3 and 6.6 prepared on a pro forma basis taking into
account the proposed additional Indebtedness and demonstrating that incurrence
of such Indebtedness will be in compliance with such Sections; and
(i) Indebtedness to Persons (other than TIAA) incurred with respect to
the Clubs in Algonquin, Illinois, Bloomington, Minnesota and Columbus, Ohio
pursuant to the second proviso in subsection 5.5(g) to refinance Indebtedness
under the U.S. Bank Facilities in respect
38
of such Property required to be repaid under such subsection and on terms and
conditions and pursuant to documentation which is acceptable to Antares and BNPP
in their sole discretion.
5.6 Transactions with Affiliates. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, enter into any transaction with any
Affiliate of the Borrower or of any such Subsidiary, except:
(a) as expressly permitted by this Agreement; or
(b) in the Ordinary Course of Business and pursuant to the reasonable
requirements of the business of the Borrower or such Subsidiary;
and, in the case of clause (b), upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Borrower or such
Subsidiary (other than Norwest and Patricof) and which are disclosed in writing
to Agent. Borrower hereby discloses that from time to time it rents/subleases
private aircraft for business purposes from Windsor Aviation, LLC, an Affiliate
of Borrower. Borrower believes that all such transactions have been and will be
on an arm's length basis. Nothing in this Section 5.6 shall modify the
requirements of Section 4.13 with respect to the RE Holdings Leases or the
requirements of Section 4.14 with respect to the TIAA Subsidiary Leases.
5.7 Management Fees and Compensation. The Borrower shall not, and shall
not permit any of its Subsidiaries to pay any management, consulting or similar
fees to any Affiliate of the Borrower or to any officer, director or employee of
the Borrower or any of its Subsidiaries or any Affiliate of the Borrower except:
(a) payment of reasonable compensation to officers and employees for
actual services rendered to Borrower and its Subsidiaries in the Ordinary Course
of Business; and
(b) payment of directors' fees and reimbursement of actual
out-of-pocket expenses incurred in connection with attending board of director
meetings not to exceed in the aggregate, with respect to all such items, $40,000
in any fiscal year of Borrower.
5.8 Use of Proceeds. The Borrower shall not and shall not suffer or
permit any of its Subsidiaries to use any portion of the Loan proceeds, directly
or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance
Indebtedness of the Borrower or others incurred to purchase or carry Margin
Stock, or otherwise in any manner which is in contravention of any Requirement
of Law or in violation of this Agreement.
5.9 Contingent Obligations. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Contingent Obligations except in respect of the Obligations and
except:
(a) endorsements for collection or deposit in the Ordinary Course of
Business;
(b) Contingent Obligations of the Borrower and its Subsidiaries
existing as of the Effective Date and listed in Schedule 5.9, including
extension and renewals thereof which do not increase the amount of such
Contingent Obligations as of the date of such extension or renewal;
39
(c) Contingent Obligations incurred in the Ordinary Course of Business
with respect to surety and appeal bonds, performance bonds and other similar
obligations;
(d) Contingent Obligations arising under indemnity agreements to title
insurers to cause such title insurers to issue to Agent title insurance
policies;
(e) Contingent Obligations arising with respect to customary
indemnification obligations in favor of purchasers in connection with
dispositions permitted under Section 5.2(b); and
(f) Contingent Obligations arising with respect to Hedging Obligations
under any Hedging Agreements entered into by Borrower with any Lender with
respect to the Term Loans.
5.10 Compliance with ERISA. The Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to:
(a) terminate any Plan subject to Title IV of ERISA so as to cause a
Material Adverse Effect;
(b) permit to exist any ERISA Event or any other event or condition,
which would reasonably be expected to have a Material Adverse Effect;
(c) make a complete or partial withdrawal (within the meaning of ERISA
Section 4201) from any Multiemployer Plan so as to result in a Material Adverse
Effect;
(d) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which would reasonably be expected to have a
Material Adverse Effect; or
(e) permit the present value of all nonforfeitable accrued benefits
under any Plan (using the actuarial assumptions utilized by the PBGC upon
termination of a Plan) materially to exceed the fair market value of Plan assets
allocable to such benefits, all determined as of the most recent valuation date
for each such Plan.
5.11 Restricted Payments. The Borrower shall not, and shall not suffer
or permit any of its Subsidiaries to:
(i) declare or make any dividend payment or other distribution
of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, partnership
interests, membership interests or other equity securities;
(ii) purchase, redeem or otherwise acquire for value any
shares of its capital stock, partnership interests, membership
interests or other equity securities or any warrants, rights or options
to acquire such shares, interests or securities now or hereafter
outstanding; or
(iii) make any payment or prepayment of principal of, premium,
if any, interest, redemption, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to,
Subordinated Indebtedness or any Indebtedness of any Subsidiary;
40
(the items described in clauses (i), (ii) and (iii) are referred to as
"Restricted Payments"); except that (a) any Subsidiary of the Borrower may (and
shall to the extent required by Section 4.15) declare and pay dividends or
distributions to the Borrower, (b) the Borrower may declare and make dividend
payments or other distributions payable solely in its common stock, (c) FCA
Restaurant Holdings may distribute to each of its members each fiscal year up to
forty-six percent of the aggregate state and U.S. federal taxable income
attributable to such members by reason of such members' respective ownership
interests in FCA Restaurant Holdings, (d) in connection with any transfer by RE
Holdings of real Property to a TIAA Subsidiary in connection with TIAA financing
such real Property under the TIAA Facilities as permitted by Section 5.2(i), RE
Holdings shall repay that portion of the U.S. Bank Facilities which relates to
such real Property, and (e) RE Holdings may prepay the portion of the
outstanding principal balance of the U.S. Bank Facilities of approximately
$1,600,000 relating to the Bloomington, Minnesota Club.
5.12 Change in Business. The Borrower shall not, and shall not permit
any of its Subsidiaries to, engage in any material line of business
substantially different from those lines of business carried on by it on the
date hereof.
5.13 Change in Structure. Except as expressly permitted under Section
5.3, the Borrower shall not and shall not permit any of its Subsidiaries to,
make any material changes in its equity capital structure (including in the
terms of its outstanding stock), or amend its certificate of incorporation or
by-laws or articles of organization or operating agreement (as applicable) in
any material respect or in any respect adverse to Agent or Lenders. Except as
permitted by Section 5.3, the Borrower shall not permit LT Kids, FCA Restaurant
Holdings, FCA Construction Holdings or RE Holdings or any TIAA Subsidiary to
cease to be Wholly-Owned Subsidiaries of Borrower. Borrower shall cause LT Kids
to be dissolved by not later than September 30, 2001.
5.14 Accounting Changes. The Borrower shall not, and shall not suffer
or permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Borrower or of any of its consolidated Subsidiaries (and, in
the event of any such change(s) in accounting treatment or reporting practices
required by GAAP, Borrower shall promptly (and in any event within five (5)
days) provide to Agent and the Lenders restated Compliance Certificates for each
of the most recently ended three (3) months reflecting such change(s) in
accounting policies or financial reporting practices on a pro forma basis, in
form satisfactory to Agent and Required Lenders, and shall thereafter provide to
Agent and the Lenders, concurrently with each Compliance Certificate pursuant to
Section 4.2(b), a set of the calculations called for therein reflecting such
change(s) in accounting policies or financial reporting practices, in form
satisfactory to Agent and Required Lenders).
5.15 Amendments to Related Agreements. The Borrower shall not (i)
amend, supplement, waive or otherwise modify any provision of, the Related
Agreements in a manner adverse to Agent or Lenders or which could reasonably be
expected to have a Material Adverse Effect, or (ii) take or fail to take any
action under the Related Agreements that could reasonably be expected to have a
Material Adverse Effect.
41
5.16 No Acquisitions. The Borrower shall not, and shall not permit any
of its Subsidiaries to, acquire by purchase or otherwise any of the outstanding
capital stock of, or all or substantially all of the business, Property or fixed
assets of any Person. The Borrower shall not permit any Subsidiary to acquire
any real Property, unless the same is subject to a mortgage (a) in favor of the
U.S. Bank Lenders securing the U.S. Bank Facilities if the RE Holdings acquires
such real Property, or (b) in favor of TIAA securing the TIAA Facilities if a
TIAA Subsidiary acquires such real Property.
5.17 No Changes of Name or Collateral Locations. The Borrower will not,
and will not permit any of its Subsidiaries to, change its name or the address
of its chief executive offices except upon thirty (30) days' prior written
notice by Borrower to the Agent. The Borrower shall not permit any equipment or
inventory in which Borrower or any of its Subsidiaries has rights to be located
other than at a Permitted Collateral Location, except for equipment and
inventory which is in transit in the Ordinary Course of Business, and except
upon 30 days prior written notice by Borrower to the Agent.
5.18 Bank Accounts. The Borrower shall not establish or maintain, or
permit any of its Subsidiaries to establish or maintain, any bank, brokerage,
deposit, money market or similar accounts other than the Permitted Accounts,
provided that Borrower shall have until August 31, 2001 to obtain Deposit
Account Agreements covering any such accounts in existence on the Effective Date
which are not then subject to Deposit Account Agreements.
5.19 Business of RE Holdings. The Borrower shall not permit RE Holdings
to engage in any business or activity other than the purchase and improvement of
real Property and the leasing of such Property to Borrower pursuant to an RE
Holdings Lease.
5.20 Business of FCA Restaurant Holdings. The Borrower shall not permit
FCA Restaurant Holdings to engage in any business or activity other than the
operating of a restaurant in the Minneapolis Athletic Club at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
5.21 Business of the TIAA Subsidiaries. The Borrower shall not permit
any TIAA Subsidiary to engage in any business or activity other than the leasing
of real Property to Borrower pursuant to TIAA Subsidiary Leases and acquiring
real Property from RE Holdings and financing such acquisitions under the TIAA
Facilities.
5.22 Business of FCA Construction Holdings. The Borrower shall not
permit FCA Construction Holdings to engage in any business or activity other
than acting as construction manager and/or general contractor for the
construction of Clubs.
ARTICLE VI - FINANCIAL COVENANTS
The Borrower covenants and agrees that, so long as any Lender shall
have any Commitment hereunder, or any Loan or other Obligation (other than
contingent indemnification Obligations to the extent no claim giving rise
thereto has been asserted) shall remain unpaid or unsatisfied, unless the
Required Lenders waive compliance in writing:
42
6.1 Capital Expenditures. The Borrower and its Subsidiaries shall not
make or commit to make Capital Expenditures during any twelve-month period which
are in excess of the aggregate of:
(a) $2.10 multiplied by the usable square footage of all open Clubs
operated by Borrower on the date of determination, plus
(b) any Capital Expenditures which are financed, provided, however,
that to the extent that Indebtedness incurred to finance such Capital
Expenditures constitutes Senior Debt, such Indebtedness, when aggregated with
all other Senior Debt then outstanding, does not cause the Senior Leverage Ratio
to exceed 2.75 to 1.0;
(such aggregate of (a) and (b) being herein referred to as the "Capital
Expenditure Limitation"); and provided, further, that, in the event Borrower and
its Subsidiaries do not expend the entire Capital Expenditure Limitation under
clause (a) above in any fiscal year, Borrower and its Subsidiaries may carry
forward to the immediately succeeding fiscal year twenty percent (20%) of the
unutilized portion. All Capital Expenditures in any fiscal year shall first be
applied to reduce the applicable Capital Expenditure Limitation for such fiscal
year and then to reduce the carry-forward from the previous fiscal year, if any.
Capital Expenditures shall be calculated in the manner set forth in Exhibit
4.2(b).
6.2 Senior Leverage Ratio. The Borrower shall not permit the Senior
Leverage Ratio ending at the end of any month to exceed 2.75 to 1.00. Senior
Leverage Ratio shall be calculated in the manner set forth in Exhibit 4.2(b).
6.3 Total Leverage Ratio. The Borrower shall not permit the Total
Leverage Ratio as of any month to exceed 4.50 to 1.00. Total Leverage Ratio
shall be calculated in the manner set forth in Exhibit 4.2(b).
6.4 Fixed Charge Coverage Ratio. The Borrower shall not permit its
Fixed Charge Coverage Ratio for the twelve month period ending at the end of any
month to be less than 1.15 to 1.00. Fixed Charge Coverage Ratio shall be
calculated in the manner set forth in Exhibit 4.2(b).
6.5 Interest Coverage Ratio. The Borrower shall not permit its Interest
Coverage Ratio for the twelve month period ending at the end of any month to be
less than 3.00 to 1.00. Interest Coverage Ratio shall be calculated in the
manner set forth in Exhibit 4.2(b).
6.6 Adjusted Total Leverage Ratio. The Borrower shall not permit the
Adjusted Total Leverage Ratio ending at the end of any month to exceed 4.00 to
1.00. Adjusted Total Leverage Ratio shall be calculated in the manner set forth
in Exhibit 4.2(b).
6.7 Loan to Value Ratio. The Borrower shall not permit the Loan to
Value Ratio at the end of any month to exceed 0.50 to 1.00. Loan to Value Ratio
shall be calculated in the manner set forth in Exhibit 4.2(b).
43
ARTICLE VII - EVENTS OF DEFAULT
7.1 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Borrower fails to pay, (i) when and as required to
be paid herein, any amount of principal of or interest on any Loan, including
after maturity of the Loans, whether by acceleration or otherwise, or (ii)
within five (5) days after the same shall become due, any fee or any other
amount payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the
Borrower or any of its Subsidiaries made or deemed made herein, in any Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Borrower, any of its Subsidiaries, or their respective
Responsible Officers, furnished at any time under this Agreement, or in or under
any Loan Document, shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) Specific Defaults. The Borrower (i) fails to make any payment under
any of the RE Holdings Leases or TIAA Subsidiary Leases when due, or (ii) fails
to perform or observe any term, covenant or agreement contained in Sections 4.3,
4.4, 4.6, 4.9, 4.10, 4.13, 4.14., 415, 4.16 and 4.18 or Article V or Article VI
hereof, or (iii) fails to perform or observe any covenant or agreement contained
in Sections 4.1, 4.2(b), 4.2(d) and such failure continues for seven (7) days or
more.
(d) Other Defaults. The Borrower or any of its Subsidiaries fails to
perform or observe any other term, covenant or agreement contained in this
Agreement or any Loan Document, and such default shall continue unremedied for a
period of thirty (30) days after the date upon which written notice thereof is
given to the Borrower by the Agent at the request of the Required Lenders; or
(e) Cross-Defaults. (i) RE Holdings fails to make any payment under the
U.S. Bank Facilities when due or fails to perform or observe any other condition
or covenant, or any other event shall occur or condition exist, under the U.S.
Bank Facilities, if the effect of such failure, event or condition is to cause
such Indebtedness to become due and payable or to permit the holder or holders
of such Indebtedness to cause such Indebtedness to be declared to be due and
payable prior to its stated maturity; or (ii) any TIAA Subsidiary fails to make
any payment under the TIAA Facilities when due or fails to perform or observe
any other condition or covenant, or any other event shall occur or condition
exist, under the TIAA Facilities, if the effect of such failure, event or
condition is to cause such Indebtedness to become due and payable or to permit
the holder or holders of such Indebtedness to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity; or (iii) the
Borrower or any of its Subsidiaries (A) fails to make any payment in respect of
any Indebtedness (other than the Obligations, the U.S. Bank Facilities and the
TIAA Facilities) or Contingent Obligation having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$250,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the document relating
thereto on the date of such failure, or (B) fails to perform or observe any
other
44
condition or covenant, or any other event shall occur or condition exist, under
any agreement or instrument relating to any such Indebtedness or Contingent
Obligation (other than the Obligations, the U.S. Bank Facilities and the TIAA
Facilities), if the effect of such failure, event or condition is to cause such
Indebtedness or Contingent Obligation to become due and payable or cash
collateral in respect thereof to be demanded, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) who have not irrevocably waived such failure, event or condition
within thirty (30) days following the occurrence thereof to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity,
or to be entitled to demand cash collateral in respect; or
(f) Insolvency; Voluntary Proceedings. The Borrower or any of its
Subsidiaries (i) ceases or fails to be Solvent, (ii) generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (iii)
voluntarily ceases to conduct its business in the ordinary course; (iv)
commences any Insolvency Proceeding with respect to itself; or (v) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Borrower or any Subsidiary of the Borrower, or
any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Borrower's or any of its
Subsidiaries' Properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after commencement, filing or levy; (ii) the Borrower or any of its Subsidiaries
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Borrower or any of its
Subsidiaries acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its Property or business;
(h) ERISA. (i) A member of the Controlled Group shall fail to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its Withdrawal Liability under a Multiemployer Plan;
(ii) a member of the Controlled Group shall fail to satisfy its contribution
requirements under Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) the occurrence of an ERISA
Event; (iv) a Plan that is intended to be qualified under Section 401(a) of the
Code shall lose its qualification; (v) any member of the Controlled Group
engages in or otherwise becomes liable for a non-exempt prohibited transaction;
(vi) a violation of section 404 or 405 of ERISA or the exclusive benefit rule
under section 401(a) of the Code; (vii) any member of the Controlled Group is
assessed a tax under section 4980B of the Code or incurs a liability under
Section 601 et seq of ERISA; and, the occurrence of any such event listed in
clauses (i) through (vii), or the occurrence of any combination of events listed
in clauses (i) through (vii) results in, or could reasonably be expected to
result in, a Material Adverse Effect or result in exposure to Borrower in an
amount in excess of $250,000.
45
(i) Monetary Judgments. One or more judgments, non-interlocutory
orders, decrees or arbitration awards shall be entered against the Borrower or
any of its Subsidiaries involving in the aggregate a liability (to the extent
not covered by independent third-party insurance) as to any single or related
series of transactions, incidents or conditions, of $250,000 or more, and the
same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of thirty (30) days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree
shall be rendered against the Borrower or any of its Subsidiaries which does or
would reasonably be expected to have a Material Adverse Effect, and there shall
be any period of ten (10) consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(k) Collateral. Any material provision of any Collateral Document shall
for any reason, other than due to an action by the Agent or the Lenders, cease
to be valid and binding on or enforceable against the Borrower or any Subsidiary
of the Borrower party thereto or the Borrower or any Subsidiary of the Borrower
shall so state in writing or bring an action to limit its obligations or
liabilities thereunder; or any Collateral Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid security interest in
the Collateral purported to be covered thereby or such security interest shall
for any reason (other than the failure of the Agent or the Lenders to take any
action within their control) cease to be a perfected and first priority security
interest subject only to Permitted Liens; or
(l) Ownership. Any Change of Control shall occur; or
(m) Environmental Problems. Environmental Claims shall have been
asserted against the Borrower or any Subsidiary of the Borrower, or liabilities
or other Contingent Obligations shall have been incurred by Borrower or by any
Subsidiary of the Borrower relating to Environmental Claims or Environmental
Laws, which could reasonably be expected to result in a Material Adverse Effect.
7.2 Remedies. Upon the occurrence and during the continuance of any
Event of Default, the Agent shall at the request of the Required Lenders:
(a) declare all or any portion of the Commitment of each Lender to make
Loans or issue Lender Letters of Credit or Letter of Credit Participation
Agreements to be terminated, whereupon such Commitments shall forthwith be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable;
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in
subsections 7.1(f) and (g) above (in the case of clause (i) of paragraph (g)
upon the expiration of the 60-day period
46
mentioned therein), the obligation of each Lender to make Loans and the
obligation of Agent to issue Lender Letters of Credit and Letter of Credit
Participation Agreements shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the Agent or
any Lender. The Agent shall promptly notify Borrower of any remedy elected by
the Agent pursuant to this Section 7.2, provided that no failure or delay of the
Agent in providing notice to Borrower shall prejudice the rights of the Agent or
any Lender hereunder.
7.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
7.4 Cash Collateral for Letters of Credit. If an Event of Default has
occurred and is continuing or this Agreement shall be terminated for any reason,
then the Agent shall upon request of Lenders holding at least sixty six and
two-thirds percent (66-2/3%) of the Revolving Loan Commitments demand (which
demand shall be deemed to have been delivered automatically upon any
acceleration of the Loans and other obligations hereunder pursuant to Section
7.2 hereof), and Borrower shall thereupon deliver to the Agent, to be held for
the benefit of the Agent and the Lenders entitled thereto, an amount of cash
equal to the amount of Letter of Credit Participation Liability (determined in
accordance with subsection 1.1(c) hereof) as additional collateral security for
Borrower's Obligations in respect of any outstanding Lender Letter of Credit and
Letter of Credit Participation Agreement. The Agent may at any time apply any or
all of such cash and cash collateral to the payment of any or all of Borrower's
Obligations in respect of any Lender Letters of Credit or Letter of Credit
Participation Agreements. Pending such application, the Agent may (but shall not
be obligated to) invest the same in an interest bearing account in the Agent's
name, for the benefit of the Agent and the Lenders entitled thereto, under which
deposits are available for immediate withdrawal, at such bank or financial
institution as the Agent may, in its discretion, select.
ARTICLE VIII - THE AGENT
8.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not
47
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
8.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document (except for their own
gross negligence or willful misconduct), or (ii) be responsible in any manner to
any of the Lenders for any recital, statement, representation or warranty made
by the Borrower or any Subsidiary or Affiliate of the Borrower, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or for the value of any Collateral or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the Properties, books or records of the Borrower or any of the
Borrower's Subsidiaries or Affiliates.
8.4 Reliance by Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile or telephone message,
statement or other document or conversation believed by it to be genuine and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Lenders (or, where an action or waiver need only be approved by the Required
Lenders, by the Required Lenders) as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Lenders
(or, where an action or waiver need only be approved by the Required Lenders, by
the Required Lenders) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
8.5 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Agent for the account of the Lenders, unless the Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
requested by the Required Lenders in accordance with Article VII.
8.6 Credit Decision. Each Lender expressly acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it and that
no act by the Agent hereinafter
48
taken, including any review of the affairs of the Borrower and its Subsidiaries
shall be deemed to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon the Agent and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated thereby, and made its
own decision to enter into this Agreement and extend credit to the Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon the Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of the
Agent.
8.7 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, upon demand therefor the Lenders shall indemnify
the Agent (to the extent not reimbursed by or on behalf of the Borrower and
without limiting the obligation of the Borrower to do so), ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Loans and the termination or resignation of the Agent) be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any document contemplated by or referred to herein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Agent under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment to the Agent of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. In addition, each Lender shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein
to the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Borrower. Without limiting the generality of the foregoing, if the
Internal Revenue Service or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including, any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section 8.7, together with all related
costs and expenses
49
(including Attorney Costs). The obligation of the Lenders in this Section 8.7
shall survive the payment of all Obligations hereunder.
8.8 Agent in Individual Capacity. Antares and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory or other business with the Borrower and its Subsidiaries and
Affiliates as though Antares were not the Agent hereunder and without notice to
or consent of the Lenders. With respect to its Loans, Antares shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Agent, and the terms "Lender" and "Lenders"
shall include Antares in its individual capacity.
8.9 Successor Agent. The Agent may resign as Agent upon thirty (30)
days' prior notice to the Lenders and to Borrower. If the Agent shall resign as
Agent under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders subject to the prior consent of
Borrower, which consent shall not be unreasonably withheld or delayed. If no
successor agent is appointed prior to the effective date of the resignation of
the Agent, the Agent may thereupon appoint a successor agent from among the
Lenders subject to the prior consent of Borrower, which consent shall not be
unreasonably withheld or delayed. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article VIII and Sections 9.4 and 9.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is thirty (30) days following a retiring Agent's notice of
resignation (or, if later, ten (10) days after the date upon which the Agent
designates a successor agent), the retiring Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.
8.10 Collateral Matters.
(a) The Agent is authorized (but not required) on behalf of all the
Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any Collateral or
the Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral granted
pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the Agent upon any
Collateral:
(i) upon termination of the Commitments and payment in full of
all Loans and all other Obligations then payable under this Agreement
and under any other Loan Document;
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(ii) constituting Property sold or to be sold or disposed of
as part of or in connection with any disposition permitted hereunder;
(iii) consisting of an instrument evidencing Indebtedness or
of any other debt instrument, if the indebtedness evidenced thereby has
been paid in full; or
(iv) if approved, authorized or ratified in writing by the
Required Lenders or all the Lenders, as the case may be, as provided in
subsection 9.1(f).
Upon request by the Agent at any time, the Lenders will confirm in writing the
Agent's authority to release particular types or items of Collateral pursuant to
this subsection 8.10(b).
(c) Each Lender agrees with and in favor of each other Lender (which
agreement shall not be for the benefit of the Borrower or any of its
Subsidiaries) that the Borrower's obligation to such Lender under this Agreement
and the other Loan Documents shall be equally and ratably secured by any real
property and/or other collateral now or hereafter securing any obligations of
the Borrower or any of its Subsidiaries to such Lender, whether or not the same
constitutes Collateral hereunder.
8.11 Documentation Agent. The Documentation Agent shall only have the
power to act as hereafter may be agreed to in writing between Agent and the
Documentation Agent, and, in such capacity, the Documentation Agent shall each
be entitled to all of the indemnifications, exculpations and other protections
afforded the Agent in this Agreement including, without limitation, those
contained in this ARTICLE VIII.
ARTICLE IX - MISCELLANEOUS
9.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders, the Borrower and acknowledged by
the Agent, and then such waiver shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by all the
Lenders, the Borrower and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to subsection 7.2(a)) or subject any Lender to
any additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder or
under any Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
or the amount of interest payable in cash specified herein on any Loan, or of
any fees or other amounts payable hereunder or under any Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which shall be required for the Lenders or any of
them to take any action hereunder;
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(e) amend this Section 9.1 or the definition of Required Lenders or any
provision providing for consent or other action by all Lenders; or
(f) discharge any Subsidiary from their respective Obligations under
the Loan Documents, or release all or substantially all of the Collateral except
as otherwise may be provided in this Agreement or the other Loan Documents;
and, provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Required Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document.
9.2 Notices. (a) All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission) and mailed by certified
or registered mail, faxed or delivered by personal or overnight delivery, to the
address or facsimile number specified for notices on the applicable signature
page hereof; or, if directed to the Borrower or the Agent, to such other address
as shall be designated by such party in a written notice to each of the other
parties hereto given in compliance herewith, or, if directed to any other party
hereto, to such other address as shall be designated by such party in a written
notice given in compliance herewith to the Borrower and the Agent.
(b) All such notices, requests and communications shall be effective
(i) if delivered in person, when delivered, (ii) if delivered by telecopy, on
the date of transmission if transmitted on a Business Day before 4:00 p.m.
Chicago Time, otherwise on the next Business Day, (iii) if delivered by
overnight courier, one (1) Business Day after delivery to the courier properly
addressed and (iv) if mailed, upon the third Business Day after the date
deposited into the U.S. Mail, certified or registered; except that notices
pursuant to Article I shall not be effective until actually received by the
Agent.
(c) The Borrower acknowledges and agrees that any agreement of the
Agent and the Lenders in Article I hereof to receive certain notices by
telephone and facsimile is solely for the convenience and at the request of the
Borrower. The Agent and the Lenders shall be entitled to rely on the authority
of any Person purporting to be a Person authorized by the Borrower to give such
notice and the Agent and the Lenders shall not have any liability to the
Borrower or other Person on account of any action taken or not taken by the
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans shall not be affected in any way
or to any extent by any failure by the Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Lenders of a confirmation which is at variance with the terms understood
by the Agent and the Lenders to be contained in the telephonic or facsimile
notice.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Lender, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
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9.4 Costs and Expenses. Whether or not the transactions contemplated
hereby shall be consummated, the Borrower shall pay or reimburse:
(a) Antares (including in its capacity as Agent) within five (5)
Business Days after demand (except as otherwise provided in subsection 2.1(f))
for all reasonable out-of-pocket costs and expenses incurred by Antares
(including in its capacity as Agent) in connection with the preparation,
delivery, post-default administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including the Attorney Costs incurred by
Antares (including in its capacity as Agent) with respect thereto;
(b) pay or reimburse each Lender and the Agent within five (5) Business
Days after demand for all reasonable out-of-pocket costs and expenses incurred
by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies during the existence of an Event of
Default (including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or appellate proceeding)
under this Agreement, any other Loan Document, and any such other documents,
including Attorney Costs, incurred by the Agent and/or any Lender; and
(c) pay or reimburse Agent within five (5) Business Days after demand
for all out-of-pocket appraisal, audit, environmental inspection and review
(including the allocated cost of such internal services), search and filing
costs, fees and expenses, incurred or sustained by Agent in connection with the
matters referred to under subsections (a) and (b) of this Section 9.4.
9.5 Indemnity. Whether or not the transactions contemplated hereby
shall be consummated, the Borrower shall indemnify, defend and hold harmless
each Lender, the Agent and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs):
(a) of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement and any
other Loan Documents, or the transactions contemplated hereby and thereby, and
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to this Agreement or the
Loans or the use of the proceeds thereof, whether or not any Indemnified Person
is a party thereto; and
(b) which may be incurred by or asserted against such Indemnified
Person in connection with or arising out of any pending or threatened
investigation, litigation or proceeding, or any action taken by any Person, with
respect to any Environmental Claim arising out of or related to any Property of
Borrower or any of its Subsidiaries;
(all the foregoing, collectively, the "Indemnified Liabilities"); provided, that
the Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities to the extent arising from the gross
negligence or willful misconduct of such Indemnified Person.
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No action taken by legal counsel chosen by the Agent or any Lender in
defending against any investigation, litigation or proceeding or requested
remedial, removal or response action shall vitiate or any way impair the
Borrower's obligation and duty hereunder to indemnify and hold harmless the
Agent and each Lender. In no event shall any site visit, observation, or testing
by the Agent or any Lender (or any contractee of the Agent or any Lender) be
deemed a representation or warranty that Hazardous Materials are or are not
present in, on, or under, the site, or that there has been or shall be
compliance with any Environmental Law. Neither the Borrower nor any other Person
is entitled to rely on any site visit, observation, or testing by the Agent or
any Lender. Neither the Agent nor any Lender owes any duty of care to protect
the Borrower or any other Person against, or to inform the Borrower or any other
party of, any Hazardous Materials or any other adverse condition affecting any
site or Property. Neither the Agent nor any Lender shall be obligated to
disclose to the Borrower or any other Person any report or findings made as a
result of, or in connection with, any site visit, observation, or testing by the
Agent or any Lender.
The obligations in this Section 9.5 shall survive payment of all other
Obligations. At the election of any Indemnified Person, the Borrower shall
defend such Indemnified Person using legal counsel satisfactory to such
Indemnified Person in such Person's sole discretion, at the sole cost and
expense of the Borrower. All amounts owing under this Section 9.5 shall be paid
within thirty (30) days after demand. The Indemnified Person shall promptly
notify Borrower of any event requiring indemnification under this Section,
provided that the failure of any Indemnified Person to provide prompt notice
shall not diminish any Indemnified Person's right to indemnification hereunder,
except to the extent of any actual injury suffered by Borrower on account of the
Indemnified Person's unreasonable delay in providing such notice.
9.6 Marshaling; Payments Set Aside. Neither the Agent nor any Lender
shall be under any obligation to marshal any assets in favor of the Borrower or
any other Person or against or in payment of any or all of the Obligations. To
the extent that the Borrower makes a payment or payments to the Agent or any
Lender, or the Agent or any Lender enforces its Liens or exercises its rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Agent in its discretion) to be repaid to a
trustee, receiver or any other party in connection with any Insolvency
Proceeding, or otherwise, then:
(a) to the extent of such recovery the Obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff
had not occurred; and
(b) each Lender severally agrees to pay to the Agent upon demand its
ratable share of the total amount so recovered from or repaid by the Agent.
9.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that any assignment by any Lender shall be
subject to the provisions of Section 9.8 hereof, and provided further that the
Borrower may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agent and each Lender.
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9.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of Borrower, which consent shall not be withheld or delayed in
bad faith and shall not be required if an Event of Default exists, and Agent, at
any time assign and delegate to one or more Eligible Assignees (provided that no
written consent of the Agent or Borrower shall be required in connection with
any assignment and delegation by a Lender to an Eligible Assignee that is an
Affiliate of such Lender) (each an "Assignee") all, or any ratable part of all,
of the Loans, the Commitments and the other rights and obligations of such
Lender hereunder, in a minimum amount of $2,000,000 or, if less, the entire
Commitment of such Lender; provided, however, that the Borrower and the Agent
may continue to deal solely and directly with such Lender in connection with the
interest so assigned to an Assignee until:
(i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Agent by such
Lender and the Assignee;
(ii) such Lender and its Assignee shall have delivered to the
Borrower and the Agent an Assignment and Acceptance in form and
substance reasonably satisfactory to Agent, such Lender and its
Assignee (an "Assignment and Acceptance"); and
(iii) the assignor Lender or the Assignee has paid to the
Agent a processing fee in the amount of $5,000.
(b) From and after the date that the Agent notifies the assignor Lender
that the Agent has received and provided its consent with respect to an executed
Assignment and Acceptance and payment of the above-referenced processing fee:
(i) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under this Agreement and the other Loan
Documents; and
(ii) the assignor Lender shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan
Documents.
(c) Immediately upon the making of the processing fee payment to the
Agent in respect of the Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee shall reduce such
Commitment of the assigning Lender to the same extent.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Borrower (a "Participant") participating
interests in any Loans, the Commitment of that Lender and the other interests of
that Lender (the "Originating Lender") hereunder and under the other Loan
Documents; provided, however, that:
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(i) the Originating Lender's obligations under this Agreement
shall remain unchanged;
(ii) the Originating Lender shall remain solely responsible
for the performance of such obligations;
(iii) the Borrower and the Agent shall continue to deal solely
and directly with the Originating Lender in connection with the
Originating Lender's rights and obligations under this Agreement and
the other Loan Documents;
(iv) no Lender shall transfer or grant any participating
interest under which the Participant shall have rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement
or any other Loan Document, except to the extent such amendment,
consent or waiver would require unanimous consent of the Lenders as
described in the first proviso to Section 9.1; and
(v) the participation shall be in a minimum amount of
$2,000,000 or, if less, the entire Commitment of such Originating
Lender.
In the case of any such participation, the Participant shall not have any rights
under this Agreement, or any of the other Loan Documents, and all amounts
payable by the Borrower hereunder shall be determined as if such Lender had not
sold such participation.
(e) Notwithstanding any other provision contained in this Agreement or
any other Loan Document to the contrary, any Lender may assign all or any
portion of the Loans held by it to any Federal Reserve Lender or the United
States Treasury as collateral security pursuant to Regulation A of the Federal
Reserve Board and any Operating Circular issued by such Federal Reserve Lender,
provided that any payment in respect of such assigned Loans made by the Borrower
to or for the account of the assigning or pledging Lender in accordance with the
terms of this Agreement shall satisfy the Borrower's obligations hereunder in
respect to such assigned Loans to the extent of such payment. No such assignment
shall release the assigning Lender from its obligations hereunder.
9.9 Confidentiality. Each of the Agent and the Lenders shall maintain
in confidence in accordance with its customary procedures for handling
confidential information, all written information that Borrower or any of its
Subsidiaries, or any of their authorized representatives, furnishes to the Agent
or any Lender on a confidential basis clearly marked as such ("Confidential
Information"), other than any such Confidential Information that becomes
generally available to the public other than as a result of a breach by the
Agent or any Lender of its obligations hereunder or that is or becomes available
to the Agent or such Lender from a source other than Borrower or any of its
Subsidiaries, or any of their authorized representatives, and that is not, to
the actual knowledge of the recipient thereof, subject to obligations of
confidentiality with respect thereto; provided, however, that the Agent and each
Lender shall in any event have the right to deliver copies of any such
documents, and to disclose any such information, to:
(a) its directors, officers, trustees, partners, employees, agents,
attorneys and professional consultants;
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(b) any other Lender and any successor Agent;
(c) any Person to which such Lender offers to sell any Loan or any part
thereof or interest or participation therein (provided such Person agrees to
keep such information confidential on the terms set forth in this Section 9.9);
(d) any Person from which such Lender offers to purchase any security
of the Borrower or any of its Subsidiaries;
(e) any federal or state regulatory authority or examiner, or any
insurance industry association, regulating or having jurisdiction over the Agent
or such Lender; and
(f) any other Person to which such delivery or disclosure may be
necessary or appropriate (i) in compliance with any applicable law, rule,
regulation or order, (ii) in response to any subpoena or other legal process or
informal investigative demand, (iii) in connection with any litigation to which
the Agent or such Lender is a party, or (iv) in connection with the enforcement
of the rights and remedies of the Agent or the Lenders under this Agreement and
the other Loan Documents at any time when an Event of Default shall have
occurred and be continuing.
9.10 Set-off, Sharing of Payments. In addition to any rights and
remedies now or hereafter granted under applicable law, and not by way of
limitation of any such rights or remedies, upon the occurrence and during the
continuance of any Event of Default, each Lender is hereby authorized by the
Borrower at any time and from time to time, with reasonably prompt subsequent
notice to the Borrower or to any other Person (any prior or contemporaneous
notice being hereby expressly waived by the Borrower) to set off and to
appropriate and to apply any and all
(a) balances held by such Lender at any of its offices for the account
of the Borrower or any of its Subsidiaries (regardless of whether such balances
are then due to the Borrower or any of its Subsidiaries); and
(b) other Property at any time held or owing by such Lender to or for
the credit or for the account of the Borrower or any of its Subsidiaries;
against and on account of any and all Obligations which are not paid when due.
Any Lender having a right to set off shall purchase for cash (and the other
Lenders shall sell) participations in each such other Lender's pro rata share of
the Obligations as would be necessary to cause such Lender to share the benefit
of such right of set-off with each other Lender in accordance with their
respective pro rata shares of the Obligations. The Borrower agrees, to the
fullest extent permitted by law, that (i) any Lender may exercise its right to
set off with respect to amounts in excess of its pro rata share of the
Obligations and may sell participations to other Lenders, and (ii) any Lender so
purchasing a participation in the Obligations held by other Lenders may exercise
all rights of setoff, bankers' lien, counterclaim or similar rights with respect
to such participation as fully as if such Lender were a direct holder of
Obligations in the amount of such participation. The Borrower hereby grants to
each Lender a security interest in all such deposits and other Property, whether
now existing or hereafter arising, held by each Lender for the purposes set
forth herein.
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9.11 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Agent in writing of any changes in the address to which notices to
the Lender should be directed, of addresses of its Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
9.12 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement in any number of separate counterparts, each of which,
when so executed, shall be deemed an original, and all of said counterparts
taken together shall be deemed to constitute but one and the same instrument. A
set of the copies of this Agreement signed by all the parties shall be lodged
with each of the Borrower and the Agent.
9.13 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
9.14 Captions. The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
9.15 Independence of Provisions. The parties acknowledge that this
Agreement and other Loan Documents may use several different limitations, tests
or measurements to regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must each be performed,
except as expressly stated to the contrary in this Agreement.
9.16 Interpretation. This Agreement is the result of negotiations among
and has been reviewed by counsel to the Agent, the Borrower and other parties,
and is the product of all parties hereto. Accordingly, this Agreement and the
other Loan Documents shall not be construed against the Lenders or the Agent
merely because of the Agent's or Lenders' involvement in the preparation of such
documents and agreements.
9.17 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrower, the Lenders and
the Agent, and their permitted successors and assigns, and no other Person shall
be a direct or indirect legal beneficiary of, or have any direct or indirect
cause of action or claim in connection with, this Agreement or any of the other
Loan Documents. Neither the Agent nor any Lender shall have any obligation to
any Person not a party to this Agreement or other Loan Documents.
9.18 Governing Law and Jurisdiction.
(A) THIS AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES; PROVIDED THAT THE AGENT
AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(B) BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING
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OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY BORROWER
AGAINST AGENT OR ANY LENDER OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
(C) BORROWER DESIGNATES AND APPOINTS CT CORPORATION SYSTEM AND
SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY BORROWER WHICH IRREVOCABLY
AGREE IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON ITS BEHALF SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY BORROWER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A
COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO
BORROWER AT ITS ADDRESS PROVIDED IN SUBSECTION 9.2 EXCEPT THAT UNLESS OTHERWISE
PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE
VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY BORROWER REFUSES TO
ACCEPT SERVICE, BORROWER HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL
CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
9.19 Waiver of Jury Trial. THE BORROWER, THE LENDERS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE AGENT EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
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9.20 Entire Agreement; Release. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
Borrower, the Lenders and the Agent, and supersedes all prior or contemporaneous
Agreements and understandings of such Persons, oral or written, relating to the
subject matter hereof and thereof, and any prior arrangements made with respect
to the payment by the Borrower of (or any indemnification for) any fees, costs
or expenses payable to or incurred (or to be incurred) by or on behalf of the
Agent or the Lenders. Execution of this Agreement by the Borrower constitutes a
full, complete and irrevocable release of any and all claims which the Borrower
may have at law or in equity in respect of all prior discussions and
understandings, oral or written, relating to the subject matter of this
Agreement and the other Loan Documents. Neither Agent nor any Lender shall be
liable to Borrower or any other Person on any theory of liability for any
special, indirect, consequential or punitive damages.
9.21 Subordination to Equipment Lender, in Respect of Certain
Equipment. The Agent agrees to subordinate its security interest in the
Collateral consisting of equipment of Borrower identified on Schedule 9.21
hereto and the proceeds thereof, which is financed by Carlton Financial
Corporation or other lenders, on terms which are mutually agreeable to the Agent
and such other lenders.
ARTICLE X - TAXES, YIELD PROTECTION AND ILLEGALITY
10.1 Taxes. (a) Subject to subsection 10.1(g), any and all payments by
the Borrower to each Lender or the Agent under this Agreement shall be made free
and clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, such taxes (including income taxes or franchise taxes) as are imposed on
or measured by each Lender's net income by the jurisdiction under the laws of
which such Lender or the Agent, as the case may be, is organized or maintains a
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 10.1(g), the Borrower shall indemnify and
hold harmless each Lender and the Agent for the full amount of Taxes or Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 10.1) paid by the Lender or the Agent and any
liability (including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within thirty (30) days from the date the Lender or the Agent makes written
demand therefor.
(d) If the Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, then, subject to subsection 10.1(g):
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(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 10.1) such Lender or the
Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made;
(ii) the Borrower shall make such deductions; and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within thirty (30) days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Agent.
(f) Each Lender which is a foreign person (i.e., a person other than a
United States person for United States Federal income tax purposes) agrees that:
(i) it shall, no later than the Effective Date (or, in the
case of a Lender which becomes a party hereto pursuant to Section 9.8
after the Effective Date, the date upon which the Lender becomes a
party hereto) deliver to the Borrower through the Agent two accurate
and complete signed originals of Internal Revenue Service Form 4224 or
any successor thereto ("Form 4224"), or two accurate and complete
signed originals of Internal Revenue Service Form 1001 or any successor
thereto ("Form 1001"), as appropriate, in each case indicating that the
Lender is on the date of delivery thereof entitled to receive payments
of principal, interest and fees under this Agreement free from
withholding of United States Federal income tax;
(ii) if at any time the Lender makes any changes necessitating
a new Form 4224 or Form 1001, it shall with reasonable promptness
deliver to the Borrower through the Agent in replacement for, or in
addition to, the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form 4224, or two accurate
and complete signed originals of Form 1001, as appropriate, in each
case indicating that the Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees under this
Agreement free from withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned
in (ii) above) requiring a change in or renewal of the most recent Form
4224 or Form 1001 previously delivered by such Lender and deliver to
the Borrower through the Agent two accurate and complete original
signed copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by the Lender; and
(iv) it shall, promptly upon the Borrower's or the Agent's
reasonable request to that effect, deliver to the Borrower or the Agent
(as the case may be) such other forms or similar documentation as may
be required from time to time by any applicable law, treaty, rule or
regulation in order to establish such Lender's tax status for
withholding purposes.
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(g) The Borrower will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to subsection 10.1(d) to
any Lender for the account of any Lending Office of such Lender:
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Lender to comply with its
obligations under subsection 10.1(f) in respect of such Lending Office;
or
(ii) if such Lender shall have delivered to the Borrower a
Form 1001 and/or Form 4224 in respect of such Lending Office pursuant
to subsection 10.1(f), and such Lender shall not at any time be
entitled to exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower hereunder for
the account of such Lending Office for any reason other than a change
in United States law, treaty or regulations or in the official
interpretation of such law or regulations by any governmental authority
charged with the interpretation or administration thereof (whether or
not having the force of law) after the date of delivery of such Form
1001 and/or Form 4224.
(h) If, at any time, the Borrower requests any Lender to deliver any
forms or other documentation pursuant to subsection 10.1(f)(iv), then the
Borrower shall, on demand of such Lender through the Agent, reimburse such
Lender for any costs and expenses (including Attorney Costs) reasonably incurred
by such Lender in the preparation or delivery of such forms or other
documentation.
(i) If the Borrower is required to pay additional amounts to any Lender
or the Agent pursuant to subsection 10.1(d), then such Lender shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Borrower which may thereafter accrue if such change in
the judgment of such Lender is not otherwise disadvantageous to such Lender.
10.2 Illegality. (a) If after the date hereof any Lender shall
determine that the introduction of any Requirement of Law, or any change in any
Requirement of Law or in the interpretation or administration thereof, has made
it unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its Lending Office to make LIBOR
Loans, then, on notice thereof by the Lender to the Borrower through the Agent,
the obligation of that Lender to make LIBOR Rate Loans shall be suspended until
the Lender shall have notified the Agent and the Borrower that the circumstances
giving rise to such determination no longer exists.
(b) Subject to clause (c) below, if a Lender shall determine that it is
unlawful to maintain any LIBOR Rate Loan, the Borrower shall prepay in full all
LIBOR Rate Loans of that Lender then outstanding, together with interest accrued
thereon, either on the last day of the Interest Period thereof if the Lender may
lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately,
if the Lender may not lawfully continue to maintain such LIBOR Rate Loans.
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(c) If the obligation of any Lender to make or maintain LIBOR Rate
Loans has been terminated, the Borrower may elect, by giving notice to the
Lender through the Agent that all Loans which would otherwise be made by any
such Lender as LIBOR Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent pursuant to this Section
10.2, the affected Lender shall designate a different Lending Office with
respect to its LIBOR Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Lender, be illegal or otherwise disadvantageous to the Lender.
10.3 Increased Costs and Reduction of Return. (a) If any Lender shall
determine that, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation of general application to lenders of the
same classification as the Lender, or (ii) the compliance with any guideline or
request from any central bank or other Governmental Authority of general
application to lenders of the same classification as the Lender (whether or not
having the force of law) made, in the case of clause (i) or (ii) subsequent to
the date hereof, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining any LIBOR Rate Loans, then
the Borrower shall be liable for, and shall from time to time, within 30 days of
demand therefor by such Lender (with a copy of such demand to the Agent), pay to
the Agent for the account of such Lender, additional amounts as are sufficient
to compensate such Lender for such increased costs, provided that Borrower shall
not be obligated to pay any such amount or amounts which are attributable to any
period of time occurring more than 45 days prior to the date of receipt by
Borrower of the written notice from such Lender described in Section 10.7.
(b) If any Lender shall have determined that:
(i) the introduction of any Capital Adequacy Regulation;
(ii) any change in any Capital Adequacy Regulation;
(iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or
administration thereof; or
(iv) compliance by the Lender (or its Lending Office) or any
corporation controlling the Lender, with any Capital Adequacy
Regulation;
affects the amount of capital required or expected to be maintained by the
Lender or any corporation controlling the Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines that the amount of such
capital is increased as a consequence of its Commitment(s), loans, credits or
obligations under this Agreement, then, within 30 days of demand of such Lender
(with a copy to the Agent), the Borrower shall upon demand pay to the Lender,
from time to time as specified by the Lender, additional amounts sufficient to
compensate the Lender for such increase, provided that Borrower shall not be
obligated to pay any such amount or amounts which are attributable to any period
of time occurring more than 45
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days prior to the date of receipt by Borrower of the written notice from such
Lender described in Section 10.7.
10.4 Funding Losses. The Borrower agrees to reimburse each Lender and
to hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
(a) the failure of the Borrower to make any payment or mandatory
prepayment of principal of any LIBOR Rate Loan (including payments made after
any acceleration thereof);
(b) the failure of the Borrower to borrow, continue or convert a Loan
after the Borrower has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/ Continuation;
(c) the failure of the Borrower to make any prepayment after the
Borrower has given a notice in accordance with Section 1.7;
(d) the prepayment (including pursuant to Section 1.8) of a LIBOR Rate
Loan on a day which is not the last day of the Interest Period with respect
thereto, other than pursuant to subsection 10.2; or
(e) the conversion pursuant to Section 1.6 of any LIBOR Rate Loan to a
Base Rate Loan on a day that is not the last day of the applicable Interest
Period, other than pursuant to subsection 10.2;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Rate Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. Solely
for purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 10.4 and under Section 10.3(a): each LIBOR Rate Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the LIBOR used in determining the
interest rate for such LIBOR Rate Loan by a matching deposit or other borrowing
in the interbank Eurodollar market for a comparable amount and for a comparable
period, whether or not such LIBOR Rate Loan is in fact so funded.
10.5 Inability to Determine Rates. If the Agent shall have determined
in good faith that for any reason adequate and reasonable means do not exist for
ascertaining the LIBOR for any requested Interest Period with respect to a
proposed LIBOR Rate Loan or that the LIBOR applicable pursuant to subsection
1.3(a) for any requested Interest Period with respect to a proposed LIBOR Rate
Loan does not adequately and fairly reflect the cost to the Lenders of funding
such Loan, the Agent will forthwith give notice of such determination to the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or
maintain LIBOR Rate Loans hereunder shall be suspended until the Agent revokes
such notice in writing. Upon receipt of such notice, the Borrower may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Borrower does not revoke such notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Borrower, in the amount specified in the
applicable notice submitted by the Borrower, but such Loans shall be made,
converted or continued as Base Rate Loans.
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10.6 Reserves on LIBOR Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required under regulations of the
Federal Reserve Board to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional costs on the unpaid principal amount of
each LIBOR Rate Loan equal to actual costs of such reserves allocated to such
Loan by the Lender (as determined by the Lender in good faith, which
determination shall be conclusive absent demonstrative error), payable on each
date on which interest is payable on such Loan provided the Borrower shall have
received at least fifteen (15) days' prior written notice (with a copy to the
Agent) of such additional interest from the Lender. If a Lender fails to give
notice fifteen (15) days prior to the relevant Interest Payment Date, such
additional interest shall be payable fifteen (15) days from receipt of such
notice.
10.7 Certificates of Lenders. Any Lender claiming reimbursement or
compensation pursuant to this Article X shall deliver to the Borrower (with a
copy to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Lender hereunder and such certificate shall be conclusive and
binding on the Borrower in the absence of manifest error.
10.8 Survival. The agreements and obligations of the Borrower in this
Article X shall survive the payment of all other Obligations.
10.9 Replacement of Lender in Respect of Increased Costs. Within
forty-five (45) days after receipt by the Borrower of written notice and demand
from any Lender (an "Affected Lender") for payment of additional costs as
provided in subsections 10.1, 10.3 and 10.6, the Borrower may, at its option,
notify the Agent and such Affected Lender of the Borrower's intention to obtain,
at the Borrower's expense, a replacement Lender ("Replacement Lender") for such
Affected Lender, which Replacement Lender shall be reasonably satisfactory to
the Agent. In the event the Borrower obtains a Replacement Lender within ninety
(90) days following notice of its intention to do so, the Affected Lender shall
sell and assign its Loans and Commitments to such Replacement Lender, provided
that the Borrower has reimbursed such Affected Lender for its increased costs
for which it is entitled to reimbursement under this Agreement through the date
of such sale and assignment.
ARTICLE XI - DEFINITIONS
11.1 Defined Terms. The following terms are defined in the Sections or
subsections referenced opposite such terms:
"Additional TIAA Property" 4.16
"Affected Lender" 10.9
"Allocation Increase/Decrease Request" 1.7(b)
"Allocation Request" 1.7(a)
"Antares" Preamble
"Assignee" 9.8(a)
"Assignment and Acceptance" 9.8(a)(ii)
"Borrower" Preamble
"Chase" Preamble
"Collateral Locations" 3.21
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"Commitment Fee" 1.9(b)
"Confidential Information" 9.9
"Event of Default" 7.1
"Existing Credit Agreement" Second WHEREAS
"Form 1001" 10.1(f)
"Form 4224" 10.1(f)
"Indemnified Person" 9.5
"Indemnified Liabilities" 9.5
"Investments" 5.4
"Lender" Preamble
"Lender Letter of Credit" 1.1(c)
"Letter of Credit Participation Agreement" 1.1(c)
"Letter of Credit Participation Fee" 1.9(b)
"Letter of Credit Participation Fee Ratio" 1.12(d)
"Material Contracts" 3.23
"Maximum Revolving Loan Balance" 1.1(a)
"Originating Lender" 9.8
"Other Taxes" 10.1(b)
"Participant" 9.8(d)
"Permitted Liens" 5.1
"Plymouth Facility" 4.17(b)
"Restricted Payments" 5.11
"Replacement Lender" 10.9
"Revolving Loan Commitment" 1.1 (a)
"Revolving Loan" 1.1 (a)
"Taxes" 10.1(a)
"TIAA Subsidiary Lease" 4.14
"TIAA Subsidiary Upstream Distribution Agreement" 4.15(d)
"Total Leverage Ratio" Exhibit 4.2(b)
"U.S. Bank Facility Lenders" Definition of U.S. Bank Facilities
In addition to the terms defined elsewhere in this Agreement, the following
terms have the following meanings:
"Adjusted Consolidated EBIDAT" means, for any period, Consolidated
EBIDAT less any amount thereof attributable to Clubs and Projects owned by RE
Holdings.
"Adjusted Total Debt" means, as of any determination date, Total Debt
minus Indebtedness of RE Holdings under the U.S. Bank Facilities as of such
date.
"Adjusted Total Leverage Ratio" means, as of any date of determination,
the ratio of Adjusted Total Debt as of such date to Adjusted Consolidated EBIDAT
for the twelve months most recently ended.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the
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power to direct or cause the direction of the management and policies of the
other Person, whether through the ownership of voting securities, by contract or
otherwise. Without limitation, any director, executive officer or beneficial
owner of five percent (5%) or more of the equity of a Person shall for the
purposes of this Agreement, be deemed to control the other Person.
Notwithstanding the foregoing, neither the Agent nor any Lender shall be deemed
an "Affiliate" of the Borrower or of any Subsidiary of the Borrower.
"Agent" means Antares in its capacity as agent for the Lenders
hereunder, and any successor entity acting as agent for the Lenders hereunder.
"Agent-Related Persons" means Antares and any successor agent arising
under Section 8.9, together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Revolving Loan Commitment" means the combined Revolving Loan
Commitments of the Lenders, which shall be in the amount of $25,000,000, as such
amount may be reduced from time to time pursuant to this Agreement.
"ANB" means American National Bank and Trust Company of Chicago, a
national banking association.
"Applicable Margin" means (a) with respect to LIBOR Rate Loans, 4.00%,
and (b) with respect to Base Rate Loans, 2.50%.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all reasonable disbursements of
internal counsel.
"Availability" means as of any date of determination thereof, an amount
determined by subtracting (i) the aggregate outstanding amount of Revolving
Loans and Letter of Credit Participation Liability from (ii) the maximum amount
of Revolving Loans and Letter of Credit Participation Liability which could then
be outstanding pursuant to Section 1.1(a).
"Availability Certificate" means a duly completed certificate of
Borrower in substantially the form of Exhibit 11.1(a) hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq., as amended and in effect from time to time and the
regulations issued from time to time thereunder.
"Base Rate" means, for any day, a rate of interest equal to the rate of
interest which is identified as the "Prime Rate" and normally published in the
Money Rates section of The Wall Street Journal (or, if such rate ceases to be so
published, as quoted from such other generally available and recognizable source
as the Agent may select).
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
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"Bloomingdale Guaranty" means that certain Guaranty dated as of June 7,
2000 executed by Borrower in favor of ANB guaranteeing to ANB the payment of
one-third (1/3) of the reimbursement obligations of DuPage LLC to ANB in respect
of that certain letter of credit dated June 7, 2000 issued by ANB securing
$14,500,000 principal amount of bonds issued by the Bloomingdale Development
Authority, the net proceeds of which issuance of bonds has been loaned to DuPage
LLC for site acquisition and construction of a health and fitness center in
Bloomingdale, DuPage County, Illinois.
"Borrowing" means a borrowing hereunder consisting of Loans or L/C
Facilities made to the Borrower on the same day by the Lenders pursuant to
Article I.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in Chicago, Illinois or New York, New York are
authorized or required by law to close and, if the applicable Business Day
relates to any LIBOR Rate Loan, a day on which dealings are carried on in the
London interbank market.
"Call Agreement" means that certain Amended and Restated Call Agreement
dated as of March 3, 1999 by and among U.S. Bank and Antares.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy and having general application to lenders of the same
classification of a Lender or of any corporation controlling a Lender.
"Capital Expenditures" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing of fixed or capital assets or additions to fixed
or capital assets (including replacements, capitalized repairs and improvements
during such period) which should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries.
"Capital Lease" means any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease.
"Capital Lease Obligations" means all monetary obligations of the
Borrower or any of its Subsidiaries under any Capital Leases.
"Capitalization Documents" means, collectively, the Borrower's Articles
of Incorporation and by-laws, each certificate of designation relating to any
shares of outstanding capital stock of the Borrower and each subscription
agreement or other instrument, document or agreement governing or relating to
any capital stock of the Borrower.
"Cash Equivalents" means: (a) securities issued or fully guaranteed or
insured by the United States Government or any agency thereof having maturities
of not more than six (6) months from the date of acquisition; (b) certificates
of deposit, time deposits, repurchase agreements, reverse repurchase agreements,
or bankers' acceptances, having in each case a tenor of not more than six (6)
months, issued by any Lender, or by any U.S. commercial bank or any branch or
agency of a non-U.S. bank licensed to conduct business in the U.S. having
combined capital and surplus of not less than $250,000,000; (c) commercial paper
of an issuer rated at least
68
A-1 by Standard & Poor's Corporation or P-1 by ▇▇▇▇▇'▇ Investors Service Inc.
and in either case having a tenor of not more than three (3) months.
"Change of Control" means any transfer of capital stock of the Borrower
as a result of which, without the consent of the Required Lenders:
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ individually ceases to hold, legally or
beneficially, the percentage of ownership as a shareholder of Borrower
which he holds on the Effective Date, or the other shareholders of the
Borrower who are employees of the Borrower as of the Effective Date
cease to hold, legally or beneficially, at least four percent (4%) of
the outstanding ownership of the Borrower, except to the extent that
▇▇▇▇▇▇ ▇▇▇▇▇▇ and such other employee shareholders are diluted (but not
more than proportionately) as the result of a purchase of new shares of
capital stock of the Borrower by contributors of capital raised in
either the public or private markets; provided, however, that
(x) ▇▇▇▇▇▇ ▇▇▇▇▇▇ may transfer up to five percent (5%) of his
holdings in Borrower in any calendar year (but such transfer right
shall not be cumulative across calendar years); and
(y) ▇▇▇▇▇▇ ▇▇▇▇▇▇ or any such employee shareholder may
transfer any or all of his shares:
1. to the Borrower pursuant to the death of such
shareholder, or
2. to any adult member of such shareholder's "immediate
family" (meaning the spouse, a sibling, a lineal
ancestor or a lineal descendent (including a legally
adopted child) or a spouse of any lineal ancestor or
descendent) or to a trust for the benefit of any
member of the "immediate family" of such shareholder,
provided that with respect to any such transfer by
▇▇▇▇▇▇ ▇▇▇▇▇▇, subsequent to such transfer he remains
a shareholder and retains not less than 15.1%
ownership of the Borrower (subject to reduction as
provided in clause (x) preceding); or
(ii) any shareholder (other than ▇▇▇▇▇▇ ▇▇▇▇▇▇) owning an
interest of more than ten percent (10%) of Borrower's capital stock as
of the Effective Date shall transfer any of its or his shares without
the consent of Required Lenders; provided that such a shareholder may
transfer any or all of its shares without such consent (x) to any of
its Affiliates, or (y) to the Borrower pursuant to the death of such
shareholder.
"Club" means (a) a health club facility which is operated by Borrower;
and (b) without duplication, any Project for which Borrower has submitted a Good
Faith Project Budget to the Agent. There are twenty-one (21) operating Clubs as
of the Effective Date.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
69
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Borrower as debtor and its
Subsidiaries in or upon which a Lien now or hereafter exists in favor of any
Lender or the Agent for the benefit of the Lenders, whether under this Agreement
or under any other documents executed by any such Persons and delivered to the
Agent.
"Collateral Documents" means, collectively, the Security Agreements,
the Guaranties, the Leasehold Mortgages, the Pledge Agreement, the Negative
Pledge Agreement, the Assignment of Leases and Rents, the Deposit Account
Agreements with respect to Permitted Accounts, the TIAA Subsidiary Upstream
Distribution Agreements, the Rent Reserve Account Agreement, and all other
security agreements, mortgages, deeds of trust, patent and trademark
assignments, lease assignments, guarantees and other similar agreements, and all
amendments, restatements, modifications or supplements thereof or thereto, by or
between any one or more of the Borrower or its Subsidiaries and any Lender or
the Agent for the benefit of the Lenders now or hereafter delivered to the
Lenders or the Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the UCC or comparable law) against the
Borrower or its Subsidiaries as debtor in favor of any Lender or the Agent for
the benefit of the Lenders, as secured party.
"Commitment" means, for each Lender, its Revolving Loan Commitment.
"Commitment Percentage" means, as to any Lender, the percentage
equivalent of such Lender's Revolving Loan Commitment divided by the Aggregate
Revolving Loan.
"Consolidated EBIDAT" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP, the
sum of (a) Consolidated Net Income (Loss) for such period plus (b) all amounts
deducted in determining such Consolidated Net Income (Loss) for such period for
depreciation or amortization, plus (c) interest expense deducted in determining
such Consolidated Net Income (Loss) for such period, plus (d) all accrued taxes
on or measured by income to the extent included in the determination of such
Consolidated Net Income (Loss) for such period, plus (e) to the extent included
in determining such Consolidated Net Income (Loss) for such period, any
extraordinary losses and losses from discontinued operations, plus (f) all other
non-cash charges which reduced such Consolidated Net Income (Loss) for such
period.
"Consolidated Net Income (Loss)" means, for any period, the net income
(or loss) of the Borrower and its Subsidiaries on a consolidated basis for such
period, determined in accordance with GAAP; provided that in determining
Consolidated Net Income (Loss) there shall be excluded: (a) the income (or loss)
of any Person which is not a Wholly-Owned Subsidiary of Borrower, except to the
extent of the amount of dividends or other distributions actually paid to
Borrower in cash by such Person during such period that is not at the time
prohibited by operation of the terms of its charter or of any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Person; (b) the income (or loss) of any Person accrued prior
to the date it becomes a Subsidiary of Borrower or is merged into or
consolidated with Borrower or any of its Subsidiaries or that Person's assets
are acquired by Borrower or any of its Subsidiaries; (c) the proceeds of any
life insurance policy; (d) gains (but not losses) from the sale, exchange,
transfer or other disposition of Property or assets not in the
70
ordinary course of business of Borrower and its Subsidiaries, and related tax
effects in accordance with GAAP; (e) any other extraordinary or non-recurring
gains (but not losses) of Borrower or its Subsidiaries, and related tax effects
in accordance with GAAP; and (f) in the event of a sale of a Club or a closing
of a Club, an amount equal to the income (or loss) of such Club for the period
for which Consolidated Net Income (Loss) is being calculated.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability, contingent or otherwise, of that Person: (i) with respect to any
indebtedness, lease, dividend or other obligation of another Person if the
primary purpose or intent of the Person incurring such liability, or the primary
effect thereof, is to provide assurance to the obligee of such liability that
such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto; (ii) with
respect to any letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings; (iii) under
any Rate Contracts; (iv) to make take-or-pay or similar payments if required
regardless of nonperformance by any other party or parties to an agreement; or
(v) for the obligations of another through any agreement to purchase, repurchase
or otherwise acquire such obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet item or level of
income of another Person. The amount of any Contingent Obligation shall be equal
to the amount of the obligation so guaranteed or otherwise supported or, if not
a fixed and determined amount, the maximum amount so guaranteed or supported.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means the Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Borrower pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the Borrower converts a Base
Rate Loan to a LIBOR Rate Loan or a LIBOR Rate Loan to a Base Rate Loan.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Deposit Account Agreements" mean the Deposit Account Agreements
between the Agent, on behalf of the Lenders, Borrower or one of its Subsidiaries
(as applicable), and each bank or institution at which Borrower or its
Subsidiary maintains a Permitted Account concerning control of the cash or
investment securities contained in the Permitted Account, in form and substance
acceptable to the Agent.
"Disposition" means the sale, lease, conveyance or other disposition of
Property, other than sales or other dispositions expressly permitted under
subsection 5.2.
71
"Dollars", "dollars" and "$" each mean lawful money of the United
States of America.
"DuPage LLC" means Bloomingdale LIFE TIME Fitness, L.L.C., an Illinois
limited liability company.
"DuPage LLC Agreement" means the Operating Agreement of DuPage LLC
dated as of December 1, 1999 by and among Borrower and the other members of
DuPage LLC.
"Effective Date" means the date on which all conditions precedent set
forth in Section 2.1 are satisfied or waived by Antares and BNPP.
"Eligible Assignee" means any of: (a) a commercial bank organized under
the laws of the United States, or any State thereof having combined capital and
surplus of not less than $250,000,000; (b) a commercial bank organized under the
laws of any other country having combined capital and surplus of not less than
$250,000,000; or (c) a finance company, insurance company or other financial
institution or fund which is engaged in making, purchasing or otherwise
investing in commercial loans for its own account in the ordinary course of its
business.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from Property,
whether or not owned by the Borrower.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters; including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control
Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and
Recovery Act, the Toxic Substances Control Act, the Emergency Planning and
Community Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b), 414(c) or 414(m) of the Code.
72
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Qualified Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section 4041
or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure
by the Borrower or any member of the Controlled Group to make required
contributions to a Qualified Plan or Multiemployer Plan; (f) an event or
condition which might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Qualified Plan or Multiemployer Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate; (h) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to any
Plan; (i) a non-exempt prohibited transaction occurs with respect to any Plan
for which the Borrower or any Subsidiary of the Borrower may be directly or
indirectly liable; or (j) a violation of the applicable requirements of Section
404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the
Code by any fiduciary or disqualified person with respect to any Plan for which
the Borrower or any member of the Controlled Group may be directly or indirectly
liable.
"Event of Loss" means, with respect to any Property, any of the
following: (a) any loss, destruction or damage of such Property; (b) any pending
or threatened institution of any proceedings for the condemnation or seizure of
such Property or for the exercise of any right of eminent domain; or (c) any
actual condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such Property, or confiscation of such Property or the
requisition of the use of such Property. "Event of Loss" also means the death of
▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Excess Project Investment Borrowing" means a Borrowing of a Revolving
Loan or a L/C Facility used by Borrower either (x) to fund an equity investment
in RE Holdings, the proceeds of which will be used exclusively by RE Holdings to
acquire or develop a Project, or (y) to acquire or develop a Project directly,
where, after giving effect to such Borrowing or L/C Facility, either
(a) the total amount of all Borrowings and L/C Facilities
requested by Borrower with respect to such Project exceeds 65% of the
total budget for the Project contained in the Good Faith Project Budget
delivered to the Agent with respect to such Project, or
(b) the total amount proposed to be allocated to a particular
cost category of a Project in all Notices of Borrowings and requests
for L/C Facilities with respect to that Project exceeds both by 125%
and $250,000 the costs estimated for such category in the Good Faith
Project Budget for that Project.
"Exchange Act" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
73
"Excluded Real Property" means (a) the Plymouth Facility as long as a
Leasehold Mortgage is prohibited by the U.S. Bank Facilities, and (b) all of the
real Property owned by the TIAA Subsidiaries as long as such real Property is
subject to the TIAA Facilities.
"FCA Construction Holdings" means FCA Construction Holdings, LLC, a
Minnesota limited liability company.
"FCA Restaurant Holdings" means FCA Restaurant Holdings, LLC, a
Minnesota limited liability company.
"FCA Restaurant Holdings Guaranty" means that certain Subsidiary
Guaranty dated as of August 30, 1999 made by FCA Restaurant Holdings in favor of
Antares, as Agent, for the benefit of Agent and the Lenders.
"Federal Funds Rate" means, for any period, the rate per annum set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such day under the caption "Federal Funds Effective Rate". If on
any relevant day the appropriate rate for such previous day is not yet published
in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day
will be the arithmetic mean as determined by the Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York
time) on that day by each of three leading brokers of Federal funds transactions
in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fixed Charge Coverage Ratio" means, as of any date of determination
thereof, the ratio of (a) Consolidated EBIDAT for the twelve months most
recently ended less consolidated Capital Expenditures of the Borrower and its
Subsidiaries incurred with respect to Clubs that have been operating during such
period and less consolidated cash taxes for Borrower and its Subsidiaries for
such period, to (b) Total Interest Expense for such period plus principal
amortization of Indebtedness for such period for Borrower and its Subsidiaries
on a consolidated basis.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Good Faith Project Budget" means, with respect to any Project, a
budget in such detail as may be reasonably required by Agent setting forth the
various cost categories of all hard
74
and soft costs to be incurred by RE Holdings in connection with the land
acquisition, ownership, development and construction of the applicable Project,
which shall be delivered by Borrower to the Agent not less than seven (7) days
prior to the Initial Project Borrowing with respect to such Project pursuant to
Section 1.5(b).
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty" means a written guaranty, in form and substance satisfactory
to Agent and Required Lenders, executed by a Subsidiary of Borrower in favor of
Agent for the benefit of Agent and the Lenders guaranteeing the Obligations.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law.
"Hedging Agreement" means any interest rate, currency or commodity swap
agreement, cap agreement or collar agreement, and any other agreement or
arrangement designed to protect a Person against fluctuations in interest rates,
currency exchange rates or commodity prices.
"Hedging Obligation" means, with respect to any Person, any net
liability of such Person under any Hedging Agreement.
"Indebtedness" of any Person means, without duplication: (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the Ordinary Course of Business); (c) all reimbursement
or payment obligations with respect to letters of credit, surety bonds and other
similar instruments; (d) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to
Property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all Capital Lease Obligations; (g)
special assessments payable by such Person as tenant or lessee under any of the
RE Holdings Leases or TIAA Subsidiary Leases or any other lease of premises
constituting or including a Club; (h) all indebtedness referred to in clauses
(a) through (g) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in Property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
indebtedness; and (i) all Contingent Obligations described in clause (i) of the
definition thereof in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (h) above, which, in conformity with
GAAP, are then computed at the amount which, in light of the facts and
circumstances existing on such date, represents the amount that can reasonably
be expected to become an actual or matured liability.
75
"Initial Project Borrowing" means, with respect to a Project, the first
Borrowing or request for a L/C Facility made by the Borrower with respect to
such Project.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case (a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of Operating EBIDAT for the twelve months then ended to Operating Company
Interest Expense for such twelve month period.
"Interest Payment Date" means, (a) with respect to any LIBOR Rate Loan
(other than a LIBOR Rate Loan having an Interest Period of six (6) months) the
last day of each Interest Period applicable to such Loan, (b) with respect to
any LIBOR Rate Loan having an Interest Period of six (6) months, the last day of
each three (3) month interval, and (c) with respect to Base Rate Loans, the
first day of each calendar month and each date a Base Rate Loan is converted
into a LIBOR Rate Loan.
"Interest Period" means, with respect to any LIBOR Rate Loan, the
period commencing on the Business Day the Loan is disbursed or continued or on
the Conversion Date on which the Loan is converted to the LIBOR Rate Loan and
ending on the date one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(a) if any Interest Period pertaining to a LIBOR Rate Loan
would otherwise end on a day which is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period; and
(c) no Interest Period for any Revolving Loan shall extend
beyond the Revolving Termination Date.
"Leasehold Mortgage" means a Leasehold Mortgage, in form and substance
reasonably satisfactory to Agent and Borrower, made by Borrower in favor of the
Agent for the benefit of the Lenders securing an amount of Indebtedness
determined by the Agent which is reasonably in light of the circumstances.
"Leasehold Improvement Project Borrowing" means a Borrowing of a
Revolving Loan or a request for a L/C Facility used by Borrower exclusively to
finance the development of a Project
76
on real Property leased by a Person, other than RE Holdings or any TIAA
Subsidiary, to Borrower.
"Lending Office" means, with respect to any Lender, the office or
offices of the Lender specified as its "Lending Office" opposite its name on the
applicable signature page hereto, or such other office or offices of the Lender
as it may from time to time notify the Borrower and the Agent.
"Letter of Credit Participation Liability" means, as to each Lender
Letter of Credit and each Letter of Credit Participation Agreement, all
reimbursement obligations and all other liabilities of Borrower or any of its
Subsidiaries to Agent and the Lenders in connection with the Lender Letter of
Credit or to the obligee with respect to the transaction for which the Letter of
Credit Participation Agreement was issued, whether contingent or otherwise,
including with respect to any letter of credit, without duplication: (a) the
amount available to be drawn or which may become available to be drawn; (b) all
amounts which have been paid or made available by the issuing bank or by the
Agent under such Lender Letters of Credit or Letter of Credit Participation
Agreement, in each instance, to the extent not reimbursed; and (c) all unpaid
interest, fees and expenses.
"LIBOR" means, for each Interest Period, the offered rate per annum for
deposits of Dollars for the applicable Interest Period that appears on Telerate
Page 3750 as of 11:00 A.M. (London, England time) three (3) Business Days prior
to the first day in such Interest Period. If no such offered rate exists, such
rate will be the rate of interest per annum, as determined by the Agent (rounded
upwards, if necessary, to the nearest 1/16 of 1%) at which deposits of Dollars
in immediately available funds are offered at 11:00 A.M. (London, England time)
three (3) Business Days prior to the first day in such Interest Period by major
financial institutions reasonably satisfactory to the Agent in the London
interbank market for the applicable Interest Period and for an amount equal or
comparable to the principal amount of the Loans to be borrowed, converted or
continued as LIBOR Rate Loans on such date of determination.
"LIBOR Rate Loan" means a Loan that bears interest based upon LIBOR.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the UCC or any comparable law) and any contingent
or other agreement to provide any of the foregoing, but not including the
interest of a lessor under a lease which is not a Capital Lease.
"Loan" means a Term Loan or any extension of credit by a Lender to the
Borrower pursuant to Article I hereof, and may be a Base Rate Loan or a LIBOR
Rate Loan.
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"Loan Documents" means this Agreement, the Revolving Notes, the Term
Notes, the Collateral Documents, Notices of Borrowing, requests for L/C
Facilities, and all documents delivered to the Agent in connection therewith.
"Loan to Value Ratio" means, as of any date of determination thereof,
the ratio of the aggregate outstanding principal balance of the U.S. Bank
Facilities as of such date to the book value of the tangible assets of RE
Holdings (excluding cash and Cash Equivalents) as of such date.
"LTF Michigan LLC" means LTF Michigan Real Estate, LLC, a Delaware
limited liability company.
"LTF Minnesota LLC" means LTF Minnesota Real Estate, LLC, a Delaware
limited liability company.
"LTF RE LLC" means LTF Real Estate Holdings, LLC, a Delaware limited
liability company.
"LTF USA LLC" means LTF USA Real Estate, LLC, a Delaware limited
liability company.
"LT Kids" means Life Time Kids, Inc., a Minnesota corporation.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Borrower to perform in any material respect its obligations under any Loan
Document and avoid any Event of Default; or (c) a material adverse effect upon
(i) the legality, validity, binding effect or enforceability of any Loan
Document, or (ii) the perfection or priority of any Lien granted to the Lenders
or to the Agent for the benefit of the Lenders under any of the Collateral
Documents.
"Maximum Revolving Loan Balance" means the lesser of:
(i) an amount equal to (A) Operating EBIDAT for the
twelve-month period ending on the last day of the preceding calendar
month multiplied by three (3.0) minus (B) the aggregate principal
balance of all Senior Debt (other than Revolving Loans and Letter of
Credit Participation Liability) then outstanding, or
(ii) the Aggregate Revolving Loan Commitment then in effect.
"Mortgagee and Leasehold Mortgage Agreement" means that certain Amended
and Restated Mortgagee and Leasehold Mortgage Agreement dated as of March 3,
1999 by and among U.S. Bank, U.S. Bank in its separate capacity as collateral
agent for the benefit of itself and certain other financial institutions, and
Antares in its capacity as Agent for the Lenders.
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"Multiemployer Plan" means a "multiemployer plan" (within the meaning
of Section 4001(a)(3) of ERISA) and to which Borrower or any member of the
Controlled Group makes, is making, or is obligated to make contributions or,
during the preceding three calendar years, has made, or been obligated to make,
contributions.
"Negative Pledge Agreement" means the Amended and Restated Negative
Pledge Agreement, dated as of October 11, 2000 made by Norwest, ▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇▇▇▇ in favor of the Agent, for the benefit of the Lenders, as
amended, restated, modified or supplemented and in effect from time to time.
"Net Proceeds" means proceeds in cash, checks or other cash equivalent
financial instruments (including Cash Equivalents) as and when received by the
Person making a Disposition, net of: (a) the direct costs relating to such
Disposition excluding amounts payable to the Borrower or any Affiliate of the
Borrower, (b) sale, use or other transaction taxes paid or payable as a result
thereof, and (c) amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Indebtedness secured by a Lien on the asset
which is the subject of such Disposition. "Net Proceeds" shall also include
proceeds paid on account of any Event of Loss net of (i) all money actually
applied to repair or reconstruct the damaged property or property affected by
the condemnation or taking, (ii) all of the costs and expenses reasonably
incurred in connection with the collection of such proceeds, award or other
payments, and (iii) any amounts retained by or paid to parties having superior
rights to such proceeds, awards or other payments. "Net Proceeds" shall also
include proceeds received by the Borrower on account of any public offering of
any class of Borrower's equity securities, net of expenses of registration,
underwriting commissions, filing fees and other expenses incurred in effecting
such public offering.
"Norwest" means any or all of (i) Norwest Equity Partners V, LP, a
Minnesota limited partnership, (ii) Norwest Equity Partners VI, LP, a Minnesota
limited partnership, and (iii) Norwest Equity Partners VII, LP, a Minnesota
limited partnership.
"Notice of Borrowing" means a notice given by the Borrower to the Agent
pursuant to Section 1.5, in substantially the form of Exhibit 11.1(b) hereto.
"Notice of Conversion/Continuation" means a notice given by the
Borrower to the Agent pursuant to Section 1.6, in substantially the form of
Exhibit 11.1(c) hereto.
"Obligations" means all Loans, and other Indebtedness, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower to any
Lender, the Agent, or any other Person required to be indemnified, that arises
under any Loan Document, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired.
"Operating EBIDAT" means, for any period, Consolidated EBIDAT for such
period less (a) rents paid to the TIAA Subsidiaries or to RE Holdings for such
period, plus (b) amounts
79
received by the Borrower pursuant to the TIAA Subsidiary Upstream Distribution
Agreement for such period, plus (c) any rent rebates received from RE Holdings
for such period.
"Operating Company Interest Expense" means, for any period, interest
expense for the Senior Debt except any amounts thereof treated as amortizable
deferred financing costs, plus all amounts of interest with respect to the
Senior Debt for such period which have been capitalized.
"Ordinary Course of Business" means, in respect of any transaction
involving the Borrower or any Subsidiary of the Borrower, the ordinary course of
such Person's business, as conducted by any such Person in accordance with past
practice and undertaken by such Person in good faith and not for purposes of
evading any covenant or restriction in any Loan Document.
"Organization Documents" means, (a) for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation, (b) for any partnership, the partnership agreement and, if
applicable, certificate of limited partnership or (c) for any limited liability
company, the operating agreement and articles or certificate of formation.
"Patricof" means either or both of APAX Excelsior VI, L.P., a Delaware
limited partnership, and (ii) Patricof Private Investment Club III, L.P., a
Delaware limited partnership.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any of its principal functions under ERISA.
"Permitted Account" means a bank account listed on Schedule 3.21C or
opened after the date of this Agreement, in either case as to which Borrower has
delivered to the Agent a fully executed Deposit Account Agreement, in form and
substance acceptable to the Agent.
"Permitted Collateral Location" means (a) any of the locations
specified on Schedule 3.21B, and (b) any other locations in the State of
Minnesota which Borrower designates in writing from time to time to the Agent.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower or any member of the Controlled Group sponsors or
maintains or to which the Borrower or any member of the Controlled Group makes,
is making or is obligated to make contributions.
"Pledge Agreement" means the Pledge Agreement, dated as of even date
herewith, in form and substance reasonably acceptable to Agent and the Borrower,
made by the Borrower in favor of the Agent, for the benefit of the Lenders.
"Pledged Collateral" has the meaning specified in the Pledge Agreement.
80
"Project" means the acquisition and development of real property by
Borrower for the purpose of developing a health and fitness facility or by RE
Holdings for the purpose of developing and leasing back to Borrower a health and
fitness facility pursuant to a RE Holdings Lease.
"Project Investment Borrowing" means a Borrowing of a Revolving Loan or
a L/C Facility, other than an Excess Project Investment Borrowing, used by
Borrower to fund an equity investment in RE Holdings, the proceeds of which will
be used exclusively by RE Holdings to acquire or develop a Project.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes, is
making or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding period covering at least five (5)
plan years, but excluding any Multiemployer Plan.
"Rate Contracts" means swap agreements (as such term is defined in
Section 101 of the Bankruptcy Code) and any other agreements or arrangements
designed to provide protection against fluctuations in interest or currency
exchange rates.
"RE Holdings" means FCA Real Estate Holdings, L.L.C., a Delaware
limited liability company and a Wholly-Owned Subsidiary of Borrower.
"RE Holdings Lease" means a long-term lease agreements between RE
Holdings as lessor and Borrower as lessee relating of a Club, and "RE Holdings
Leases" means two or more such long-term leases, as the context may require.
"Related Agreements" mean (a) the U.S. Bank Financing Agreements, (b)
the TIAA Financing Agreements, (c) the Bloomingdale Guaranty, (d) the DuPage LLC
Agreement, (e) the RE Holdings Leases, (f) the leasehold mortgage granted by
Borrower to U.S. Bank with respect to certain real Property located in Plymouth,
Minnesota and the agreements related thereto, (g) the TIAA Subsidiary Leases,
and (h) the Capitalization Documents.
"Rent Reserve" means a reserve account with the Agent, held as
additional Collateral securing the Obligations pursuant to the Rent Reserve
Account Agreement, and funded with an amount equal to five (5) months' of the
required payments of principal and interest and impositions applicable to all
outstanding TIAA Facilities, which amount shall be subject to increase (or
decrease) from time to time upon increase (or decrease) of the TIAA Facilities.
"Rent Reserve Account Agreement" means an agreement between Borrower
and Agent, for the benefit of Agent and the Lenders, in the form of Exhibit
11.1(f) hereto.
"Reportable Event" means, as to any Plan, (a) any of the events set
forth in Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day
81
notice requirement under ERISA has been waived in regulations issued by the
PBGC, (b) a withdrawal from a Plan described in Section 4063 of ERISA, or (c) a
cessation of operations described in Section 4062(e) of ERISA.
"Required Lenders" means at any time (a) Lenders then holding at least
sixty six and two-thirds percent (66-2/3%) of the sum of the Aggregate Revolving
Loan Commitment then in effect, or (b) if the Revolving Loan Commitments have
been terminated, Lenders then having at least sixty six and two-thirds percent
(66-2/3%) of the aggregate unpaid principal amount of Loans then outstanding.
"Requirement of Law" means, as to any Person, any law (statutory or
common), ordinance, treaty, rule, regulation, order, policy, other legal
requirement or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer or the
president of the Borrower, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants or delivery of financial information, the chief financial officer or
the treasurer of the Borrower, or any other officer having substantially the
same authority and responsibility.
"Revolving Note" means a promissory note of the Borrower payable to the
order of a Lender and otherwise substantially the form of Exhibit 11.1(d)
hereto, evidencing indebtedness of the Borrower under the Revolving Loan
Commitment of such Lender.
"Revolving Termination Date" means the earlier to occur of: (a) January
2, 2003; and (b) the date on which the Aggregate Revolving Loan Commitment shall
terminate in accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any entity
succeeding to any of its principal functions.
"Security Agreement" means (i) the Security Agreement, dated as of
November 18, 1997 made by the Borrower in favor of the Agent for the benefit of
Agent and the Lenders, and (ii) any other written security agreement, in form
and substance satisfactory to Agent and Required Lenders, executed by a
Subsidiary of Borrower in favor of Agent for the benefit of Agent and the
Lenders securing the Obligations and/or such Subsidiary's Guaranty.
"Senior Debt" means, as of any determination date, the sum of (a) the
outstanding principal balance of the Term Loans and the Revolving Loans and any
Letter of Credit Participation Liability at such time, plus (b) the portion of
outstanding Capital Lease Obligations which, in accordance with GAAP, is treated
as principal of Indebtedness at such time, plus (c) the outstanding amount of
the Bloomingdale Guaranty, plus (d) all other Indebtedness secured by a lien on
any Property of Borrower or its Subsidiaries, plus (e) the aggregate unfunded
amount of any obligations of the Borrower which have become due pursuant to
section 1 of the U.S. Bank Maintenance Agreement, less (f) the Rent Reserve as
of such date; provided that Senior Debt does not include Indebtedness owed by RE
Holdings to the U.S. Bank Lenders
82
under the U.S. Bank Facilities or Indebtedness owed by the TIAA Subsidiaries to
TIAA under the TIAA Facilities.
"Senior Leverage Ratio" means, as of any date of determination, the
ratio of Senior Debt as of such date to Operating EBIDAT for the twelve month
period most recently ended.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the Property of such Person as a going concern is greater than the amount of
such Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(31) of the Bankruptcy Code and, in the alternative, for purposes
of the Uniform Fraudulent Transfer Act; (b) the present fair saleable value of
the Property of such Person as a going concern is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured; (c) such Person is able to realize upon its
Property and pay its debts and other liabilities (including disputed, contingent
and unliquidated liabilities) as they mature in the normal course of business;
(d) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital.
"Subordinated Indebtedness" means the Indebtedness described on
Schedule 5.5 and all other Indebtedness of Borrower or any of its Subsidiaries
which is subordinated in right of payment to the Obligations.
"Subsidiary" of a Person means any corporation, association, limited
liability company, partnership, joint venture or other business entity of which
more than fifty percent (50%) of the voting stock or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof.
"Term Note" means a promissory note of the Borrower payable to the
order of a Lender and otherwise substantially the form of Exhibit 11.1(e)
hereto, evidencing the Term Loan of such Lender to the Borrower.
"TIAA" means Teachers Insurance and Annuity Association of America, a
New York corporation.
"TIAA Facilities" means one or more mortgage loan facilities between
the TIAA Subsidiaries and TIAA which will be used to refinance the real Property
and improvements relating to those Clubs which are from time to time held by
TIAA Subsidiaries.
"TIAA Financing Agreements" means the promissory notes, mortgages,
deeds of trust, security agreements, leasehold assignments and other
instruments, documents and agreements executed and delivered by the TIAA
Subsidiaries and/or the Borrower to evidence the TIAA Facilities.
83
"TIAA Letter of Credit" means a letter of credit issued in favor of
TIAA, in the original face amount of $5,000,000 securing the obligations of the
TIAA Subsidiaries under the TIAA Financing Agreements.
"TIAA Subsidiary" means any of LTF Michigan LLC, LTF Minnesota LLC, LTF
RE LLC, and LTF USA LLC and each other Subsidiary of Borrower which hereafter
becomes the owner of real Property which is subject to the TIAA Financing
Agreements and to a TIAA Subsidiary Lease with the Borrower as tenant.
"Total Debt" means, as of any determination date, an amount equal to
(a) the entire consolidated Indebtedness of the Borrower and all of its
Subsidiaries (including, without limitation, any Letter of Credit Participation
Liability and including Indebtedness of the TIAA Subsidiaries and Indebtedness
of RE Holdings), plus (b) to the extent not included pursuant to clause (a)
preceding, the aggregate unfunded amount of any obligations of the Borrower
which have become due pursuant to section 1 of the U.S. Bank Maintenance
Agreement, less (c) the Rent Reserve as of such date.
"Total Interest Expense" means, for any period, interest expense for
Total Debt except any amounts thereof treated as amortizable deferred financing
costs plus all amounts of interest with respect to the Total Debt for such
period which have been capitalized.
"Total Leverage Ratio" means, as of any date of determination, the
ratio of Total Debt as of such date to Consolidated EBIDAT for the twelve months
most recently ended.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of Illinois.
"Unfunded Pension Liabilities" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used by the Plan's
actuaries for funding the Plan pursuant to section 412 for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"U.S. Bank" means U.S. Bank National Association, a national banking
association.
"U.S. Bank Credit Agreement" means that certain Amended and Restated
Master Construction and Term Loan Agreement dated as of July 17, 2000 between RE
Holdings, U.S. Bank in its capacity as administrative bank thereunder and the
"Lenders" referred to therein, as amended by Amendment No. 1 thereto dated as of
June 14, 2001 and by Amendment No. 2 thereto dated as of July 19, 2001.
"U.S. Bank Facilities" means the debt financing obtained by RE Holdings
from U.S. Bank and certain other financial institutions (the "U.S. Bank Facility
Lenders"), pursuant to one or more mortgage loan facilities between RE Holdings
and U.S. Bank, for itself or as agent for the U.S. Bank Facility Lenders.
84
"U.S. Bank Financing Agreements" means, collectively, the U.S. Bank
Credit Agreement, the U.S. Bank Maintenance Agreement, the U.S. Bank Rebatable
Rent Reserve Account Agreement, the U.S. Bank Replacement Reserve Account
Agreement, the promissory notes, mortgages, deeds of trust, security agreements,
leasehold assignments, and other instruments, documents and agreements executed
and delivered by RE Holdings and/or the Borrower to evidence the U.S. Bank
Facilities.
"U.S. Bank Maintenance Agreement" means that certain Maintenance
Agreement dated as of July 17, 2001 made by the Borrower in favor of RE Holdings
and in favor of U.S. Bank, acting in its capacity as Administrative Bank under
the U.S. Bank Financing Agreements.
"U.S. Bank Rebatable Rent Reserve Account Agreement" means that certain
Rebatable Rent Reserve Account Agreement dated as of July 19, 2001 between RE
Holdings and U.S. Bank in its capacity as administrative bank under the U.S.
Bank Credit Agreement.
"U.S. Bank Replacement Reserve Account Agreement" means that certain
Replacement Reserve Account Agreement dated as of July 19, 2001 between RE
Holdings and U.S. Bank in its capacity as administrative bank under the U.S.
Bank Credit Agreement.
"Wholly-Owned Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of each
class having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Borrower, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
"Withdrawal Liabilities" means, as of any determination date, the
aggregate amount of the liabilities, if any, pursuant to Section 4201 of ERISA
if the Controlled Group made a complete withdrawal from all Multiemployer Plans
and any increase in contributions pursuant to Section 4243 of ERISA.
"Working Capital Borrowing" means a Borrowing of the Revolving Loan or
a L/C Facility the proceeds or benefit of which is used solely to finance the
working capital requirements of Borrower incurred in the Ordinary Course of
Business.
11.2 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein, all
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto. The meaning of
defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. The words "hereof', "herein", "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection,
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
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(c) Certain Common Terms. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced. The term "including" is not limiting and means
"including without limitation."
(d) Performance; Time. Whenever any performance obligation hereunder
(other than a payment obligation) shall be stated to be due or required to be
satisfied on a day other than a Business Day, such performance shall be made or
satisfied on the next succeeding Business Day. In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including." If any provision of this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be interpreted to
encompass any and all means, direct or indirect, of taking, or not taking, such
action.
(e) Contracts. Unless otherwise expressly provided herein, references
to agreements and other contractual instruments, including this Agreement and
the other Loan Documents, shall be deemed to include all subsequent amendments,
thereto, restatements thereof and other modifications and supplements thereto
which are in effect from time to time, but only to the extent such amendments
and other modifications are not prohibited by the terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be construed
as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
11.3 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year", "fiscal quarter" and "fiscal
month" refer to such fiscal periods of the Borrower.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their duly authorized officers as
of the day and year first above written.
LIFE TIME FITNESS, INC.
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
Borrower's FEIN: ▇▇-▇▇▇▇▇▇▇
Address for notices: LIFE TIME FITNESS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Wire Transfers: Riverside Bank
ABA 09100 1270
for the benefit of Life Time Fitness, Inc.
Account No. ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ANTARES CAPITAL CORPORATION, as Agent and
as a Lender
By:_______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address for notices: Antares Capital Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for payments: Antares Capital Corporation
Account # 4070-6016
Citibank N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Reference: Life Time Fitness
Please advise ▇▇▇ ▇▇▇▇▇▇▇▇▇ at
(▇▇▇) ▇▇▇-▇▇▇▇ upon receipt
BNP PARIBAS, as a Lender and as
Documentation Agent
By:_______________________________________
Name:_____________________________________
Title:____________________________________
By:_______________________________________
Name:
Title:____________________________________
Address for notices: BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Merchant Banking Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for payments: BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA # ▇▇▇-▇▇▇-▇▇▇
Account # 10313000103
Account Name: Loan Servicing Clearing
Account
Reference: Lifetime Fitness
CHASE MANHATTAN ▇▇▇▇, not individually but
solely as trustee of the Antares Funding
Trust dated under the Trust Agreement
dated as of November 30, 1999, as a Lender
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address for notices: Chase Manhattan Bank, as trustee of the
Antares Funding Trust created under the
Trust Agreement dated as of
November 30,1999
Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for payments: Chase Manhattan Bank
Account # 00102619468
ABA # ▇▇▇-▇▇▇-▇▇▇
Reference: BNF - Wire Clearing -
Asset Backed Securities
FFC: Antares Funding 55-03-011-2334400
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Schedule 1.1 (a)
Revolving Loan Commitments
Antares Capital Corporation $12,500,000.00
BNP Paribas $12,500,000.00
Chase Manhattan Bank, as trustee $ 0.00
---------------
Total: $25,000,000.00
1.1(a)-1
SCHEDULE 3.2
AUTHORIZED EQUITY SECURITIES, OPTIONS AND WARRANTS
A. Authorized Equity Securities.
1. Common Stock. (adjusted for the December 31, 1998 stock split
as converted)
NAME TOTAL SHARES
-------------------------------------------------------------------------------------------------------- ------------
▇▇▇▇▇▇, ▇▇▇▇▇▇ 3,059,000
Ankeny, DeWalt H., Jr. 40,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 10,200
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. 40,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 4,000
Bullion, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust 5,000
Bullion, ▇▇▇▇▇ ▇▇▇▇▇▇ Trust 5,000
Bullion, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust 5,000
Bullion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust 5,000
Bullion, ▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. 160,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & Co. Inc. CSDN FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ A/C # [intentionally omitted] 60,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ 5,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. 80,000
▇.▇. ▇▇▇▇▇▇▇▇ and W.I. ▇▇▇▇▇▇▇▇ Trustees U/A 10/30/95 with W. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 1,680,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, F.T. Weyerhaeuser, ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, Trustees under T/A executed by ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ June 13, 1958 FBO W. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 336,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 160,000
▇▇▇▇▇ 30.7C 580,000
▇▇▇▇▇, ▇▇▇▇▇ ▇. 220,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ FBO ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ 40,000
▇▇▇▇▇ Family Limited Partnership 20,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 40,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 40,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ 20,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 8,000
U.S. Bank Trust NA TTEE FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 40,000
▇▇▇▇▇▇▇▇, ▇▇▇ 80,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ 8,000
▇▇▇▇, ▇▇▇▇▇▇ ▇. 86,000
▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 5,000
▇▇▇▇▇▇▇▇, ▇▇▇▇ 40,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. 80,000
▇▇▇▇▇▇▇, Al 104,000
Jabari, Siros $12,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. 75,000
JBG Equity Enterprises, LP 35,000
HRJ Trust u/w FBO ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 13,333
HRJ Trust u/w FBO ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III 13,334
Kazeminy, ▇▇▇▇▇ ▇., Children's Trust 8,750
Kazeminy, ▇▇▇▇▇ ▇., Irrevocable Trust 8,750
Kazeminy, ▇▇▇▇▇▇ ▇. 465,000
▇▇▇▇▇, ▇▇▇▇▇ ▇. 40,000
▇▇▇▇▇, ▇▇▇▇ ▇. 160,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 80,000
Laden, ▇▇▇▇▇▇ ▇. 8,000
▇▇▇▇▇▇, ▇▇▇▇▇, Children's Trust 8,750
▇▇▇▇▇▇, ▇▇▇▇▇, Irrevocable Trust 8,750
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 40,000
Norwest Bank MN, NA as Agent for ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇) 8,000
3.2-1
NAME TOTAL SHARES
-------------------------------------------------------------------------------------------------------- ------------
Norwest Equity Partners V 2,423,999
▇▇▇▇▇▇, ▇▇▇▇▇ 4,000
▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 80,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.& ▇▇▇▇▇▇ ▇. 80,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 40,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ A 40,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors - Fund XI 120,002
▇▇▇▇▇, ▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. 40,000
▇▇▇▇▇▇▇, A. ▇▇▇▇ (▇▇▇▇▇▇) 80,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 30,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 97,500
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ▇▇. 306,500
▇▇▇▇▇▇▇, ▇▇▇▇▇ 9,995
▇▇▇▇▇▇, T. Jay, & Associates, Inc. 80,000
▇▇▇▇▇▇▇ Management 68,000
U.S. Bank NA, Trustee, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ 80,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 40,000
Maps Profit Sharing Plan & Trust FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D. 160,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 40,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ as Cust. FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 40,000
Silver, ▇▇▇▇▇▇ 52,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 15,000
▇▇▇▇▇. ▇▇▇▇, Trustee of the ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust 10,000
HRJ Trust u/w FB0 ▇▇▇▇ ▇▇▇▇▇ 13,333
SPEC Investments 160,000
▇▇▇▇▇▇▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 20,000
▇▇▇▇▇▇▇▇▇, ▇▇▇ 9,995
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. 20,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.. Trustee, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1999 Irrevocable Trust 100,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 149,924
▇▇▇▇ Partners 20,000
WWF & Co. 759,876
▇▇▇▇▇▇, ▇▇▇▇ ▇. & ▇▇▇▇▇ ▇. 16,000
▇▇▇▇▇▇, ▇▇▇▇ 4,000
TOTAL COMMON STOCK 13,260,491
2. Series A Preferred Stock. (as a result of the 4-for-1 stock split on December
31, 1998, and the one-time anti-dilution adjustment pursuant to the Certificate
of Designation for the Series A Preferred Stock, each share of Series A
Preferred Stock is now convertible into 5.3 shares of common stock. On May 8,
2001, the Series A Preferred Stock holders converted half of their certificated
Series A Preferred Stock into common stock.)
NAME TOTAL SHARES
-------------------------------------------------------------------------------------------------------- ------------
Norwest Equity Partners V 452,830
▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors - Fund XI 22,641
▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,886
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,886
TOTAL SERIES A 479,243
3. Series B Preferred Stock. (as a result of the 4-for-1 stock split on December
31. 1995, each share of Series B Preferred Stock is now convertible into 4
shares of common stock)
NAME TOTAL SHARES
-------------------------------------------------------------------------------------------------------- ------------
Norwest Equity Partners V 699,000
Norwest Equity Partners VI 200,000
Antares Capital Corporation 50,000
Minnesota Private Equity Fund 32,000
3.2-2
NAME TOTAL SHARES
-------------------------------------------------------------------------------------------------------- ------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors - Fund XI 15,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,250
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. as Custodian FBO ▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,250
▇▇▇▇ ▇. ▇▇▇▇ 1,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ 500
TOTAL SERIES B 1,000,000
4. Series C Preferred Stock.
NAME TOTAL SHARES
-------------------------------------------------------------------------------------------------------- ------------
APAX Excelsior VI, L.P. 2,991,969
Norwest Equity Partners VII, L.P. 1,000,000
APAX Excelsior VI-A C.V. 244,548
APAX Excelsior VI-B C.V. 163,033
Patricof Private Investment Club III, L.P. 100,450
TOTAL SERIES C 4,500,000
B. Options. (adjusted for the December 31, 1998 stock split as converted)
NAME NUMBER OF OPTION SHARES EXERCISE PRICE
------------------------ ----------------------- --------------
▇▇▇▇▇▇, ▇▇▇▇▇▇ 1,060,000 $.75-$4.00
Benz, ▇▇▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 52,000 $1.25 - $8.00
Bullion, ▇▇▇▇ ▇. 32,000 $.75-$1.67
▇▇▇▇▇, ▇▇▇▇▇ ▇. 5,000 $8.00
Busklein, Morten 4,000 $8.00
▇▇▇▇, ▇▇▇▇ ▇. 40,000 $4.00
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 10,000 $4.00 - $8.00
▇▇▇▇▇▇, ▇▇▇▇ ▇. 1,000 $8.00
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 10,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 12,000 $1.67
▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇ 12,000 $1.67
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. 11,000 $3.00-$8.00
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ 21,000 $1.25 - $8.00
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 3,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 8,000 $3.00
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 5,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 89,000 $1.25 - $8.00
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. 26,000 $1.66 - $8.00
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 10,000 $1.67 - $8.00
▇▇▇▇, ▇▇▇▇▇▇ ▇. 20,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇ ▇. 11,000 $3.00 - $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 16,000 $3.00 - $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 11,000 $3.00 - $8.00
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 26,000 $ 1.25 - $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 5,000 $3.00 - $8.00
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 3,000 $3.00 - $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 60,000 $1.50 - $8.00
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 5,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇ ▇. 22,000 $1.25-$8.00
▇▇▇▇▇, ▇▇▇▇▇ ▇. 20,000 $8.00
▇▇▇▇▇, Cam H. 1,500 $8.00
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 7,500 $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 6,000 $4.00
3.2-3
NAME NUMBER OF OPTION SHARES EXERCISE PRICE
------------------------ ----------------------- --------------
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 204,000 $1.50 - $4.00
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 10,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 8,000 $8.00
▇▇▇▇, ▇▇▇▇▇▇ ▇. 12,000 $1.67 - $8.00
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. 18,000 $ 1.25 - $8.00
▇▇▇▇, ▇▇▇▇ ▇. 12,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., ▇▇. 138,000 $1.67 - $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 12,000 $1.67
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 5,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 48,000 $1.25 -$1.67
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 40,000 $3.00 - $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 13,000 $3.00 - $8.00
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇, ▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇▇, ▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 2,000 $8.00
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 3,000 $8.00
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 28,000 $8.00
▇▇▇▇▇▇, ▇▇▇▇ ▇. 60,000 $1.25 - $8.00
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 17,000 $3.00 - $8.00
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. 40,000 $4.00
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 2,000 $8.00
TOTAL OPTION SHARES
GRANTED BY THE COMPANY 2,315,000
*Pursuant to that Employment Agreement, dated July 9, 2001, by and between the
Company and ▇▇▇▇▇ ▇▇▇▇▇, the Company is committed to grant 300,000 option shares
at a price per share yet to be determined upon the approval of such grant by the
Board of Directors of the Company.
C. Warrants. (adjusted for the December 31, 1998 stock split as converted)
NAME NUMBER OF WARRANT SHARES COMMENCEMENT
----------------------------- ------------------------ -----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ 284 January 1, 2004 if (i) Series B Preferred
Antares Capital Corporation 28,572 Stock has been mandatorily converted, and
Minnesota Private Equity Fund 18,284 (ii) Company fails to achieve after tax
▇▇▇▇ ▇. ▇▇▇▇ 572 operating income of at least $1.185 per
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,432 share for the year ending December 31,
Norwest Equity Partners V 399,428 2003
Norwest Equity Partners VI 114,284
▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors - XI 8,572
TOTAL WARRANT SHARES 571,428
D. Subsidiaries.
1. LIFE TIME KIDS, Inc. - The Company is the sole shareholder of LIFE TIME
KIDS, Inc., a Minnesota corporation.
2. FCA Real Estate Holdings, LLC - The Company is the sole owner of FCA
Real Estate Holdings, LLC, a Delaware limited liability Company.
3. FCA Construction Holdings, LLC - The Company is the sole owner of FCA
Construction Holdings, LLC, a Delaware limited liability company.
4. FCA Restaurant Holdings, LLC - The Company is the sole owner of FCA
Restaurant Holdings, LLC, a Delaware limited liability company.
3.2-4
5. LTF Real Estate Holdings, LLC - The Company is the sole owner of LTF
Real Estate Holdings, LLC, a Delaware limited liability company.
6. LTF Michigan Real Estate, LLC - LTF Real Estate Holdings, LLC is the
sole owner of LTF Michigan Real Estate, LLC, a Delaware limited
liability company.
7. LTF Minnesota Real Estate, LLC - LTF Real Estate Holdings, LLC is the
sole owner of LTF Minnesota Real Estate, LLC, a Delaware limited
liability company.
8. LTF USA Real Estate, LLC - LTF Real Estate Holdings, LLC is the sole
owner of LTF USA Real Estate, LLC, a Delaware limited liability
company.
9. Bloomingdale LIFE TIME Fitness, L.L.C. - The Company has a 33.3%
interest in Bloomingdale LIFE TIME Fitness, L.L.C., an Illinois limited
liability company.
3.2-5
SECTION 3.5
LITIGATION
None.
SCHEDULE 3.7
QUALIFIED BENEFIT PLANS
The following is a listing of all qualified benefit plans entered into or
adopted by the Company:
1. FCA, Ltd. 1996 Stock Option Plan
2. FCA, Ltd. 401(k) Plan
3. Cafeteria Plan
4. LIFE TIME FITNESS, Inc. 1998 Stock Option Plan
SCHEDULE 3.9
OWNED AND LEASED PROPERTY
NAME AND ADDRESS OF PROPERTY LEASED OR OWNED
----------------------------------------------------------------------------------- ---------------
LIFE TIME FITNESS Corporate Office Leased
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hennepin County
PIN: 01-116-22-24-0046 through 0056
Legal: ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
CONDOMINIUM, Hennepin County, Minnesota.
Record Owner: Massachusetts Mutual Life Insurance Company
LIFETIME FITNESS of Brooklyn Park Leased
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Hennepin County
PIN: 20-119-21-34-0002
Legal: Part of the Southeast 1/4 of the Southwest 1/4 of Section 20, Township 119
North Range 21, West of the 5th Principal Meridian, Hennepin County, Minnesota.
Record Owner: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dba Northwind Plaza
LIFE TIME FITNESS of Eagan Owned
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dakota County
PIN: 10-65826-010-01
Legal: ▇▇▇ ▇, ▇▇▇▇▇ ▇, Life Time Fitness Addition and ▇▇▇ ▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Record Owner: LTF Minnesota Real Estate, LLC
LIFE TIME FITNESS of Woodbury Leased
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PIN: 04-028-21-42-0143
Legal: ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Third Addition, Washington County,
Minnesota.
Record Owner: ATR Investments, Inc.
LIFE TIME FITNESS of Roseville for Women Leased
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ County
PIN: 09-29-23-13-0034
Legal: That part of the West 15 acres of the North half of the Southwest 1/4 of
the Northeast 1/4 of Section ▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Record Owner: TANURB (Rosedale Commons), Inc.
LIFE TIME FITNESS of Highland Park Leased
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ County
3.9.1
NAME AND ADDRESS OF PROPERTY LEASED OR OWNED
----------------------------------------------------------------------------------- ---------------
PIN: 17-28-23-1 1-0069
Legal: ▇▇▇▇ ▇▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇.
Record Owner: 2145 LLP
LIFE TIME FITNESS of ▇▇▇▇ Rapids Leased
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Anoka County
PIN: 15-31-24-21-006,008,009
Legal: That part of the Northeast 1/4 of the Northwest 1/4 of Section ▇▇,
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Record Owner: Village Ten LLC
LIFE TIME FITNESS of Bloomington Owned
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hennepin County
PIN: 06-027-24-32-0015
Legal: ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Record Owner: FCA Real Estate Holdings, LLC
LIFE TIME FITNESS of Plymouth Leased
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hennepin County
PIN: 16-118-22-34-0016
Legal: ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Record Owner: City of Plymouth
LIFE TIME FITNESS of Saint ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ County
PIN: 06-28-22-12-0054
Legal: ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇.
Record Owner: Capital City Ventures, LLC
LIFE TIME FITNESS of Troy Owned
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Oakland County
PIN: ▇▇-▇▇-▇▇▇-▇▇▇
Legal: A part of the Northeast 1/4 of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇ of ▇▇▇▇, Oakland County, Michigan
Record Owner: LTF Michigan Real Estate, LLC
LIFE TIME FITNESS Express of Apple Valley Leased
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ West, Suite 107-108
Apple Valley, MN 55124
Dakota County
3.9-2
NAME AND ADDRESS OF PROPERTY LEASED OR OWNED
----------------------------------------------------------------------------------- ---------------
PIN: N/A
Legal: ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ in the City of Apple Valley.
Dakota County, Minnesota.
Record Owner: ▇▇▇▇▇▇▇▇ Properties, LLC
LIFE TIME FITNESS of Columbus Owned
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Franklin County
PIN: 010-243435
Legal: State of Ohio, County of Franklin, City of Columbus, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Military Lands Parcel 9
Record Owner: Easton Town Center, LLC
LIFE TIME FITNESS of Indianapolis Owned
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ County
PIN: 400-4003743
Legal: A part of the Southwest Quarter of Section 15, Township 17 North, Range 4
East, ▇▇▇▇▇▇ County, Indiana
Record Owner: LTF USA Real Estate, LLC
LIFE TIME FITNESS of Novi Owned
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Oakland County
PIN: ▇▇-▇▇-▇▇▇-▇▇▇
Legal: A part of the Northeast 1/4 of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇▇ of Novi, Oakland County, Michigan
Record Owner: LTF Michigan Real Estate, LLC
LIFE TIME FITNESS of Centreville Owned
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PIN: 054-3-21-0003 and 054-3-21-0004
Legal: Parcel A and Parcel 3-A, Trinity Centre
Record Owner: LTF USA Real Estate, LLC
LIFE TIME FITNESS of Shelby Township Owned
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Macomb County
PIN: 50-07-036-034-10 and 50-07-036-034-00
Legal: Land in the Southeast 1/4 of Section 36, Town 3 North. Range ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Record Owner: LTF Michigan Real Estate, LLC
Minneapolis LIFE TIME Athletic Club (Athletic Space and Restaurant Space) Leased
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hennepin County
3.9-3
NAME AND ADDRESS OF PROPERTY LEASED OR OWNED
----------------------------------------------------------------------------------- --------------------------
PIN: 27-029-24-11-0032 and 27-029-24-11-0033
Legal: That part of ▇▇▇▇ ▇, ▇, ▇, ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇' Addition to
Minneapolis, Hennepin County, Minnesota.
Record Owner: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Investors Company
LIFE TIME FITNESS Schaumburg Owned
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
PIN: 07-14-400-008-0000 and 07-14-401-001-0000
Legal: That portion of the Southeast 1/4 of Section 14, Township 41 North, Range
10, East of the Third Principal Meridian, in ▇▇▇▇ County, Illinois
Record Owner: LTF USA Real Estate, LLC
LIFE TIME FITNESS Bloomingdale Owned
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (through joint venture LLC)
▇▇▇▇▇▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇
DuPage County
PIN: ▇▇-▇▇-▇▇▇-▇▇▇
Legal: Lot 1 in ▇▇▇▇▇▇▇▇▇ Corporate Center Resubdivision, being a resubdivision
of Lots 28, 29, 32 and 33, together with the former right of way of ▇▇▇▇▇ Court,
in ▇▇▇▇▇▇▇▇▇ Corporate Center, being a subdivision in the North 1/2 of Section
20, Township 40 North, Range 10, East of the third principal meridian, DuPage
County, Illinois Record Owner: Bloomingdale LIFE TIME Fitness, L.L.C.
LIFE TIME FITNESS Warrenville Owned
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DuPage County
PIN: ▇▇-▇▇-▇▇▇-▇▇▇ and ▇▇-▇▇-▇▇▇-▇▇▇
Legal: Those parts of the Southwest 1/4 of Section 1 and the Southeast -1/4 of
Section 2, all in Township 38 North, Range 9 East of the Third Principal Meridian, DuPage
County, Illinois
Record Owner: LTF USA Real Estate, LLC
LIFE TIME FITNESS Orland Park Owned
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ County
PIN: ▇▇-▇▇-▇▇▇-▇▇▇ and ▇▇-▇▇-▇▇▇-▇▇▇
Legal: The North 20 acres of the West 1/2 of the Southwest 1/4 (except the
West 17 feet of the East 50 feet of the North 20 acres) in Section 22, Township
36 North, Range ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Record Owner: FCA Real Estate Holdings, LLC
LIFE TIME FITNESS Algonquin Owned
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3.9-4
NAME AND ADDRESS OF PROPERTY LEASED OR OWNED
----------------------------------------------------------------------------------- ---------------
PIN: ▇▇-▇▇-▇▇▇-▇▇▇ and ▇▇-▇▇-▇▇▇-▇▇▇
Legal: ▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Record Owner: FCA Real Estate Holdings, LLC
LIFE TIME FITNESS ▇▇▇▇ Ridge Owned
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇. ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
PIN: Part of ▇▇-▇▇-▇▇▇-▇▇▇
Legal: That part of the West 1/2 of Section 30, Township 38 North, Range ▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
Record Owner: FCA Real Estate Holdings, LLC
LIFE TIME FITNESS Skokie Owned
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ County
PIN: ▇▇-▇▇-▇▇▇-▇▇▇ and part of ▇▇-▇▇-▇▇▇-▇▇▇
Legal: Lot 2 in Portland Cement Association Subdivision of that part of the
Northwest Fractional 1/4 of Section 9, Township 41 North, Range ▇▇ ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
Record Owner: FCA Real Estate Holdings, LLC
LIFE TIME FITNESS Canton Township Owned
▇▇▇▇▇▇▇▇ Road
Canton Township, MI
▇▇▇▇▇ County
PIN: Part of 050-99-0013-000 and part of 050-99-0015-000
Legal: ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Condominium.
Record Owner: FCA Real Estate Holdings, LLC
LIFE TIME FITNESS Fairfax Leased
▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PIN: N/A
Legal: N/A
Record Owner: Fair City HHH, LLC
LIFE TIME FITNESS of Champlin Leased
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hennepin County
PIN: N/A
Legal: N/A
Record Owner: Champlin Economic Development Authority
LIFE TIME FITNESS of Savage Leased
County Roads 27 and 42
Savage, MN
Dakota County
3.9-5
NAME AND ADDRESS OF PROPERTY LEASED OR OWNED
---------------------------------------------------------------------- ---------------
PIN: N/A
Legal: N/A
Record Owner: City of Savage
LIFE TIME FITNESS of Orland Park (Temporary Pre-Sale Space) Leased
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PIN: N/A
Legal: N/A
Record Owner: Simon Property Group, L.P.
LIFE TIME FITNESS of ▇▇▇▇ Ridge (Temporary Pre-Sale Space) Leased
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PIN: N/A
Legal: N/A
Record Owner: ▇▇▇▇ ▇▇▇▇▇▇ Bank, as Trustee under Trust Agreement dated
December 1, 1999, and known as Trust No. 95-2107
3.9-6
SCHEDULE 3.17
INTELLECTUAL PROPERTY
Trademarks and Service Marks. LIFE TIME FITNESS, Inc. has the following
trademarks and service marks issued or pending with the United States Patent and
Trademark Office:
1. MULTIVISION FREQUEN-SEES.
Services: Audio and video rebroadcasting to patrons of health
clubs.
Registered 2,077,538, July 8, 1997.
2. LIFETIME FITNESS.
Services: Health club services.
Registered 2,140,172, March 3, 1998.
3. LIFE TIME FITNESS AND DESIGN.
Services: Health club services.
Registered 2,199,734, October 27, 1998.
4. LIFE TIME KIDS.
Services: Entertainment and education services, namely.
classes in fields of physical fitness, creative dance,
tumbling, movement. and self-esteem building and providing
recreation facilities with computers and play areas for
children.
Registered 2,128,353, January 13, 1998.
5. LIFE TIME SPORTS.
Services: Health club services.
Registered 2,255,837, June 22, 1999.
6. LIFETIME FITNESS HEALTH ENHANCEMENT SERIES.
Services: Health and fitness videos.
Registered 2,416,503, December 26, 2000.
7. MASTER YOUR METABOLISM.
Services: Health and fitness videos.
Registered 2,400,952, October 31, 2000.
8. LIFE TIME FITNESS EXPRESS.
Services: Health club services.
Registered 2,436,338, March 30, 2001.
9. MINNEAPOLIS LIFE TIME ATHLETIC CLUB.
Services: Health club services.
Registered 2,413,208, December 12, 2000.
10. MEMBER ADVANTAGE LIFE TIME FITNESS.
Services: Providing member benefits to members of a health
club.
Registered 2,415,579, December 26, 2000.
3.17-1
11. LOVE LIFE.
Services: Health club services.
Registered 2,385,717, dated September 12, 2000.
12. NUTRIFIT.
Services: Educational services in the nature of classes
dealing with fitness and nutrition.
Pending. Serial No. 75/823,513, filed October 15, 1999.
Filed First Extension March 5, 2001.
This application was filed on an "intent-to-use" basis.
13. EXPERIENCE.
Services: Magazines in the field of health, fitness, and
exercise.
Registered 2,431,813, dated February 27, 2001.
14. REV IT UP.
Services: Charitable fund-raising services offered in
connection with a fitness program in Int. Class 36.
Pending. Notice of Allowance issued April 24, 2001.
This application was filed on an "intent-to-use" basis.
15. CAFE ▇▇▇▇▇ ▇▇▇▇ AND DESIGN.
Services: Restaurant services.
Registered with the State of Minnesota as 30347, September 18,
2000.
16. AVERISOFT.
Services: Computer software programs to assist in health club
membership. database management and computer infrastructure.
Pending. Serial No. 76/251,896, filed May 4, 2001.
17. AVERISOFT AND DESIGN.
Services: Computer software programs to assist in health club
membership, database management and computer infrastructure.
Pending. Serial No. 76/251,894, filed May 4, 2001.
This application was filed on an "intent-to-use" basis.
18. EXPERIENCE LIFE.
Services: Magazines in the field of health, fitness and
exercise.
Pending. Serial No. 76/251,895, filed May 4, 2001.
This application was filed oil an "intent-to-use" basis.
3.17-2
SECTION 3.21(c)
SUBSIDIARY INFORMATION
The following is a list of each of the Company's subsidiaries, its federal tax
identification number ("FEIN") and street address of its chief executive office:
1. Legal Name: LIFE TIME Kids, Inc.
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
2. Legal Name: FCA Real Estate Holdings, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
3. Legal Name: FCA Construction Holdings, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
4. Legal Name: FCA Restaurant Holdings, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
5. Legal Name: Bloomingdale LIFE TIME FITNESS, L.L.C.
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
6. Legal Name: LTF Real Estate Holdings, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7. Legal Name: LTF Michigan Real Estate, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. Legal Name: LTF Minnesota Real Estate, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. Legal Name: LTF USA Real Estate, LLC
FEIN: ▇▇-▇▇▇▇▇▇▇
ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.21(a)-1
SCHEDULE 3.21(b)
EQUIPMENT LOCATIONS
All equipment of the Company and its subsidiaries is located at the properties
described in Schedule 3.9 to this Agreement. All such equipment is leased by the
Company and its Subsidiaries pursuant to various master lease agreements.
3.21(b)-1
SCHEDULE 3.21(c)
BANK ACCOUNTS
The following is a listing of all bank accounts (or accounts with other
financial institutions) maintained by the Company:
BANK ACCOUNT NAME ACCOUNT NO.
----------------------- ----------------------------------------------- -----------------------
American Chartered Bank Life Time Fitness - Schaumburg [intentionally omitted]
American Chartered Bank Life Spa - Schaumburg [intentionally omitted]
Associated Bank Life Time Kids [intentionally omitted]
Associated Bank Life Spa - Indianapolis [intentionally omitted]
Associated Bank Life Spa-Centreville [intentionally omitted]
Associated Bank Life Spa - Columbus [intentionally omitted]
Associated Bank Life Spa - MLTAC [intentionally omitted]
Associated Bank Life Time Fitness - Foundation Account [intentionally omitted]
Associated Bank Life Time Fitness - Life Time Sport [intentionally omitted]
Associated Bank Life Time Fitness - Member Programming [intentionally omitted]
Associated Bank FCA Restaurant holdings - Credit Card Depositor [intentionally omitted]
Associated Bank FCA Restaurant Holdings - Expense Account [intentionally omitted]
Associated Bank Life Time Fitness - Medical Insurance [intentionally omitted]
Associated Bank Life Time Fitness - Main Checking [intentionally omitted]
Associated Bank Life Time Fitness - Health Enhancements [intentionally omitted]
Associated Bank Life Time Fitness - Eagan [intentionally omitted]
Associated Bank Life Time Fitness - Woodbury [intentionally omitted]
Associated Bank Life Time Fitness - Roseville [intentionally omitted]
Associated Bank Life Time Fitness - Highland Park [intentionally omitted]
Associated Bank Life Time Fitness - ▇▇▇▇ Rapids [intentionally omitted]
Associated Bank Life Time Fitness - Bloomington [intentionally omitted]
Associated Bank Life Time Fitness - Plymouth [intentionally omitted]
Associated Bank Life Time Fitness - St. ▇▇▇▇ [intentionally omitted]
Associated Bank Life Time Fitness - ▇▇▇▇ [intentionally omitted]
Associated Bank Life Time Fitness - Columbus [intentionally omitted]
Associated Bank Life Time Fitness - Indianapolis [intentionally omitted]
Associated Bank Life Time Fitness - Shelby [intentionally omitted]
Associated Bank Life Time Fitness - Novi [intentionally omitted]
Associated Bank Life Time Fitness - Multivision [intentionally omitted]
Associated Bank Life Time Fitness - Savings [intentionally omitted]
Associated Bank Life Time Fitness - Apple Valley [intentionally omitted]
Associated Bank Life Time Fitness - MAC [intentionally omitted]
Associated Bank Life Time Fitness - Champlin [intentionally omitted]
Associated Bank Life Time Fitness - Centreville [intentionally omitted]
Associated Bank Life Time Fitness - Payroll Account [intentionally omitted]
Associated Bank Life Time Fitness - CD [intentionally omitted]
Associated Bank Life Time Fitness - Payroll Account [intentionally omitted]
Associated Bank Life Time Fitness - Bloomingdale [intentionally omitted]
Associated Bank Life Time Fitness - Schaumburg [intentionally omitted]
Associated Bank Life Time Fitness - Algonquin [intentionally omitted]
Associated Bank Life Time Fitness - Orland Park [intentionally omitted]
Associated Bank Life Time Fitness - Warrenville [intentionally omitted]
Associated Bank Life Time Fitness - Rochester Hills [intentionally omitted]
Associated Bank Life Time Fitness - Life Spa Division [intentionally omitted]
Associated Bank Life Time Fitness - Health Enhancement Div. [intentionally omitted]
Associated Bank Life Time Fitness - Corporate Service Div. [intentionally omitted]
Associated Bank Life Time Fitness - Marketing Division [intentionally omitted]
Associated Bank Life Time Fitness - Entertainment Division [intentionally omitted]
Associated Bank Life Time Fitness - Real Estate Development [intentionally omitted]
Bank One Life Time Fitness - Novi [intentionally omitted]
Bank One Life Spa - Novi [intentionally omitted]
3.21(c)-1
BANK ACCOUNT NAME ACCOUNT NO.
---------------------------------- ----------------------------------------- -----------------------
Chevy Chase Bank Life Time Fitness - Centreville [intentionally omitted]
First Virginia Bank Life Spa - Centerville [intentionally omitted]
First Virginia Bank Life Time Fitness - Fairfax City [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Cantera [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Bloomingdale [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Orland Park [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Algonquin [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - ▇▇▇▇ Ridge [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Club Expense [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Life Spa Bloomingdale [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Life Spa Cantera [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Time Fitness - Life Spa Algonquin [intentionally omitted]
▇▇▇▇▇▇ ▇▇▇▇▇ Life Spa - Orland Park [intentionally omitted]
Huntington National Bank Life Spa - Indianapolis [intentionally omitted]
Huntington National Bank Life Spa - Columbus [intentionally omitted]
Huntington National Bank Life Time Fitness - Club Expense [intentionally omitted]
Huntington National Bank Life Time Fitness - Columbus [intentionally omitted]
Huntington National Bank Life Time Fitness - Indianapolis [intentionally omitted]
Marquette Bank Life Time Kids - Expense Account [intentionally omitted]
Marquette Bank Life Time Kids - Depository Account [intentionally omitted]
Marquette Bank Life Spa - ▇▇▇▇ Rapids [intentionally omitted]
Midwest Guaranty Bank Life Time Fitness - Troy [intentionally omitted]
Midwest Guaranty Bank Life Time Fitness - Troy Salon [intentionally omitted]
National City Bank Life Time Fitness - Shelby [intentionally omitted]
National City Bank Life Time Fitness, Inc. - Shelby Salon [intentionally omitted]
U.S. Bancorp Investments FCA, Ltd. [intentionally omitted]
U.S. Bank Life Spa- Expense Account [intentionally omitted]
U.S. Bank Life Spa - Plymouth Depository [intentionally omitted]
U.S. Bank Life Spa - MLTAC [intentionally omitted]
U.S. Bank Life Time Fitness - Club Expense [intentionally omitted]
U.S. Bank FCA Restaurant Holdings [intentionally omitted]
U.S. Bank FCA Restaurant Holdings [intentionally omitted]
U.S. Bank FCA Restaurant Holdings [intentionally omitted]
U.S. Bank FCA Real Estate Holdings, LLC [intentionally omitted]
U.S. Bank FCA Real Estate Holdings, LLC [intentionally omitted]
U.S. Bank Life Time Fitness - MN Depository [intentionally omitted]
U.S. Bank MLTAC Concierge Services [intentionally omitted]
U.S. Bank MLTAC Depository Account [intentionally omitted]
U.S. Bank FCA Construction Holdings [intentionally omitted]
U.S. Bank Corporate Trust Services Life Time Fitness Collateral Escrow [intentionally omitted]
3.21(c)-2
SCHEDULE 3.23
MATERIAL CONTRACTS
The following is a listing of all material contracts and Contractual
Obligations, whether written and oral, to which the Company or its Subsidiaries
are a party or which binds them:
1. Purchase Agreement, dated December 15, 1999, by and among FCA Real
Estate Holdings, LLC, the Company, and Rochester Hills Tennis & Swim
Club, Inc., for real and personal property located in Rochester Hills,
Michigan.
2. Tenth Amendment to Purchase Agreement, dated June 21, 2001, by and
between FCA Real Estate Holdings, LLC and Emerald Holdings, LLC for
real property located in Tempe, Arizona.
3. Management Agreement of Bloomingdale LIFE TIME Fitness, L.L.C., dated
December 1, 1999, by and between LIFE TIME FITNESS, Inc., Bloomingdale
Sport Center Land Company, and Central DuPage Health Fitness Center.
4. Real property leases and subleases for the facilities listed on
Schedule 3.9.
5. Employment Agreement by and between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
dated May 8, 1996, as amended by First Amendment to Employment
Agreement, dated December 8, 1998.
6. Employment Agreement by and between the Company and ▇▇▇▇▇ ▇▇▇▇▇, dated
July 9, 2001.
7. Mortgage loan obligations arising from mortgage loan junior credit
facility between U.S. Bank National Association, as Agent, and FCA Real
Estate Holdings, LLC.
8. Mortgage loan obligations arising from mortgage loans made by Teachers
Insurance and Annuity Association of America to LTF Michigan Real
Estate, LLC, LTF Minnesota Real Estate, LLC and LTF USA Real Estate,
LLC.
9. Capital lease obligations arising from equipment financing facility
between Carlton Financial Corporation and the Company.
10. Computer and telecommunications equipment lease obligations arising
from computer and telecommunications financing agreement between Farnam
Street Financial and the Company.
11. Computer equipment lease obligations arising from computer equipment
financing agreement between Dell Financial Services, Inc. and the
Company.
12. Property Referral, Assignment and Nondisclosure Agreement, dated April
23, 1998, between the Company and 24 Hour Fitness Inc.
3.23-1
13. The Company has entered into several consulting agreements with various
consulting firms and consultants for the temporary use of certain
computer, accounting and health professional consultants.
14. FCA, Ltd. 1996 Stock Option Plan
15. FCA, Ltd. 401(k) Plan
16. Cafeteria Plan
17. LIFE TIME FITNESS, Inc. 1998 Stock Option Plan
18. Operating Agreement of LIFE TIME, BSC Land, DuPage Health Services
Fitness Center-Bloomingdale, L.L.C., dated December 1, 1999, by and
among LIFE TIME FITNESS, Inc., Bloomingdale Sports Center Land Company,
and Central DuPage Health.
3.23-2
SCHEDULE 4.6
INSURANCE
The following is a listing of all insurance policies in force:
DESCRIPTION LIMIT INSURANCE COMPANY
--------------------------------- ----------------------- -------------------------------
Package Policy St. ▇▇▇▇ Fire & Marine Ins. Co.
Property $ 182,214,500*
Inland Marine $ 1,430,000
General Liability $ 1,000,000/$2,000,000
Business Income $ 9,979,500
Crime Insurance $ 100,000
Flood and Earthquake $ 5,000,000
Auto Liability $ 1,000,000
Umbrella Liability $ 10,000,000 Federal Insurance Companies
Boiler and Machinery $ 25,000,000 Travelers Insurance Company
Workers' Compensation Statutory EBI Companies
Liquor Liability $ 1,000,000 St. ▇▇▇▇ Fire & Marine Ins. Co.
Professional Liability $ 2,000,000 RLI Insurance Company
Directors and Officers Liability $ 1,000,000 Federal Insurance Company
Life Insurance - ▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 5,000,000 Lincoln Benefit Life
Life Insurance - ▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 1,000,000 American Family
*The current Property is $127,989,500, but this coverage will increase to
$182,214,500 as of July 31, 2001.
Each policy referenced above, except for the Life Insurance policies on ▇▇▇▇▇▇
▇▇▇▇▇▇, is evidenced by the attached Evidences of Property Insurance and
Certificate of Liability Insurance.
4.6-1
SCHEDULE 5.1
LIENS
A. UCC FILINGS.
Secured Party: Riverside Bank
Debtor: LIFE TIME KIDS, Inc.
Filing Information: Filed with MN Secretary of State as No. 1838219, dated April 8, 1996.
Continuation: Filed with MN Secretary of State as No. 2276373, dated November 20, 2000.
Collateral: Blanket.
Secured Party: U.S. Bank National Association
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 1865189, dated July 19, 1996.
Partial Release: Filed with MN Secretary of State as No. 1994022, dated December 5, 1997, releasing interest in
personal property arising from Debtor's business operations on Premises.
Amendment: Filed with MN Secretary of State as No. 2114868, dated March 18, 1999, amending names of Debtor
and Secured Party.
Continuation: Filed with MN Secretary of State as No. 2332066, dated May 7, 2001.
Amendment: Filed with MN Secretary of State as No. 2332067, dated May 7, 2001, amending the name and
address of the Secured Party.
Collateral: All furniture, fixtures, furnishings, equipment, machinery and personal property of Debtor located at
the Debtor's Plymouth, MN premises.
Secured Party: Richfield Bank & Trust, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. dba Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 1897739, dated December 2, 1996.
Collateral: Specific exercise and related equipment
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. dba Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 1897740, dated December 2, 1996.
Collateral: Specific exercise and related equipment as well as specific leasehold improvements.
Secured Party: Richfield Bank & Trust, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. dba Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 1905241, dated January 2, 1997.
Collateral: Specific furniture and equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: FCA, LTD. DBA Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 1921894, dated March 5, 1997.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: FCA, LTD. DBA Life Time Fitness
File Number: Filed with MN Secretary of State as No. 1921895, dated March 5, 1997.
Collateral: Specific exercise and related equipment.
Secured Party: Community First Financial, Inc., as assigned by Carlton Financial Corporation
Debtor: FCA, LTD, DBA: Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 1963556, dated August 6, 1997.
Collateral: Specific exercise and related equipment.
Secured Party: Community First Financial, Inc., as assigned by Carlton Financial Corporation
Debtor: FCA, LTD, DBA: Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 1963557, dated August 6, 1997.
Collateral: Specific exercise and related equipment.
5.1-1
Secured Party: U.S. Bank National Association, as Collateral Agent
Debtor: FCA Real Estate Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 1963533, dated August 6, 1997.
Assignment: Filed with MN Secretary of State as No. 2249493. dated August 7, 2000,
assigning the security interest to the Secured Party listed above.
Amendment: Filed with MN Secretary of State as No. 2278054, dated November 28, 2000, amending the Eagan,
MN legal description attached as Exhibit B.
Partial Release: Filed with MN Secretary of State as No. 2338881, dated June 4, 2001, releasing the security interest
of the Secured Party in the real property located in Woodbury, MN.
Partial Release: Filed with MN Secretary of State as No. ___, dated ________, 2001, releasing the security interest
of the Secured Party in the real property located in Eagan, MN.
Collateral: All furniture, furnishings, equipment, machinery and personal property affixed to the Debtor's
Bloomington, MN premises.
Secured Party: Antares Capital Corporation, as agent
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 1992045, dated November 26, 1997.
Amendment: Filed with MN Secretary of State as No. 2178095, dated November 16, 1999, amending the names
of the Debtor and Secured Party.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as agent
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 1992046, dated November 26, 1997.
Amendment: Filed with MN Secretary of State as No. 2178094, dated November 16, 1999, amending
names of the Debtor and Secured Party.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as agent
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with Dakota County, MN as No. 273426, dated November 26, 1997.
Amendment: Filed with Dakota County, MN as No. 281142, dated November 17, 1999, amending the
names of the Debtor and Secured Party.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as agent
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with Hennepin County, MN as No. 1129614, dated November 26, 1997.
Amendment: Filed with Hennepin County, MN as No. 1141773, dated November 17, 1999, amending names of
the Debtor and Secured Party.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as agent
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with Washington County, MN as No. 0178574, dated December 1, 1997.
Amendment: Filed with Washington County, MN as No. 0182449, dated November 23, 1999, amending the
names of the Debtor and Secured Party as reflected above.
Collateral: Blanket.
Secured Party: Community First Financial, Inc., as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. dba Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 1993174, dated December 3, 1997.
Collateral: Specific exercise and related equipment.
Secured Party: The Oakley National Bank of Buffalo, as assigned by First State Bank of Excelsior, as assigned
by Carlton Financial Corporation
Debtor: FCA, Ltd. dba Lifetime Fitness
File Number: Filed with MN Secretary of State as No. 2002296, dated January 8, 1998.
Assignment: Filed with MN Secretary of State as No. 2018347, dated March 9, 1998, assigning security interest
of First State Bank of Excelsior to The Oakley National Bank of Buffalo.
Collateral: Specific exercise and related equipment.
5.1-2
Secured Party: The Oakley National Bank of Buffalo, as assigned by First State Bank of Excelsior, as assigned by
Carlton Financial Corporation
Debtor: FCA. Ltd. dba Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2002297, dated January 8, 1998.
Assignment: Filed with MN Secretary of State as No. 2018348, dated March 9, 1998, assigning security interest
of First State Bank of Excelsior to The Oakley National Bank of Buffalo.
Collateral: Specific exercise and related equipment.
Secured Party: State Bank of Chanhassen, as assigned by Carlton Financial Corporation
Debtor: FCA, LTD dba Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2034371, dated May 4, 1998.
Collateral: Specific equipment.
Secured Party: The Highland Banks, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2065636, dated September 2, 1998.
Collateral: Specific equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: FCA, LTD. and LIFE TIME FITNESS
Filing Information: Filed with MN Secretary of State as No. 2068422, dated September 15, 1998.
Collateral: Specific leased computer equipment.
Secured Party: The Highland Bank, as assigned by Carlton Financial Corporation
Debtor: FCA. Ltd. d/b/a Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2074837, dated October 9, 1998.
Collateral: Specific exercise and related equipment.
Secured Party: Hampton Bank, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. dba Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2075680, dated October 13, 1998.
Collateral: Specific exercise and related equipment.
Secured Party: Community First Financial, Inc., as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2075681, dated October 13, 1998.
Collateral: Specific exercise and related equipment.
Secured Party: Community First Financial, Inc., as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2075682, dated October 13, 1998.
Collateral: Specific exercise and related equipment.
Secured Party: State Bank of Chanhassen, as assigned by Carlton Financial Corporation
Debtor: FCA. Ltd. d/b/a Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2075689, dated October 13, 1998.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Home Federal Savings Bank, as assigned by Carlton
Financial Corporation
Debtor: FCA, Ltd. dba Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2096004, dated January 6, 1999.
Assignment: Filed with MN Secretary of State as No. 2106833, dated February 16, 1999, assigning security
interest of Home Federal Savings Bank to Richfield Bank & Trust Co.
Collateral: Specific exercise equipment.
Secured Party: BNC National Bank, as assigned by Carlton Financial Corporation
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2096006, dated January 6, 1999.
Amendment: Filed with MN Secretary of State as No. 2313321, dated April 5, 2001, amending the name of the
5.1-3
Debtor to the above.
Collateral: Specific exercise and related equipment.
Secured Party: BNC National Bank, as assigned by Carlton Financial Corporation
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2096007, dated January 6, 1999.
Amendment: Filed with MN Secretary of State as No. 2313321, dated April 5, 2001, amending the name of the
Debtor to the above.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Hampton Bank, as assigned by Carlton Financial
Corporation
Debtor: FCA, Ltd. d/b/a Lifetime Fitness
Filing Information: Filed with MN Secretary of State as No. 2096015, dated January 6, 1999.
Assignment: Filed with MN Secretary of State as No. 2106832, dated February 16, 1999, assigning security
interest of Hampton Bank to Richfield Bank & Trust Co.
Collateral: Specific exercise and related equipment.
Secured Party: U.S. Bank National Association, as Collateral Agent
Debtor: FCA Real Estate Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2111865, dated March 8, 1999.
Amendment: Filed with MN Secretary of State as No. 2293567, dated January 23, 2001, amending the legal
description contained in Exhibit B.
Collateral: All furniture, furnishings, equipment, machinery and personal property affixed to the Debtor's
Columbus, OH premises.
Secured Party: U.S. Bank National Association, as Administrative Bank
Debtor: FCA Construction Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2111866, dated March 8, 1999.
Collateral: All of Debtor's right, title and interest in all subcontracts, purchase orders and other agreements
related to the construction contract dated June 11, 998 with FCA Real Estate Holdings, LLC.
Secured Party: Cherokee State Bank, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 2119339, dated April 5, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: State Bank of Chanhassen, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 2119345, dated April 5, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Highland Banks, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 2119346, dated April 5, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 2121919, dated April 13, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust, as assigned by Carlton Financial Corporation
Debtor: FCA, Ltd. d/b/a Life Time Fitness
Filing Information: Filed with MN Secretary of State as No. 2121920, dated April 13, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Lakeland National Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2127626, dated May 3, 1999.
Collateral: Specific exercise and related equipment.
5.1-4
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2142900, dated June 28, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: State Bank of Chanhassen, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2142901, dated June 28, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Community First Financial, Inc., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2142902, dated June 28, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Lakeland National Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2142903, dated June 28, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2142906, dated June 28, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2142907, dated June 28, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2159393, dated September 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2159394, dated September 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2159395, dated September 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2159396, dated September 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2159397, dated September 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2159398, dated September 1, 1999.
Collateral: Specific exercise and related equipment.
5.1-5
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2163726, dated September 15, 1999.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: FCA, LTD. DBA LIFE TIME FITNESS
Filing Information: Filed with MN Secretary of State as No. 2163729, dated September 20, 1999.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: FCA, LTD. DBA LIFE TIME FITNESS
Filing Information: Filed with MN Secretary of State as No. 2164662, dated September 23, 1999.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2165911, dated September 29, 1999.
Collateral: Specific leased computer equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2167251, dated October 4, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2167252, dated October 4, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2167253, dated October 4, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2167254, dated October 4, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2167255, dated October 4, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2167256, dated October 4, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2174209, dated November 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2174210, dated November 1, 1999.
Collateral: Specific exercise and related equipment.
5.1-6
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2174211, dated November 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2174212, dated November 1, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2177169, dated November 12, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with Hennepin County, MN as No. 1141708, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with ▇▇▇▇▇▇ County, MN as No. 9902334, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with IN Secretary of State as No. 2290175, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with Franklin County, OH as No. 199911150284575, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with Dakota County, MN as No. 281109, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MI Secretary of State as No. D587333, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with OH Secretary of State as No. AP0194854, dated November 15, 1999.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with Washington County, MN as No. 0182407, dated November 16, 1999.
Collateral: Blanket.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2181865, dated December 2, 1999.
Collateral: Specific exercise and related equipment.
5.1-7
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2181866, dated December 2, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2181867, dated December 2, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2181868, dated December 2, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS INC.
Filing Information: Filed with MN Secretary of State as No. 2186884, dated December 21, 1999.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2187768, dated December 27, 1999.
Collateral: Specific leased computer equipment.
Secured Party: Antares Capital Corporation, as Agent
Debtor: FCA Restaurant Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2189086, dated December 29, 1999 (part one of two).
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: FCA Restaurant Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2189087, dated December 29, 1999 (part two of two).
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: FCA Restaurant Holdings, LLC
Filing Information: Filed with Hennepin County, MN as No. 1142484, dated December 30, 1999 (part one of two).
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: FCA Restaurant Holdings, LLC
Filing Information: Filed with Hennepin County, MN as No. 1142485, dated December 30, 1999 (part two of two).
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with Anoka County, MN as No. 0254496, dated December 30, 1999.
Collateral: Blanket.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2189415, dated December 30, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2189416, dated December 30, 1999.
Collateral: Specific exercise and related equipment.
5.1-8
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2189417, dated December 30, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: The National City Bank of Evansville, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2189418, dated December 30, 1999.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2191511, dated January 6, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2195268, dated, January 21, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2198279, dated February 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2198280, dated February 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2198281, dated February 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Rosemount National Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2198282, dated February 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Rosemount National Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2198283, dated February 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS
Filing Information: Filed with MN Secretary of State as No. 2201513, dated February 14, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Community First Financial, Inc.
Debtor: Lifetime Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2202923, dated February 17, 2000.
Collateral: Specific office equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2205711, dated February 29, 2000.
Collateral: Specific leased computer equipment.
5.1-9
Secured Party: First Commercial Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2206458, dated March 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2206461, dated March 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2206462, dated March 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2206493, dated March 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2206499, dated March 2, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2210877, dated March 16, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services. L.P.
Debtor: LIFE TIME FITNESS, INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2215022, dated March 31, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215925, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215926, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215927, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Western National Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215928, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Highland Bank St. ▇▇▇▇, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215929, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
5.1-10
Secured Party: Highland Bank St. ▇▇▇▇, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215930, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Highland Bank St. ▇▇▇▇, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2215931, dated April 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2224571, dated May 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: United Prairie Bank Madison, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2224572, dated May 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Home Federal Savings Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2224573, dated May 3, 2000.
Collateral: Specific exercise equipment.
Secured Party: Merchant Capital Resources, Inc., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2224574, dated May 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2229034, dated May 18, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2229035, dated May 18, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2229036, dated May 18, 2000.
Collateral: Specific leased computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2229037, dated May 18, 2000.
Collateral: Specific leased computer equipment.
Secured Party: The Business Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2231350, dated May 25, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: The Business Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2231351, dated May 25, 2000.
Collateral: Specific exercise and related equipment.
5.1-11
Secured Party: Home Federal Savings Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2240884, dated July 3, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: General Electric Capital Corporation, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2241738, dated July 6, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: General Electric Capital Corporation, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2241739, dated July 6, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Merchants Capital Resources Inc., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2242439, dated July 10, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Merchants Capital Resources Inc., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2242440, dated July 10, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: BCL Capital, as assigned by Loffler Business Systems Inc.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2243862, dated July 17, 2000.
Collateral: Specific office equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2244437, dated July 18, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2247997, dated August 1, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: BCL Capital, as assigned by Loffler
Debtor: Lifetime Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2250293, dated August 9, 2000.
Collateral: Specific office equipment.
Secured Party: U.S. Bank National Association, as Collateral Agent
Debtor: FCA Real Estate Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2249494, dated August 7, 2000.
Amendment: Filed with MN Secretary of State as No. 2278055, dated November 28, 2000, amending the legal
description of Eagan, MN contained in Exhibit B.
Partial Release: Filed with MN Secretary of State as No. 2338880, dated June 4, 2001, releasing the Secured Party's
interest in the real property located in Woodbury, MN
Partial Release: Filed with MN Secretary of State as No. __________, dated ______, 2001, releasing the Secured
Party's interest in the real property located in Eagan, MN.
Collateral: All furniture, furnishings, equipment, machinery and personal property affixed to the Debtor's
Bloomington, MN premises.
Secured Party: General Electric Capital Corporation, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2252472, dated August 18, 2000
Collateral: Specific exercise and related equipment.
5.1-12
Secured Party: General Electric Capital Corporation, as assigned by Carlton Financial
Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2252475, dated August 18, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: General Electric Capital Corporation, as assigned by Carlton Financial
Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2252476, dated August 18, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: BCL Capital, as assigned by Loffler Business Systems Inc.
Debtor: Lifetime Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2254880, dated August 28, 2000.
Collateral: Specific office equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2256296, dated September 5, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2256297, dated September 5, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2256298, dated September 5, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Cambridge State Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2256299, dated September 5, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Merchants Capital Resources Inc., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2257708, dated September 11,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: Merchants Capital Resources Inc., as assigned by Carlton Financial
Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2257709, dated September 11,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2267165, dated October 17, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2267166, dated October 17, 2000.
Collateral: Specific exercise and related equipment.
5.1-13
Secured Party: Citizens Independent Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2267172, dated October 17, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Citizens Independent Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2267173, dated October 17, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: Antares Capital Corporation, as Agent
Debtor: FCA Construction Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2268245, dated October 19, 2000.
Collateral: Blanket.
Secured Party: Antares Capital Corporation, as Agent
Debtor: Life Time Kids, Inc.
Filing Information: Filed with MN Secretary of State as No. 2268246, dated October 19, 2000.
Collateral: Blanket.
Secured Party: Western Security Bank, as assigned by Highland Bank and as assigned by Carlton Financial
Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2269818, dated October 26, 2000
Assignment: Filed with MN Secretary of State as No. 2299376, dated February 13, 2001,
assigning security interest to Secured Party listed above.
Collateral: Specific exercise and related equipment.
Secured Party: BCL Capital, as assigned by Loffler Business Systems Incorporated
Debtor: LIFETIME FITNESS
Filing Information: Filed with MN Secretary of State as No. 2270611, dated October 30, 2000.
Collateral: Specific office equipment.
Secured Party: Richfield Bank & Trust, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2272465, dated November 6, 2000.
Collateral: Specific exercise and related equipment.
Secured Party: United Prairie Bank - Springfield, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2277112, dated November 22,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: United Prairie Bank - Springfield, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2277113, dated November 22,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2277458, dated November 27,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: Dakota Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2277459, dated November 27,
2000.
Collateral: Specific exercise and related equipment.
5.1-14
Secured Party: First Commercial Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2283678, dated December 19,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: First Commercial Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2283679, dated December 19,
2000.
Collateral: Specific exercise and related equipment.
Secured Party: Citizens State Bank, as assigned by First Commercial Bank and as assigned
by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2283680, dated December 19,
2000.
Amendment: Filed with MN Secretary of State as No. 2308020, dated March 19, 2001,
assigning the security interest to the Secured Party listed above.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2285451, dated December 26,
2000.
Collateral: Specific computer equipment.
Secured Party: Central Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2286790, dated January 2, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2287979, dated January 8, 2001.
Collateral: Specific computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2287981, dated January 8, 2001.
Collateral: Specific computer equipment.
Secured Party: First State Bank of Okabena, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2289625, dated January 12, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2289789, dated January 12, 2001.
Collateral: Specific computer equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, Inc.
Filing Information: Filed with MN Secretary of State as No. 2294158, dated January, 24, 2001.
Collateral: Specific computer equipment.
Secured Party: BCL Capital, as assigned by Loffler Business Systems Incorporated
Debtor: LIFETIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2294335, dated January 25, 2001.
Collateral: Specific office equipment.
5.1-15
Secured Party: Paragon Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2295078, dated January 29, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: The Business Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2298020, dated February 8, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2298022, dated February 8, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: BCL Capital, as assigned by Loffler
Debtor: LIFETIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2300713, dated February 26, 2001.
Collateral: Specific office equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2301142, dated February 21, 2001.
Collateral: Specific computer equipment.
Secured Party: Farnam Street Financial, Inc.
Debtor: LIFETIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2301693, dated February 22, 2001.
Collateral: Specific computer and telephone equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2302629, dated February 26, 2001.
Collateral: Specific computer equipment.
Secured Party: BCL Capital, as assigned by Loffler
Debtor: LIFETIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2302869, dated February 27, 2001.
Collateral: Specific office equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2302990, dated February 27, 2001.
Collateral: Specific computer equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2308027, dated March 19, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P.
Debtor: LIFE TIME FITNESS, INC.
Filing Information: Filed with MN Secretary of State as No. 2308965, dated March 20, 2001.
Collateral: Specific computer equipment.
Secured Party: First Personal Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2312449, dated April 3, 2001.
Collateral: Specific exercise and related equipment.
5.1-16
Secured Party: First Personal Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2312450, dated April 3, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: First Personal Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2312451, dated Apri1 3, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: State Bank of Chanhassen, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2313064, dated April 4, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: Richfield Bank & Trust Co., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2313068, dated April 4, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: BCL Capital, as assigned by Loffler Business Systems Incorporated
Debtor: LIFETIME FITNESS INCORPORATED
Filing Information: Filed with MN Secretary of State as No. 2316058, dated April 16, 2001.
Collateral: Specific office equipment.
Secured Party: Ridgestone Bank, as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2318883, dated April 24, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: ▇▇▇▇▇▇ Bank, N.A., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2318949, dated April 24, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: ▇▇▇▇▇▇ Bank, N.A., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2318950, dated April 24, 2001.
Collateral: Specific exercise and related equipment.
Secured Party: Dell Financial Services, L.P., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2335028, dated May 18, 2001.
Collateral: Specific computer equipment.
Secured Party: Dell Financial Services, L.P., as assigned by Carlton Financial Corporation
Debtor: Life Time Fitness, Inc.
Filing Information: Filed with MN Secretary of State as No. 2340904, dated June 11, 2001.
Collateral: Specific computer equipment.
Secured Party: U.S. Bank National Association, as Collateral Agent
Debtor: FCA Real Estate Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2322714, dated June 12, 2001.
Collateral: All furniture, furnishings, equipment, machinery and personal property affixed to the Debtor's
Algonquin, IL premises.
Secured Party: U.S. Bank National Association, as Collateral Agent
Debtor: FCA Construction Holdings, LLC
Filing Information: Filed with MN Secretary of State as No. 2322715, dated June 12, 2001.
Collateral: All of Debtor's right, title and interest in all subcontracts, purchase orders and other agreements
5.1-17
related to the construction contract dated March 1, 2000 with FCA Real Estate Holdings, LLC
relating to the Village of Algonquin, Illinois project.
Secured Party: U.S. Bank National Association, as Collateral Agent
Debtor: FCA Real Estate Holdings, LLC
Filing Information: Filed with IL Secretary of State as No.____________ , dated ________, 2001.
Collateral: All furniture, furnishings, equipment, machinery and personal property affixed to the Debtor's
Algonquin, IL premises.
Secured Party: Teachers Insurance and Annuity Association America
Debtor: LTF Michigan Real Estate, LLC
Filing Information: Filed with MI Secretary of State as No._______ dated ___________, 2001.
Collateral: The Debtor's land in Troy, Novi and Shelby, MI ("Land"), all improvements on the Land, all
fixtures and personal property. whether tangible or intangible, on the Land and improvements, all
agreements for the Land, improvements and fixtures and personal property, and all products and
proceeds of the foregoing.
Secured Party: Teachers Insurance and Annuity Association of America
Debtor: LTF Michigan Real Estate, LLC
Filing Information: Filed with MN Secretary of State as No. _____, dated ____________, 2001.
Collateral: The Debtor's land in Troy, Novi and Shelby, MI ("Land"), all improvements on the Land, all
fixtures and personal property, whether tangible or intangible, on the Land and improvements, all
agreements for the Land, improvements and fixtures and personal property, and all products and
proceeds of the foregoing.
Secured Party: Teachers Insurance and Annuity Association of America
Debtor: LTF Minnesota Real Estate, LLC
Filing Information: Filed with MN Secretary of State as No. ______, dated __________, 2001.
Collateral: The Debtor's land in Eagan, MN ("Land"), all improvements on the Land, all fixtures and personal
property, whether tangible or intangible, on the Land and improvements, all agreements for the
Land, improvements and fixtures and personal property, and all products and proceeds of the
foregoing.
Secured Party: Teachers Insurance and Annuity Association of America
Debtor: LTF USA Real Estate, LLC
Filing Information: Filed with MN Secretary of State as No. _______, dated __________, 2001.
Collateral: The Debtor's land in Indianapolis, IN, Centreville, VA, Schaumburg, IL and Warrenville, IL
("Land"), all improvements on the Land, all fixtures and personal property, whether tangible or
intangible, on the Land and improvements, all agreements for the Land, improvements and fixtures
and personal property, and all products and proceeds of the foregoing.
Secured Party: Teachers Insurance and Annuity Association of America
Debtor: LTF USA Real Estate, LLC
Filing Information: Filed with IN Secretary of State as No. ______, dated _________, 2001.
Collateral: The Debtor's land in Indianapolis, IN ("Land"), all improvements on the Land, all fixtures and
personal property, whether tangible or intangible, on the Land and improvements, all agreements for
the Land, improvements and fixtures and personal property, and all products and proceeds of the
foregoing.
Secured Party: Teachers Insurance and Annuity Association of America
Debtor: LTF USA Real Estate, LLC
Filing Information: Filed with VA Secretary of State as No. _______, dated _______, 2001.
Collateral: The Debtor's land in Centreville, VA ("Land"), all improvements on the Land, all fixtures and
personal property, whether tangible or intangible, on the Land and improvements, all agreements for
the Land, improvements and fixtures and personal property, and all products and proceeds of the
foregoing.
Secured Party: Teachers Insurance and Annuity Association of America
Debtor: LTF USA Real Estate, LLC
Filing Information: Filed with IL Secretary of State as No. _______, dated _______, 2001.
Collateral: The Debtor's land in Schaumburg and Warrenville, IL ("Land"), all improvements on the Land, all
5.1-18
fixtures and personal property, whether tangible or intangible, on the Land and improvements, all
agreements for the Land, improvements and fixtures and personal property, and all products and
proceeds of the foregoing.
B. REAL ESTATE LIENS.
Combination Mortgage, Security Agreement and Fixture Financing
Statement dated June 21, 1996, filed with Hennepin County, MN on July
25, 1996, as Document No. 2727565 and filed with Hennepin County, MN on
July 30, 1996, as Document No. 6613574, executed by FCA, Ltd. in favor
of First Bank National Association; as corrected by Corrective
Combination Mortgage, Security Agreement and Fixture Financing
Statement dated June 21, 1996, filed with Hennepin County, MN on March
28, 1997, as Document No. 6715292 and filed with Hennepin County, MN on
April 7, 1997, as Document No. 2799876; as amended by Amendment No. 1
to Combination Mortgage, Security Agreement and Fixture Financing
Statement dated April 5, 1999, filed with Hennepin County, MN on April
7, 1999, as Document No. 7091765, and filed with Hennepin County, MN on
April 7, 1999, as Document No. 3142562, amending the names of the
Debtor to LIFE TIME FITNESS, Inc. and the Secured Party to U.S. Bank
National Association.(Plymouth, MN)
Assignment of Leases and Rents dated June 21, 1996, filed with Hennepin
County, MN on July 25, 1996, as Document No. 2727568 and filed with
Hennepin County, MN on July 30, 1996, as Document No. 6613576, executed
by FCA, Ltd. in favor of First Bank National Association, as amended by
Amendment No. 1 to Assignment of Leases and Rents dated April 5, 1999,
filed with Hennepin County, MN on April 7, 1999, as Document No.
3142563, and filed with Hennepin County, MN on April 7, 1999, as
Document No. 7091766, amending the names of the Debtor to LIFE TIME
FITNESS, Inc. and the Secured Party to U.S. Bank National Association.
(Plymouth, MN)
UCC-2 Fixture Financing Statement filed with Hennepin County, MN on
July 18, 1996, as Document No. 1119101, executed by FCA, Ltd. in favor
of First Bank National Association, as amended by Document No. 1337675,
dated March 18, 1999, amending the names of the Debtor to LIFE TIME
FITNESS, Inc. and the Secured Party to U.S. Bank National Association.
and as partial released by Document No. 1141820, dated November 19,
1999, releasing the Secured Party's security interest in personal
property arising from Debtor's business operations on premises.
(Plymouth, MN)
UCC-2 Fixture Financing Statement filed with Hennepin County, MN on
August 15, 1997, as Document No. 2836591, executed by FCA Real Estate
Holdings, LLC, as debtor, in favor of First Bank National Association,
as secured party. (Bloomington, MN)
Combination Mortgage, Security Agreement, Assignment of Leases and
Rents and Fixture Financing Statement dated July 31, 1997, filed with
Hennepin County, MN on August 15, 1997, as Document No. 2836589,
executed by FCA Real Estate Holdings, LLC in favor of U.S. Bank
National Association, f/k/a First Bank National Association; as amended
by Amendment No. 1 to Combination Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Financing Statement dated
May 7, 1998, filed with Hennepin County, MN on October 14, 1998, as
Document No. 3070344; as assigned by U.S. Bank National Association,
f/k/a First Bank National Association, to U.S. Bank National
Association, as Collateral Agent, according to the terms of the
Assignment of Mortgage and Assignment of Leases and Rents dated July
17, 2000, filed with Hennepin County, MN on August 7, 2000, as Document
No. 3303017; and as amended and restated by the Amended and Restated
Combination Mortgage, Security Agreement, Assignment of Leases and
Rents and Fixture Financing Statement dated July 17, 2000, filed with
Hennepin County, MN on August 7, 2000, as Document No. 3303018.
(Bloomington, MN)
Assignment of Leases and Rents dated July 31, 1997, filed with Hennepin
County, MN on August 15, 1997, as Document No. 2836590, executed by FCA
Real Estate Holdings LLC in favor of U.S. Bank National Association,
f/k/a First Bank National Association; as amended by Amendment No. 1 to
Assignment of Leases and Rents dated May 7, 1998, filed with Hennepin
County, MN on October 14, 1998, as Document No. 3070345; as assigned by
U.S. Bank National Association. f/k/a First Bank National Association,
to U.S. Bank National Association, as Collateral Agent, according to
the terms of the Assignment of Mortgage and Assignment of Leases and
Rents dated July 17, 2000, filed with Hennepin County, MN on August 7,
2000, as Document No. 3303017; and as amended and restated by the
Amended and Restated Assignment of Leases and Rents dated July 17,
2000, filed with Hennepin County, MN on August 7, 2000, as Document No.
3303019. (Bloomington, MN)
UCC-2 Fixture Financing Statement filed with Hennepin County, MN on
December 4, 1997, as Document No. 2867079, executed by FCA, Ltd., a
Minnesota corporation, in favor of Antares Leveraged Capital
Corporation, as amended by Document No. 3228948, dated November 29,
1999, amending the names of the Debtor to Life Time Fitness, Inc. and
the Secured Party to Antares Capital Corporation, as agent.
(Bloomington, MN)
5.1-19
Open-End Mortgage, Security Agreement, Assignment of Leases and Rents
and Fixture Financing Statement dated March 3, 1999, filed with
Franklin County, OH on March 29, 1999, as Document No. 199903290076948,
executed by FCA Real Estate Holdings, LLC, in favor of U.S. Bank
National Association, as Collateral Agent. (Columbus, OH)
Assignment of Leases and Rents dated March 3, 1999, filed with Franklin
County, OH on March 29, 1999, as Document No. 199903290076951, executed
by FCA Real Estate Holdings, LLC, in favor of U.S. Bank National
Association, as Collateral Agent.(Columbus, OH)
UCC-2 Fixture Financing Statement tiled with Franklin County, OH on
March 12, 1999, as Document No. 199903120061868, executed by FCA Real
Estate Holdings, LLC, in favor of U.S. Bank National Association, as
Collateral Agent. (Columbus, OH)
UCC-2 Fixture Financing Statement filed with Hennepin County, MN on
April 5, 1999, as Document No. 3141607, executed by LIFE TIME FITNESS,
Inc., in favor of U.S. Bank National Association. (Plymouth, MN)
UCC-2 Fixture Financing Statement filed with Franklin County, OH on
November 16, 1999, as Document No. 199911160285722, executed by LIFE
TIME FITNESS, Inc,. in favor of Antares Capital Corporation, as Agent.
(Columbus, OH)
UCC-2 Fixture Financing Statement filed with Marion County, IN on
November 16, 1999, as Document No. 8109, executed by LIFE TIME FITNESS,
Inc., in favor of Antares Capital Corporation, as Agent. (Indianapolis,
IN)
UCC-2 Fixture Financing Statement filed with Ramsey County, MN on
November 16, 1999, as Document No. 3286457, executed by LIFE TIME
FITNESS, Inc., in favor of Antares Capital Corporation, as Agent. (St.
Paul, MN)
UCC-2 Fixture Financing Statement filed with Hennepin county, MN on
November 18, 1999, as Document No. 3226553, executed by LIFE TIME
FITNESS, Inc., in favor of Antares Capital Corporation, as Agent.
(Bloomington, MN)
UCC-2 Fixture Financing Statement filed with Anoka County, MN on
December 23, 1999, as Document No. 14767520, executed by LIFE TIME
FITNESS, Inc., in favor of Antares Capital Corporation, as Agent. (Coon
Rapids, MN)
UCC-2 Fixture Financing Statement filed with Hennepin County, MN on
January 26, 2000, as Document No. 7249995, executed by FCA Restaurant
Holdings, LLC, in favor of Antares Capital Corporation, as Agent.
(Minneapolis, MN)
Mortgage, dated June 14, 2001, filed with McHenry County, IL on _____,
2001, as Document No. _____, executed by FCA Real Estate Holdings, LLC,
in favor of U.S. Bank National Association, as Collateral Agent.
(Algonquin, IL)
Assignment of Leases, dated June 14, 2001, filed with McHenry County,
IL on _____, 2001, as Document No. _______, executed by FCA Real Estate
Holdings, LLC, in favor of U.S. Bank National Association, as
Collateral Agent. (Algonquin. IL)
UCC-2 Fixture Financing Statement, dated June 14, 2001, filed with
McHenry County, IL on ___________, 2001, as Document No. ________,
executed by FCA Real Estate Holdings, LLC, in favor of U.S. Bank
National Association, as Collateral Agent. (Algonquin, IL)
Mortgage, dated June 14, 2001, filed with Oakland County, MI, on
________, 2001, as Document No. ________, executed by LTF Michigan Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Troy, MI)
Second Mortgage, dated June 14, 2001, filed with Oakland County, MI on
_________, 2001, as Document No. _________, executed by LTF Michigan
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Troy, MI)
Assignment of Leases, dated June 14, 2001, filed with Oakland County,
MI on __________, 2001, as Document No. ________, executed by LTF
Michigan Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Troy, MI)
5.1-20
Second Assignment of Leases, dated June 14, 2001, filed with Oakland
County, MI on _______, 2001, as Document No. ________, executed by LTF
Michigan Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Troy, MI)
UCC-2 Fixture Financing Statement filed with Oakland County, MI on
_______, 2001, as Document No. _______, executed by LTF Michigan Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Troy and Novi, MI)
Mortgage, dated June 14, 2001, filed with Oakland County, MI on
____________, 2001, as Document No. _________, executed by LTF Michigan
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Novi, MI)
Second Mortgage, dated June 14, 2001, filed with Oakland County, MI on
___________, 2001, as Document No. ________, executed by LTF Michigan
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Novi, MI)
Assignment of Leases, dated June 14, 2001, filed with Oakland County,
MI on __________, 2001, as Document No. _________, executed by LTF
Michigan Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Novi, MI)
Second Assignment of Leases, dated June 14, 2001, filed with Oakland
County, MI on ____________, 2001, as Document No. __________, executed
by LTF Michigan Real Estate, LLC, in favor of Teachers Insurance and
Annuity Association of America.(Novi, MI)
Mortgage, dated June 14, 2001, filed with Macomb County, Ml on
__________, 2001, as Document No. _________, executed by LTF Michigan
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Shelby, MI)
Second Mortgage, dated June 14, 2001, filed with Macomb County, MI on
__________, 2001, as Document No. _________, executed by LTF Michigan
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Shelby, MI)
Assignment of Leases, dated June 14, 2001, filed with Macomb County,
MI, on __________, 2001, as Document No. ________, executed by LTF
Michigan Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Shelby, MI)
Second Assignment of Leases, dated June 14, 2001, filed with Macomb
County, MI on ___________, 2001, as Document No. ________, executed by
LTF Michigan Real Estate, LLC, in favor of Teachers Insurance and
Annuity Association of America.(Shelby, MI)
UCC-2 Fixture Financing Statement filed with Macomb County, MI on
_________, 2001, as Document No. _________, executed by LTF Michigan
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Shelby, MI)
Mortgage, dated June 14, 2001, filed with Dakota County, MN on
___________, 2001, as Document No. _______, executed by LTF Minnesota
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Eagan, MN)
Second Mortgage, dated June 14, 2001, filed with Dakota County, MN on
___________, 2001, as Document No. _________, executed by LTF Minnesota
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Eagan, MN)
Assignment of Leases, dated June 14, 2001, filed with Dakota County, MN
on _____________, 2001, as Document No. _________, executed by LTF
Minnesota Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Eagan, MN)
Second Assignment of Leases, dated June 14, 2001, filed with Dakota
County, MN on _________, 2001, as Document No. __________, executed by
LTF Minnesota Real Estate, LLC, in favor of Teachers Insurance and
Annuity Association of America.(Eagan, MN)
5.1-21
UCC-2 Fixture Financing Statement filed with Dakota County, MN on
____________, 2001, as Document No. ________, executed by LTF Minnesota
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Eagan, MN)
Mortgage, dated June 14, 2001, filed with Marion County, IN on
_____________, 2001, as Document No. ________, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Indianapolis, IN)
Second Mortgage, dated June 14, 2001, filed with Marion County, IN on
___________, 2001, as Document No. _________, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Indianapolis, IN)
Assignment of Leases, dated June 14, 2001, filed with Marion County, IN
on _____________, 2001, as Document No. ________, executed by LTF USA
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Indianapolis, IN)
Second Assignment of Leases, dated June 14, 2001, filed with Marion
County, IL on ______________, 2001, as Document No. _______, executed
by LTF USA Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America.(Indianapolis, IN)
UCC-2 Fixture Financing Statement filed with Marion County, IN on
____________, 2001, as Document No. _______, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Indianapolis, IN)
Mortgage, dated June 14, 2001, filed with Fairfax County, VA on
___________, 2001, as Document No. _______, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Centreville, VA)
Second Mortgage, dated June 14, 2001, filed with Fairfax County, VA on
______________, 2001. as Document No. _______, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Centreville, VA)
Assignment of Leases, dated June 14, 2001, filed with Fairfax County,
VA on _____________, 2001, as Document No. ________, executed by LTF
USA Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Centreville, VA)
Second Assignment of Leases, dated June 14, 2001, filed with Fairfax
County, VA on __________, 2001, as Document No. _______, executed by
LTF USA Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America.(Centreville, VA)
UCC-2 Fixture Financing Statement filed with Fairfax County, VA on
____________, 2001, as Document No. ________, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Centreville, VA)
Mortgage, dated June 14, 2001, filed with Cook County, IL on
_______________, 2001, as Document No. ______, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Schaumburg, IL)
Second Mortgage, dated June 14, 2001, filed with Cook County, IL on
__________, 2001, as Document No. _______, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Schaumburg, IL)
Assignment of Leases, dated June 14, 2001, filed with Cook County, IL
on _______________, 2001, as Document No. __________, executed by LTF
USA Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Schaumburg, IL)
Second Assignment of Leases, dated June 14, 2001, filed with Cook
County, IL on _____________, 2001, as Document No. _____, executed by
LTF USA Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Schaumburg, IL)
5.1-22
UCC-2 Fixture Financing Statement filed with Cook County, IL on
____________, 2001, as Document No. ________, executed by LTF USA Real
Estate, LLC, in favor of Teachers Insurance and Annuity Association of
America. (Schaumburg. IL)
Mortgage, dated June 14, 2001, filed with DuPage County, IL on
________________, 2001, as Document No. _________, executed by LTF USA
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Warrenville, IL)
Second Mortgage, dated June 14, 2001, filed with DuPage County, IL on
_______________, 2001, as Document No. _________, executed by LTF USA
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Warrenville, IL)
Assignment of Leases, dated June 14, 2001, filed with DuPage County, IL
on _______________, 2001, as Document No. _______, executed by LTF USA
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Warrenville, IL)
Second Assignment of Leases, dated June 14, 2001, filed with DuPage
County, IL on __________, 2001, as Document No. _________, executed by
LTF USA Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America.(Warrenville, IL)
UCC-2 Fixture Financing Statement filed with DuPage County, IL on
______________, 2001, as Document No. _________, executed by LTF USA
Real Estate, LLC, in favor of Teachers Insurance and Annuity
Association of America. (Warrenville, IL)
C. OTHER.
Antares Leveraged Capital Corp. has a security interest in the
Company's intellectual property and provides for a pledge of the
Company's interest in LIFE TIME Kids, Inc., FCA Real Estate Holdings,
LLC, FCA Restaurant Holdings, LLC and FCA Construction Holdings, LLC.
In connection with the Company's Guaranty of Bloomingdale Revenue
Bonds, the Company has pledged its interests in Bloomingdale LIFE TIME
Fitness, L.L.C. to secure the borrower's obligations under the bonds.
In connection with FCA Restaurant Holdings, LLC's lease of the
Minneapolis LIFETIME Athletic Club Restaurant Space, the Company has
made a Guaranty, dated September 19, 1999, to 679 Third Street
Investors Company, as landlord of such space.
In connection with the mortgage loan financing of Teachers Insurance
and Annuity Association of America, the Company has made a Guaranty,
dated June 14, 2001, to Teachers Insurance and Annuity Association of
America of the representations made by LTF Michigan Real Estate, LLC,
LTF Minnesota Real Estate, LLC and LTF USA Real Estate, LLC regarding
such financing.
In connection with the mortgage loan financing of Teachers Insurance
and Annuity Association of America, LTF Real Estate Holdings, LLC has
made a Guaranty, dated June 14, 2001, to Teachers Insurance and Annuity
Association of America of the representations made by LTF Michigan Real
Estate, LLC, LTF Minnesota Real Estate, LLC and LTF USA Real Estate,
LLC regarding such financing.
In connection with the mortgage loan financing of Teachers Insurance
and Annuity Association of America, LTF Michigan Real Estate, LLC has
made a Guaranty, dated June 14, 2001, to Teachers Insurance and Annuity
Association of America of the indebtedness of LTF Minnesota Real
Estate, LLC and LTF USA Real Estate, LLC incurred as a result of
financing.
In connection with the mortgage loan financing of Teachers Insurance
and Annuity Association of America, LTF Minnesota Real Estate, LLC has
made a Guaranty, dated June 14, 2001, to Teachers Insurance and Annuity
Association of America of the indebtedness of LTF Michigan Real Estate,
LLC and LTF USA Real Estate, LLC incurred as a result of such
financing.
In connection with the mortgage loan financing of Teachers Insurance
and Annuity Association of America, LTF USA Real Estate, LLC has made a
Guaranty, dated June 14, 2001, to Teachers Insurance and Annuity
Association of
5.1-23
America of the promissory notes made by LTF Michigan Real Estate, LLC
and LTF Minnesota Real Estate, LLC incurred as a result of such
financing.
5.1-24
SCHEDULE 5.5
INDEBTEDNESS
(Balances as of June 14, 2001)
DESCRIPTION LENDER DESCRIPTION TOTAL
--------------------- --------------------- ------------------------ --------------
Mtg. Note Payable U.S. Bank Algonquin, IL $ 9,598,433
Mtg. Note Payable U.S. Bank Algonquin, IL $ 3,387,794
Mtg. Note Payable Teachers Insurance Eagan, MN $ 4,550,000
Mtg. Note Payable Teachers Insurance Troy, MI $ 10,949,541
Mtg. Note Payable Teachers Insurance Novi, MI $ 9,710,019
Mtg. Note Payable Teachers Insurance Shelby, MI $ 10,143,440
Mtg. Note Payable Teachers Insurance Indianapolis, IN $ 9,049,000
Mtg. Note Payable Teachers Insurance Centreville, VA $ 9,344,000
Mtg. Note Payable Teachers Insurance Schaumburg, IL $ 12,149,062
Mtg. Note Payable Teachers Insurance Warrenville, IL $ 13,723,938
Revolver Note Payable Antares Capital Corp. Revolving Line of Credit $ 19,943,899
(Balances as of May 31, 2001)
DESCRIPTION LENDER DESCRIPTION TOTAL
----------------------- ----------------- ---------------------- ------------
Bldg. Mtg. Note Payable U.S. Bank Plymouth, MN $ 3,516,566
Mtg. Note Payable U.S. Bank Bloomington, MN $ 1,591,960
Mtg. Note Payable U.S. Bank Columbus, OH $ 4,573,649
Lease Schedule - Master Carlton Financial Equipment $ 578
Lease Schedule #1 Carlton Financial Equipment $ 455
Lease Schedule #2 Carlton Financial Equipment $ 23,796
Lease Schedule #4 Carlton Financial Leasehold Improvements $ 98,688
Lease Schedule #6 Carlton Financial Leasehold Improvements $ 44,173
Lease Schedule #12 Carlton Financial Equipment $ 175,392
Lease Schedule #13 Carlton Financial Equipment $ 65,620
Lease Schedule #14 Carlton Financial Leasehold Improvements $ 10,430
Lease Schedule #15 Carlton Financial Equipment $ 135,359
Lease Schedule #16 Carlton Financial Equipment $ 646,472
Lease Schedule #17 Carlton Financial Leasehold Improvements $ 20,394
Lease Schedule #18 Carlton Financial Equipment $ 290,215
Lease Schedule #19 Carlton Financial Equipment $ 115,266
Lease Schedule #20 Carlton Financial Equipment $ 82,448
Lease Schedule #21 Carlton Financial Equipment $ 240,400
Lease Schedule #22 Carlton Financial Equipment $ 154,241
Lease Schedule #23 Carlton Financial Equipment $ 77,144
Lease Schedule #24 Carlton Financial Equipment $ 86,214
Lease Schedule #25 Carlton Financial Equipment $ 24,202
Lease Schedule #26 Carlton Financial Equipment $ 91,130
Lease Schedule #27 Carlton Financial Equipment $ 57,197
Lease Schedule #28 Carlton Financial Equipment $ 347,003
Lease Schedule #29 Carlton Financial Equipment $ 335,970
Lease Schedule #30 Carlton Financial Equipment $ 123,341
Lease Schedule #31 Carlton Financial Equipment $ 424,252
Lease Schedule #32 Carlton Financial Equipment $ 147,579
Lease Schedule #33 Carlton Financial Equipment $ 228,017
Lease Schedule #34 Carlton Financial Equipment $ 259,556
Lease Schedule #35 Carlton Financial Equipment $ 197,188
Lease Schedule #36 Carlton Financial Equipment $ 167,377
Lease Schedule #37 Carlton Financial Equipment $ 179,210
Lease Schedule #38 Carlton Financial Equipment $ 923,766
Lease Schedule #39 Carlton Financial Equipment $ 273,674
Lease Schedule #40 Carlton Financial Equipment $ 329,920
Lease Schedule #41 Carlton Financial Equipment $ 273,376
5.5-1
DESCRIPTION LENDER DESCRIPTION TOTAL
------------------ ----------------- ------------ --------------
Lease Schedule #42 Carlton Financial Equipment $ 712,521
Lease Schedule #43 Carlton Financial Equipment $ 146,283
Lease Schedule #44 Carlton Financial Equipment $ 724,954
Lease Schedule #45 Carlton Financial Equipment $ 264,584
Lease Schedule #46 Carlton Financial Equipment $ 135,924
Lease Schedule #47 Carlton Financial Equipment $ 274,805
Lease Schedule #48 Carlton Financial Equipment $ 283,182
Lease Schedule #49 Carlton Financial Equipment $ 482,727
Lease Schedule #50 Carlton Financial Equipment $ 97,993
Lease Schedule #51 Carlton Financial Equipment $ 149,080
Lease Schedule #52 Carlton Financial Equipment $ 267,593
Lease Schedule #53 Carlton Financial Equipment $ 839,208
Lease Schedule #54 Carlton Financial Equipment $ 163,414
Lease Schedule #55 Carlton Financial Equipment $ 115,736
Lease Schedule #56 Carlton Financial Equipment $ 232,233
Lease Schedule #57 Carlton Financial Equipment $ 166,318
Lease Schedule #58 Carlton Financial Equipment $ 268,108
Lease Schedule #59 Carlton Financial Equipment $ 65,593
Lease Schedule #60 Carlton Financial Equipment $ 162,730
Lease Schedule #61 Carlton Financial Equipment $ 560,110
Lease Schedule #62 Carlton Financial Equipment $ 452,411
Lease Schedule #63 Carlton Financial Equipment $ 463,615
Lease Schedule #64 Carlton Financial Equipment $ 111,543
Lease Schedule #65 Carlton Financial Equipment $ 222,037
Lease Schedule #66 Carlton Financial Equipment $ 268,265
Lease Schedule #67 Carlton Financial Equipment $ 198,305
Lease Schedule #68 Carlton Financial Equipment $ 168,089
Lease Schedule #69 Carlton Financial Equipment $ 379,925
Lease Schedule #70 Carlton Financial Equipment $ 363,822
Lease Schedule #71 Carlton Financial Equipment $ 84,008
Lease Schedule #72 Carlton Financial Equipment $ 1,053,089
Lease Schedule #73 Carlton Financial Equipment $ 244,112
Lease Schedule #74 Carlton Financial Equipment $ 159,957
Lease Schedule #75 Carlton Financial Equipment $ 500,040
Lease Schedule #76 Carlton Financial Equipment $ 137,796
Lease Schedule #77 Carlton Financial Equipment $ 73,055
Lease Schedule #78 Carlton Financial Equipment $ 58,334
Lease Schedule #79 Carlton Financial Equipment $ 94,784
Lease Schedule #80 Carlton Financial Equipment $ 161,727
Lease Schedule #81 Carlton Financial Equipment $ 507,042
Lease Schedule #82 Carlton Financial Equipment $ 473,595
Lease Schedule #83 Carlton Financial Equipment $ 415,895
Lease Schedule #84 Carlton Financial Equipment $ 532,861
Lease Schedule #85 Carlton Financial Equipment $ 537,788
Lease Schedule #86 Carlton Financial Equipment $ 346,251
Lease Schedule #87 Carlton Financial Equipment $ 533,571
Lease Schedule #88 Carlton Financial Equipment $ 281,182
Lease Schedule #89 Carlton Financial Equipment $ 528,404
Lease Schedule #90 Carlton Financial Equipment $ 358,226
Lease Schedule #91 Carlton Financial Equipment $ 117,521
Lease Schedule #92 Carlton Financial Equipment $ 145,513
Lease Schedule #93 Carlton Financial Equipment $ 568,664
Lease Schedule #94 Carlton Financial Equipment $ 468,017
Lease Schedule #95 Carlton Financial Equipment $ 348,870
Lease Schedule #96 Carlton Financial Equipment $ 201,395
Lease Schedule #97 Carlton Financial Equipment $ 133,990
Lease Schedule #98 Carlton Financial Equipment $ 198,690
Lease Schedule #99 Carlton Financial Equipment $ 207,465
5.5-2
DESCRIPTION LENDER DESCRIPTION TOTAL
----------------------- ----------------- ------------------ --------------
Lease Schedule #100 Carlton Financial Equipment $ 747,636
Lease Schedule #101 Carlton Financial Equipment $ 286,540
Lease Schedule #102 Carlton Financial Equipment $ 549,205
Lease Schedule #103 Carlton Financial Equipment $ 532,867
Lease Schedule #104 Carlton Financial Equipment $ 200,216
Lease Schedule #105 Carlton Financial Equipment $ 504,007
Lease Schedule #106 Carlton Financial Equipment $ 871,550
Lease Schedule - Master Dell Financial Computer Equipment $ 9,355
Lease Schedule #3 Dell Financial Computer Equipment $ 12,565
Lease Schedule #5 Dell Financial Computer Equipment $ 1,200
Lease Schedule #6 Dell Financial Computer Equipment $ 1,854
Lease Schedule #7 Dell Financial Computer Equipment $ 1,771
Lease Schedule #8 Dell Financial Computer Equipment $ 368
Lease Schedule #9 Dell Financial Computer Equipment $ 4,808
Lease Schedule #10 Dell Financial Computer Equipment $ 13,656
Lease Schedule #11 Dell Financial Computer Equipment $ 918
Lease Schedule #12 Dell Financial Computer Equipment $ 3,848
Lease Schedule #13 Dell Financial Computer Equipment $ 4,890
Lease Schedule #14 Dell Financial Computer Equipment $ 5,290
Lease Schedule #15 Dell Financial Computer Equipment $ 2,380
Lease Schedule #16 Dell Financial Computer Equipment $ 3,575
Lease Schedule #17 Dell Financial Computer Equipment $ 3,843
Lease Schedule #19 Dell Financial Computer Equipment $ 5,691
Lease Schedule #20 Dell Financial Computer Equipment $ 9,614
Lease Schedule #21 Dell Financial Computer Equipment $ 7,845
Lease Schedule #22 Dell Financial Computer Equipment $ 15,022
Lease Schedule #23 Dell Financial Computer Equipment $ 6,193
Lease Schedule #25 Dell Financial Computer Equipment $ 32,465
Lease Schedule #28 Dell Financial Computer Equipment $ 1,946
Lease Schedule #29 Dell Financial Computer Equipment $ 6,924
Lease Schedule #30 Dell Financial Computer Equipment $ 6,956
Lease Schedule #31 Dell Financial Computer Equipment $ 13,970
Lease Schedule #32 Dell Financial Computer Equipment $ 7,094
Lease Schedule #33 Dell Financial Computer Equipment $ 25,038
Lease Schedule #35 Dell Financial Computer Equipment $ 81,514
Lease Schedule #36 Dell Financial Computer Equipment $ 11,681
Lease Schedule #37 Dell Financial Computer Equipment $ 5,129
Lease Schedule #38 Dell Financial Computer Equipment $ 11,986
Lease Schedule #40 Dell Financial Computer Equipment $ 6,335
Lease Schedule #41 Dell Financial Computer Equipment $ 34,256
Lease Schedule #43 Dell Financial Computer Equipment $ 11,506
Lease Schedule #45 Dell Financial Computer Equipment $ 3,029
Lease Schedule #46 Dell Financial Computer Equipment $ 21,571
Lease Schedule #47 Dell Financial Computer Equipment $ 5,566
Lease Schedule #48 Dell Financial Computer Equipment $ 2,437
Lease Schedule #49 Dell Financial Computer Equipment $ 19,716
Lease Schedule #50 Dell Financial Computer Equipment $ 7,866
Lease Schedule #51 Dell Financial Computer Equipment $ 12,606
Lease Schedule #52 Dell Financial Computer Equipment $ 8,565
Lease Schedule #53 Dell Financial Computer Equipment $ 17,779
Lease Schedule #55 Dell Financial Computer Equipment $ 17,040
Lease Schedule #56 Dell Financial Computer Equipment $ 5,616
Lease Schedule #305 Dell Financial Computer Equipment $ 151
Lease Schedule #401 Dell Financial Computer Equipment $ 122
Lease Schedule #500 Dell Financial Computer Equipment $ 59,432
Lease Schedule #501 Dell Financial Computer Equipment $ 21,532
Lease Schedule #502 Dell Financial Computer Equipment $ 26,126
Lease Schedule #503 Dell Financial Computer Equipment $ 51,825
5.5-3
DESCRIPTION LENDER DESCRIPTION TOTAL
-------------------- -------------- ----------------------------- --------------
Lease Schedule #504 Dell Financial Computer Equipment $ 61,797
Lease Schedule #505 Dell Financial Computer Equipment $ 52,521
Lease Schedule #506 Dell Financial Computer Equipment $ 2,285
Lease Schedule #507 Dell Financial Computer Equipment $ 37,088
Lease Schedule #508 Dell Financial Computer Equipment $ 40,326
Lease Schedule #509 Dell Financial Computer Equipment $ 71,138
Lease Schedule #510 Dell Financial Computer Equipment $ 11,925
Lease Schedule #800 Dell Financial Computer Equipment $ 861
Lease Schedule #801 Dell Financial Computer Equipment $ 2,739
Lease Schedule #802 Dell Financial Computer Equipment $ 292
Lease Schedule #803 Dell Financial Computer Equipment $ 8
Lease Schedule #804 Dell Financial Computer Equipment $ 49
Lease Schedule #805 Dell Financial Computer Equipment $ 56
Lease Schedule #806 Dell Financial Computer Equipment $ 77
Lease Schedule #807 Dell Financial Computer Equipment $ 60
Lease Schedule #808 Dell Financial Computer Equipment $ 110
Lease Schedule #810 Dell Financial Computer Equipment $ 11
Lease Schedule #814 Dell Financial Computer Equipment $ 66
Lease Schedule #001R Farnam Street Computer and Teleco Equipment $ 190,687
Lease of Aircraft, dated April 11, 2000, between Windsor Aviation and the
Company.
Master Lease Agreement #12099901 between the Company and Community First Leasing
Services, inc., a division of Carlton Financial Corp. dated December 9, 1999.
5.5-4
SCHEDULE 5.9
CONTINGENT OBLIGATIONS
1. Guaranty by LIFE TIME FITNESS, Inc., dated September 19, 1999, to 679
Third Street Investors Company in connection with FCA Restaurant
Holdings, LLC's lease of Minneapolis LIFE TIME Athletic Club Restaurant
Space.
2. Guaranty by LIFE TIME FITNESS, Inc., dated June 7, 2000, to American
National Bank and Trust of Chicago in connection with the Bloomingdale
Revenue Bonds.
3. Guaranty by LIFE TIME FITNESS, Inc., dated June 14, 2001, to Teachers
Insurance and Annuity Association of America of the representations
made by LTF Michigan Real Estate, LLC, LTF Minnesota Real Estate, LLC
and LTF USA Real Estate, LLC in connection with the Teachers Insurance
and Annuity Association of America mortgage loan financing.
4. Guaranty by LTF Real Estate Holdings, LLC, dated June 14, 2001, to
Teachers Insurance and Annuity Association of America of the
representations made by LTF Michigan Real Estate, LLC, LTF Minnesota
Real Estate, LLC and LTF USA Real Estate, LLC in connection with the
Teachers Insurance and Annuity Association of America mortgage loan
financing.
5. Guaranty by LTF Michigan Real Estate, LLC, dated June 14, 2001, to
Teachers Insurance and Annuity Association of America of the
indebtedness by LTF Minnesota Real Estate, LLC and LTF USA Real Estate,
LLC in connection with the Teachers Insurance and Annuity Association
of America mortgage loan financing.
6. Guaranty by LTF Minnesota Real Estate, LLC, dated June 14, 2001, to
Teachers Insurance and Annuity Association of America of the
indebtedness of LTF Michigan Real Estate, LLC and LTF USA Real Estate,
LLC in connection with the Teachers Insurance and Annuity Association
of America mortgage loan financing.
7. Guaranty by LTF USA Real Estate, LLC, dated June 14, 2001, to Teachers
Insurance and Annuity Association of America of the indebtedness of LTF
Michigan Real Estate, LLC and LTF Minnesota Real Estate, LLC in
connection with the Teachers Insurance and Annuity Association of
America mortgage loan financing.
8. Operating Agreement of LIFE TIME, BSC Land, DuPage Health Services
Fitness Center - Bloomingdale, L.L.C., dated December 1, 1999, by and
among LIFE TIME FITNESS, Inc., Bloomingdale Sports Center Land Company,
and Central DuPage Health.
5.9-1
SCHEDULE 9.21
LEASED EQUIPMENT
The following is a listing of all leases of personal property involving payment
remaining to or from the Company:
(Balances as of May 31, 2001)
DESCRIPTION LENDER DESCRIPTION TOTAL
----------------------- ----------------- ---------------------- ------------
Lease Schedule - Master Carlton Financial Equipment $ 578
Lease Schedule #1 Carlton Financial Equipment $ 455
Lease Schedule #2 Carlton Financial Equipment $ 23,796
Lease Schedule #4 Carlton Financial Leasehold Improvements $ 98,688
Lease Schedule #6 Carlton Financial Leasehold Improvements $ 44,173
Lease Schedule #12 Carlton Financial Equipment $ 175,392
Lease Schedule #13 Carlton Financial Equipment $ 65,620
Lease Schedule #14 Carlton Financial Leasehold Improvements $ 10,430
Lease Schedule #15 Carlton Financial Equipment $ 135,359
Lease Schedule #16 Carlton Financial Equipment $ 646,472
Lease Schedule #17 Carlton Financial Leasehold Improvements $ 20,394
Lease Schedule #18 Carlton Financial Equipment $ 290,215
Lease Schedule #19 Carlton Financial Equipment $ 115,266
Lease Schedule #20 Carlton Financial Equipment $ 82,448
Lease Schedule #21 Carlton Financial Equipment $ 240,400
Lease Schedule #22 Carlton Financial Equipment $ 154,241
Lease Schedule #23 Carlton Financial Equipment $ 77,144
Lease Schedule #24 Carlton Financial Equipment $ 86,214
Lease Schedule #25 Carlton Financial Equipment $ 24,202
Lease Schedule #26 Carlton Financial Equipment $ 91,130
Lease Schedule #27 Carlton Financial Equipment $ 57,197
Lease Schedule #28 Carlton Financial Equipment $ 347,003
Lease Schedule #29 Carlton Financial Equipment $ 335,970
Lease Schedule #30 Carlton Financial Equipment $ 123,341
Lease Schedule #31 Carlton Financial Equipment $ 424,252
Lease Schedule #32 Carlton Financial Equipment $ 147,579
Lease Schedule #33 Carlton Financial Equipment $ 228,017
Lease Schedule #34 Carlton Financial Equipment $ 259,556
Lease Schedule #35 Carlton Financial Equipment $ 197,188
Lease Schedule #36 Carlton Financial Equipment $ 167,377
Lease Schedule #37 Carlton Financial Equipment $ 179,210
Lease Schedule #38 Carlton Financial Equipment $ 923,766
Lease Schedule #39 Carlton Financial Equipment $ 273,674
Lease Schedule #40 Carlton Financial Equipment $ 329,920
Lease Schedule #41 Carlton Financial Equipment $ 273,376
Lease Schedule #42 Carlton Financial Equipment $ 712,521
Lease Schedule #43 Carlton Financial Equipment $ 146,283
Lease Schedule #44 Carlton Financial Equipment $ 724,954
Lease Schedule #45 Carlton Financial Equipment $ 264,584
Lease Schedule #46 Carlton Financial Equipment $ 135,924
Lease Schedule #47 Carlton Financial Equipment $ 274,805
Lease Schedule #48 Carlton Financial Equipment $ 283,182
Lease Schedule #49 Carlton Financial Equipment $ 482,727
Lease Schedule #50 Carlton Financial Equipment $ 97,993
Lease Schedule #51 Carlton Financial Equipment $ 149,080
Lease Schedule #52 Carlton Financial Equipment $ 267,593
Lease Schedule #53 Carlton Financial Equipment $ 839,208
Lease Schedule #54 Carlton Financial Equipment $ 163,414
Lease Schedule #55 Carlton Financial Equipment $ 115,736
9.21-1
DESCRIPTION LENDER DESCRIPTION TOTAL
----------------------- ----------------- ------------------ ------------
Lease Schedule #56 Carlton Financial Equipment $ 232,233
Lease Schedule #57 Carlton Financial Equipment $ 166,318
Lease Schedule #58 Carlton Financial Equipment $ 268,108
Lease Schedule #59 Carlton Financial Equipment $ 65,593
Lease Schedule #60 Carlton Financial Equipment $ 162,730
Lease Schedule #61 Carlton Financial Equipment $ 560,110
Lease Schedule #62 Carlton Financial Equipment $ 452,411
Lease Schedule #63 Carlton Financial Equipment $ 463,615
Lease Schedule #64 Carlton Financial Equipment $ 111,543
Lease Schedule #65 Carlton Financial Equipment $ 222,037
Lease Schedule #66 Carlton Financial Equipment $ 268,265
Lease Schedule #67 Carlton Financial Equipment $ 198,305
Lease Schedule #68 Carlton Financial Equipment $ 168,089
Lease Schedule #69 Carlton Financial Equipment $ 379,925
Lease Schedule #70 Carlton Financial Equipment $ 363,822
Lease Schedule #71 Carlton Financial Equipment $ 84,008
Lease Schedule #72 Carlton Financial Equipment $ 1,053,089
Lease Schedule #73 Carlton Financial Equipment $ 244,112
Lease Schedule #74 Carlton Financial Equipment $ 159,957
Lease Schedule #75 Carlton Financial Equipment $ 500,040
Lease Schedule #76 Carlton Financial Equipment $ 137,796
Lease Schedule #77 Carlton Financial Equipment $ 73,055
Lease Schedule #78 Carlton Financial Equipment $ 58,334
Lease Schedule #79 Carlton Financial Equipment $ 94,784
Lease Schedule #80 Carlton Financial Equipment $ 161,727
Lease Schedule #81 Carlton Financial Equipment $ 507,042
Lease Schedule #82 Carlton Financial Equipment $ 473,595
Lease Schedule #83 Carlton Financial Equipment $ 415,895
Lease Schedule #84 Carlton Financial Equipment $ 532,861
Lease Schedule #85 Carlton Financial Equipment $ 537,788
Lease Schedule #86 Carlton Financial Equipment $ 346,251
Lease Schedule #87 Carlton Financial Equipment $ 533,571
Lease Schedule #88 Carlton Financial Equipment $ 281,182
Lease Schedule #89 Carlton Financial Equipment $ 528,404
Lease Schedule #90 Carlton Financial Equipment $ 358,226
Lease Schedule #91 Carlton Financial Equipment $ 117,521
Lease Schedule #92 Carlton Financial Equipment $ 145,513
Lease Schedule #93 Carlton Financial Equipment $ 568,664
Lease Schedule #94 Carlton Financial Equipment $ 468,017
Lease Schedule #95 Carlton Financial Equipment $ 348,870
Lease Schedule #96 Carlton Financial Equipment $ 201,395
Lease Schedule #97 Carlton Financial Equipment $ 133,990
Lease Schedule #98 Carlton Financial Equipment $ 198,690
Lease Schedule #99 Carlton Financial Equipment $ 207,465
Lease Schedule #100 Carlton Financial Equipment $ 747,636
Lease Schedule #101 Carlton Financial Equipment $ 286,540
Lease Schedule #102 Carlton Financial Equipment $ 549,205
Lease Schedule #103 Carlton Financial Equipment $ 532,867
Lease Schedule #104 Carlton Financial Equipment $ 200,216
Lease Schedule #105 Carlton Financial Equipment $ 504,007
Lease Schedule #106 Carlton Financial Equipment $ 871,550
Lease Schedule - Master Dell Financial Computer Equipment $ 9,355
Lease Schedule #3 Dell Financial Computer Equipment $ 12,565
Lease Schedule #5 Dell Financial Computer Equipment $ 1,200
Lease Schedule #6 Dell Financial Computer Equipment $ 1,854
Lease Schedule #7 Dell Financial Computer Equipment $ 1,771
Lease Schedule #8 Dell Financial Computer Equipment $ 368
Lease Schedule #9 Dell Financial Computer Equipment $ 4,808
9.21-2
DESCRIPTION LENDER DESCRIPTION TOTAL
------------------- -------------- ------------------ ------------
Lease Schedule #10 Dell Financial Computer Equipment $ 13,656
Lease Schedule #11 Dell Financial Computer Equipment $ 918
Lease Schedule #12 Dell Financial Computer Equipment $ 3,848
Lease Schedule #13 Dell Financial Computer Equipment $ 4,890
Lease Schedule #14 Dell Financial Computer Equipment $ 5,290
Lease Schedule #15 Dell Financial Computer Equipment $ 2,380
Lease Schedule #16 Dell Financial Computer Equipment $ 3,575
Lease Schedule #17 Dell Financial Computer Equipment $ 3,843
Lease Schedule #19 Dell Financial Computer Equipment $ 5,691
Lease Schedule #20 Dell Financial Computer Equipment $ 9,614
Lease Schedule #21 Dell Financial Computer Equipment $ 7,845
Lease Schedule #22 Dell Financial Computer Equipment $ 15,022
Lease Schedule #23 Dell Financial Computer Equipment $ 6,193
Lease Schedule #25 Dell Financial Computer Equipment $ 32,465
Lease Schedule #28 Dell Financial Computer Equipment $ 1,946
Lease Schedule #29 Dell Financial Computer Equipment $ 6,924
Lease Schedule #30 Dell Financial Computer Equipment $ 6,956
Lease Schedule #31 Dell Financial Computer Equipment $ 13,970
Lease Schedule #32 Dell Financial Computer Equipment $ 7,094
Lease Schedule #33 Dell Financial Computer Equipment $ 25,038
Lease Schedule #35 Dell Financial Computer Equipment $ 81,514
Lease Schedule #36 Dell Financial Computer Equipment $ 11,681
Lease Schedule #37 Dell Financial Computer Equipment $ 5,129
Lease Schedule #38 Dell Financial Computer Equipment $ 11,986
Lease Schedule #40 Dell Financial Computer Equipment $ 6,335
Lease Schedule #41 Dell Financial Computer Equipment $ 34,256
Lease Schedule #43 Dell Financial Computer Equipment $ 11,506
Lease Schedule #45 Dell Financial Computer Equipment $ 3,029
Lease Schedule #46 Dell Financial Computer Equipment $ 521,571
Lease Schedule #47 Dell Financial Computer Equipment $ 5,566
Lease Schedule #48 Dell Financial Computer Equipment $ 2,437
Lease Schedule #49 Dell Financial Computer Equipment $ 19,716
Lease Schedule #50 Dell Financial Computer Equipment $ 7,866
Lease Schedule #51 Dell Financial Computer Equipment $ 12,606
Lease Schedule #52 Dell Financial Computer Equipment $ 8,565
Lease Schedule #53 Dell Financial Computer Equipment $ 17,779
Lease Schedule #55 Dell Financial Computer Equipment $ 17,040
Lease Schedule #56 Dell Financial Computer Equipment $ 5,616
Lease Schedule #305 Dell Financial Computer Equipment $ 151
Lease Schedule #401 Dell Financial Computer Equipment $ 122
Lease Schedule #500 Dell Financial Computer Equipment $ 59,432
Lease Schedule #501 Dell Financial Computer Equipment $ 21,532
Lease Schedule #502 Dell Financial Computer Equipment $ 26,126
Lease Schedule #503 Dell Financial Computer Equipment $ 51,825
Lease Schedule #504 Dell Financial Computer Equipment $ 61,797
Lease Schedule #505 Dell Financial Computer Equipment $ 52,521
Lease Schedule #506 Dell Financial Computer Equipment $ 2,285
Lease Schedule #507 Dell Financial Computer Equipment $ 37,088
Lease Schedule #508 Dell Financial Computer Equipment $ 40,326
Lease Schedule #509 Dell Financial Computer Equipment $ 71,138
Lease Schedule #510 Dell Financial Computer Equipment $ 11,925
Lease Schedule #800 Dell Financial Computer Equipment $ 861
Lease Schedule #801 Dell Financial Computer Equipment $ 2,739
Lease Schedule #802 Dell Financial Computer Equipment $ 292
Lease Schedule #803 Dell Financial Computer Equipment $ 8
Lease Schedule #804 Dell Financial Computer Equipment $ 49
Lease Schedule #805 Dell Financial Computer Equipment $ 56
Lease Schedule #806 Dell Financial Computer Equipment $ 77
9.21-3
DESCRIPTION LENDER DESCRIPTION TOTAL
-------------------- -------------- ----------------------------- ------------
Lease Schedule #807 Dell Financial Computer Equipment $ 60
Lease Schedule #808 Dell Financial Computer Equipment $ 110
Lease Schedule #810 Dell Financial Computer Equipment $ 11
Lease Schedule #814 Dell Financial Computer Equipment $ 66
Lease Schedule #001R Farnam Street Computer and Teleco Equipment $ 190,687
9.21-4
EXHIBIT 4.2(b) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
COMPLIANCE CALCULATION CERTIFICATE
This Certificate is made and delivered by ______________ in his/her
capacity as a Responsible Officer of LIFE TIME FITNESS, Inc., a Minnesota
corporation (the "Borrower"), pursuant to the requirements of Section 4.2(b) of
that certain Second Amended and Restated Credit Agreement, dated as of July 19,
2001, by and among Borrower and Antares Capital Corporation, as agent ("Agent")
for the Lenders (as defined therein) (as it may be amended, restated, modified
or supplemented and in effect from time to time, the "Credit Agreement").
Capitalized terms used herein and not otherwise defined herein are used with the
meanings given such terms in the Credit Agreement.
On behalf of the Borrower, the undersigned hereby certifies to the
Agent that:
(a) the undersigned is familiar with the terms of the Credit
Agreement;
(b) delivered to the Agent concurrently with this Certificate
are the financial statements required by Section [4.1(a) or 4.1(b), as
applicable] of the Credit Agreement, which financial statements have
been prepared in accordance with GAAP on a consistent basis and present
fairly the financial position and results of operations of the entities
covered by such financial statements at the dates thereof and for the
indicated periods then ended subject, in the case of interim
statements, to year-end adjustments and the absence of footnotes;
(c) set forth on the Attachment to this Certificate is are
calculations of the financial covenants in accordance with the
requirements of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
___ day of ________________, ____.
LIFE TIME FITNESS, INC.
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT 4.13
FORM OF RE HOLDINGS LEASE
Algonquin, Illinois Execution draft
LEASE
THIS INDENTURE made and entered into on this 14th day of June, 2001, by
and between FCA REAL ESTATE HOLDINGS, LLC, a Delaware limited liability company,
whose address is 6442 City West Parkway, Suite 300, Eden Prairie, MN 55344
(hereinafter referred to as "Landlord") and LIFE TIME FITNESS, Inc., formerly
known as FCA, Ltd., a Minnesota corporation, whose address is 6442 City West
Parkway, Suite 300, Eden Prairie, MN 55344 (hereinafter referred to as
"Tenant").
WITNESSETH:
ARTICLE I - GRANT AND TERM
1.1 DEMISED PREMISES. In consideration of the rents, covenants and
agreements herein reserved and contained on the part of Tenant to be performed,
Landlord does hereby lease to Tenant the parcel of land located in the Village
of Algonquin, McHenry County, Illinois, legally described on Exhibit A attached
hereto (hereinafter referred to as the "Demised Premises").
1.2 TERM; COMMENCEMENT DATE; RENT COMMENCEMENT DATE. The term of this
Lease shall commence upon the date hereof (the "Commencement Date") and, unless
earlier terminated as provided herein, shall expire on the first day of the
first month following the tenth (10th) anniversary of the Rent Commencement Date
(as hereinafter defined). Tenant's obligation to pay rent and other charges due
and payable under this Lease shall commence on the earliest of (a) the first day
of the months following the month in which a certificate of occupancy for the
Demised Premises is issued by the Village of Algonquin, Illinois (b) the date
Tenant begins to conduct business in the Demised Premises; (c) the first day of
the first month following the "Conversion Date" (as defined in the Loan
Agreement (as hereinafter defined)) (such earliest date being the "Rent
Commencement Date"); provided, however, that if the date described in
subparagraph (b) above is other than the first day of a month, the first month's
installment of Minimum Rent, Rebatable Rent, taxes and additional rent shall
include payment for the period which commences on the day before the Rent
Commencement Date, which Minimum Rent, Rebatable Rent, taxes and additional rent
shall be that proportion of Minimum Rent, Rebatable Rent, taxes and additional
rent for one Lease Year, as defined below, which the number of days in such
period bears to 365.
ARTICLE II - RENT
2.1 MINIMUM RENT AND REBATABLE RENT. On and after the Rent Commencement
Date, Tenant agrees to pay to Landlord at 6442 City West Parkway, Suite 300,
Eden Prairie, MN 55344 or at such other place as the Landlord may from time to
time designate
1
in writing, Minimum Rent for the Demised Premises in an amount equal to the
then-current annual debt service of principal and interest on the loan from the
Series J Loan made by the Series J Lenders party to that certain Series J Loan
Supplement to Amended and Restated Master Construction and Term Loan Agreement
dated as of even date herewith, among Landlord, U.S. BANK NATIONAL ASSOCIATION,
a national banking association, acting in its capacity as the administrative
bank (in such capacity, the "Administrative Bank"), the Collateral Agent and the
"Lenders" now or hereafter parties thereto (each a "Series J Lender" and
collectively the "Series J Lenders"), supplementing that certain Amended and
Restated Master Construction and Term Loan Agreement dated as of July 17, 2000
(the Amended and Restated Master Construction and Term Loan Agreement as so
supplemented and as it may be further amended, modified, supplemented or
restated from time to time being the "Loan Agreement") among the Landlord, the
Administrative Bank and the "Lenders" now or hereafter parties thereto (each a
"Lender" and collectively the "Lenders"), payable in twelve (12) equal monthly
installments in advance on the Rent Commencement Date and on the first of each
month thereafter, without deduction or set-off; provided, that with respect to
any Lease Year which is more or less than 12 months or any partial month,
Minimum Rent shall be adjusted accordingly. "Lease Year" is defined as the
period of time from the Rent Commencement Date to the end of the month in which
the first anniversary of the Rent Commencement Date shall occur, and each twelve
(12) month period thereafter. In addition to Minimum Rent, an amount equal to
twenty-five percent (25%) of the aforementioned Minimum Rent shall be paid to
Landlord hereunder, payable in equal monthly installments along with Minimum
Rent, which additional amount is herein referred to as the "Rebatable Rent."
Provided that the Lease has not been terminated and subject to the provisions of
the loan documents secured by the first mortgage on the Demised Premises as to
the amount of the Rebatable Rent which can be rebated to Tenant and as when such
rebate may be paid, Landlord shall rebate to Tenant, without interest, all
Rebatable Rent previously paid by Tenant to Landlord during said calendar year.
Said Rebatable Rent shall not be deemed an advance payment of rent and Landlord
shall have the right to commingle said funds with other fiends of Landlord. As
soon as possible after the Conversion Date (as defined in the Loan Agreement),
Landlord and Tenant shall execute an amendment to this Lease setting forth the
specific amount of the Minimum Rent and Rebatable Rent payable under this Lease.
Notwithstanding anything to the contrary set forth herein, the first monthly
installment of Minimum Rent and Rebatable Rent is due and payable on the first
day of the first month following the Conversion Date as defined in the Loan
Agreement.
2.2 ADDITIONAL RENT. Any other charges to be paid by the Tenant
pursuant to the provisions of any other sections of this Lease shall be
designated as "additional rent". For convenience, Tenant may include payment for
such charges and the Minimum Rent in one monthly check, provided all "additional
rent" items are shown separately from Minimum Rent thereon. Such "additional
rent" shall not for any reason be considered as Minimum Rent as hereinabove
defined. Failure of Tenant to pay "additional rent" shall give Landlord the
right to declare an event of default.
2.3 RENT DELINQUENCIES. Should the Tenant, for any reason whatsoever,
fail to pay, when the same is due and payable, any Minimum Rent, Rebatable Rent,
and/or "additional rent" and should said rent not be paid within ten (10) days
of due date, Tenant shall pay a late penalty equal to five percent (5%) of total
rents due. In addition, all unpaid rents shall bear interest from the date due
to the date of payment at the rate of two percent (2%) per annum in
2
excess of the prime rate as quoted by U.S. Bank National Association to its best
customers, or the highest rate permitted by law, whichever is less.
2.4 TRIPLE NET LEASE. Notwithstanding any contrary provision contained
herein, this Lease shall be deemed a "triple net" lease and all costs relating
to ownership or operation of the Demised Premises, excluding debt service on any
mortgage on the Demised Premises, shall be solely the responsibility of Tenant
and not Landlord. Without limiting the foregoing, Tenant shall be responsible
for any common area, maintenance or similar costs or charges to which the
Demised Premises is subject or any license or rental fees for any parking rights
benefiting the Demised Premises.
ARTICLE III - TAXES
3.1 TAXES. Tenant shall pay before delinquent all real estate taxes and
installments of special assessments with respect to the Demised Premises due and
payable during the term of this Lease. Such taxes and special assessments shall
be prorated for the first and last years of the term of this Lease.
ARTICLE IV - USE OF PREMISES
4.1 TENANTS USE. During the term of this Lease, the Demised Premises
shall be used solely for the purpose of operation of a health and fitness club,
including related or accessory uses, including, but not limited to, day care,
health bar/cafe, physical therapy, medical services, day spa, hair salon, sales
of clothing and fitness equipment and offices and for no other purpose without
prior written consent of Landlord.
4.2 COMPLIANCE WITH LAWS AND REGULATIONS.
(a) Tenant covenants and agrees that at all times during the term
hereof it will maintain and conduct its business insofar as the same relates to
the occupancy of the Demised Premises in such a manner and under such
regulations that are in strict compliance with any and an applicable
governmental and/or quasi-governmental laws, rules, regulations and orders, as
well as any and all applicable provisions of insurance underwriters at the
Demised Premises and the Declaration. Tenant shall defend, indemnify and hold
harmless Landlord, Landlord's insurer, Landlord's lender, from time to time, and
the property of Landlord against any and all claims or losses or actions or
causes of action resulting from Tenant's failure to comply with said laws,
rules, regulations and orders and underwriting provisions.
(b) Tenant hereby agrees to maintain the premises and operate its
business in accordance with the ADA (the Americans With Disabilities Act (ADA),
codified at 42 U.S. SS 12101 et seq.) Failure to do so shall operate as an event
of default and a breach of the Lease. Among other requirements that may apply to
the Demised Premises, Title III of the ADA requires owners and tenants of
"public accommodations" to remove barriers in order to allow access by disabled
persons and to provide auxiliary aids and services for hearing, vision or speech
impaired persons. Detailed regulations can be found at 28 C.F.R. Part 36
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4.3 CHANGE OF NAME. Tenant agrees not to change the name of the
business operated in the Demised Premises without the consent of the Landlord,
which consent shall not be unreasonably withheld.
4.4 AFFIRMATIVE COVENANTS OF TENANT. Without in any way limiting or
restricting other covenants of Tenant elsewhere in this Lease contained, the
Tenant affirmatively covenants and agrees as follows:
(a) Tenant shall neither permit or suffer and conduct, noise, odor or
other nuisance in, on or about said Demised Premises to annoy or disturb any
persons occupying adjacent premises or common areas;
(b) Tenant shall keep the Demised Premises, including all service
and/or loading areas for the Demised Premises, free from all litter, dirt and
obstructions;
(c) Tenant shall arrange for and accept deliveries only at such times,
in the areas, and through the entrances designated for such purpose by Landlord;
(d) Tenant shall keep said Demised Premises clean and in the sanitary
condition required by ordinance and regulations of any governmental or
quasi-governmental unit having jurisdiction;
(e) Tenant shall neither permit nor suffer the Demised Premises, or the
walls, ceilings or floors thereof to be endangered by overloading;
(f) Tenant shall properly maintain the HVAC system in the Demised
Premises, including, at the option of the Landlord, subscribing to a service
selected by the Landlord for such maintenance and paying the fees therefor;
(g) Tenant shall not use or permit the Demised Premises to be used for
any purpose or purposes other than that set forth in Section 4.1 hereof;
(h) Tenant will control its patrons to prevent drunken, unruly or
obnoxious behavior.
ARTICLE V - MAINTENANCE AND REPAIRS
5.1 TENANT'S MAINTENANCE AND REPAIRS. Tenant agrees that, from and
after the date that possession of the Demised Premises is delivered to the
Tenant, and until the end of the term hereof it will be responsible for all
repairs, maintenance and replacements to the Demised Premises including, but not
limited to: the interior and exterior portions of all doors, windows, plate
glass, locks, frames, hardware and showcases surrounding and incorporated into
the Demised Premises; the mechanical plumbing, heating, air conditioning and/or
cooling, ventilating and electrical equipment and systems; partitions, and all
other fixtures, appliances and facilities furnished by Landlord or Tenant.
Tenant shall not, however, be responsible for repair of any damage caused by any
negligence of Landlord, its employees or agents. except where such damage is
covered by the Tenant's insurance coverage. Tenant shall be required to pay for
any structural repairs or alterations which may be required by governmental
rules, orders or regulations. During reasonable business hours, Landlord may
inspect the Demised Premises to
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insure Tenant's compliance with the above and foregoing requirements. Tenant
accepts the Demised Premises as being in good and sanitary order, condition and
repair.
5.2 SURRENDER OF PREMISES. At the expiration or termination of this
Lease, Tenant shall surrender the Demised Premises in the same condition as
existed on the commencement date of this Lease, ordinary wear and tear excepted.
All fixtures which have become attached shall be part of the Demised Premises,
except trade fixtures. At the expiration or termination of this Lease, title to
all fixtures, equipment and the like left on the Demised Premises shall pass
from Tenant to Landlord as by bill of sale. Further, within ninety (90) days
prior to the expiration of the term, Landlord shall during reasonable business
hours, have the right to show the Demised Premises to third parties for the
purposes of again leasing same.
ARTICLE VI - INTENTIONALLY OMITTED
ARTICLE VII - INTENTIONALLY OMITTED
ARTICLE VIII - UTILITIES
8.1 CHARGES. Tenant shall pay for all utility services including gas,
electricity, domestic water, sewer, hot water for heating and ventilating,
chilled water for cooling and ventilating the Demised Premises and all other
utility services furnished the Tenant for use in the Demised Premises or to
operate any of Tenant's signs.
8.2 SUPPLY OF UTILITY SERVICES. Landlord shall not be liable in any way
to Tenant for any failure or defect in the supply or character of electricity,
water, sewer, communication or data services or gas furnished by reason of any
change, requirement, act, neglect or omission of the public utility serving the
Demised Premises or for any reason not attributed to Landlord.
8.3 INTERRUPTION OR DISCONTINUANCE OF LANDLORD'S SERVICE. Tenant agrees
that Landlord shall not be liable for failure to supply any service when
Landlord uses reasonable diligence to supply the same, it being understood that
Landlord reserves the right to temporarily discontinue such services, or any of
them, at such times as may be necessary by reason of accident, unavailability of
employees, failure of supply, repairs, alterations or improvements, or by reason
of fire, strikes, flood, lockouts, riots, acts of God or any other happening
beyond the reasonable control of Landlord. When Landlord causes services to be
rendered by independent third parties, Landlord shall have no liability for the
performance thereof or liability therefor.
8.4 GARBAGE AND REFUSE COLLECTION. All garbage and refuse shall be kept
in containers and shall be placed outside of the Demised Premises prepared for
processing and/or collection.
ARTICLE IX - ALTERATIONS
9.1 ALTERATIONS. Tenant may, from time to time during the term, make,
at its own cost and expense, any alterations or changes in the interior of the
Demised Premises in good and workmanlike manner in compliance with all
applicable requirements of law, provided Tenant
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follows the notice procedure and obtains Landlord's consent where required, all
in accordance with this Article. Landlord agrees to cooperate with Tenant for
the purpose of securing necessary permits for any changes, alterations, or
additions permitted under this section without expense to the Landlord. Upon
completion of such alterations, Tenant shall present to Landlord a copy of the
endorsement to Tenant's fire and extended coverage insurance policy which
endorsement shall incorporate said alterations into the policy. All costs of any
such work shall be paid promptly by Tenant so as to prevent the assertion of any
hens for labor or materials. Tenant agrees to advise Landlord in writing of the
date upon which such alterations will commence in order to permit Landlord to
post notice of non-responsibility.
9.2 NOTICE TO LANDLORD. Prior to the initiation of any alterations,
Tenant shall give Landlord written notice thereof and specify the work to be
performed in reasonable detail and include the names of the contractors and
materialmen to be utilized. After receipt of said notice, Landlord shall have a
reasonable period of time during which it shall make a determination, in its
sole discretion, as to whether or not the proposed work would create a
structural or design change at the Demised Premises. Tenant shall provide
Landlord upon request with an further information reasonably necessary for such
determination by Landlord and Tenant shall not commence work or accept materials
prior to receiving written notice of Landlord's determination. If Landlord
determines that the proposed work would create a structural or design change,
then the same must be approved in writing by Landlord prior to the commencement
of any work or the delivery of any materials therefor.
ARTICLE X - PUBLIC LIABILITY
10.1 TENANT'S LIABILITY INSURANCE. Tenant shall during the entire term
hereof keep in full force and effect insurance upon all glass and plate glass in
the Demised Premises and a policy of commercial general liability and property
damage insurance with respect to the Demised Premises, and the business operated
by Tenant and any sublessees with respect to the Demised Premises, in which the
limits of public liability shall not be less than $500,000 per person and
$500,000 per accident and in which the property damage liability shall not be
less than $500,000. The policy shall name Landlord as additional insured and
shall contain clauses that losses shall be payable notwithstanding any act or
negligence of the insured which might otherwise result in forfeiture of said
insurance, and that the insurer will not cancel or change the insurance without
first giving the Landlord thirty (30) days prior written notice. The insurance
shall be with an insurance company approved to do business in Illinois and
reasonably acceptable to Landlord. Tenant shall deliver a copy of the policy or
a certificate of insurance to Landlord prior to taking possession of the Demised
Premises, and a renewal certificate at least thirty (30) days prior to the
expiration of any policy term. Notwithstanding the foregoing, the limits of
insurance required by this section shall not be less than the amount required by
Landlord's lender, as such amount may be adjusted from time to time.
10.2 INDEMNIFICATION. Except for claims arising out of the willful or
negligent act of the Landlord or its representatives, Tenant shall indemnify and
defend Landlord, its officers, agents, and employees, against all claims,
expenses and liabilities incurred, including reasonable attorneys' fees, in
connection with loss of life, personal injury, and/or damage to property arising
out of any occurrence in, upon or at the Demised Premises, or the occupancy or
use thereof by
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the Tenant, or occasioned wholly or in part by any act or omission of the
Tenant, its agents, employees, contractors, sublessees, concessionaires or
licensees.
ARTICLE XI - DESTRUCTION AND RESTORATION
11.1 RESTORATION OPTION IF MORE THAN 30% DAMAGED. If the Demised
Premises shall be damaged to the extent of thirty percent (30%) or more of the
cost of replacement thereof or damaged by any uninsured casualty, Landlord shall
have the option to rebuild or to terminate this Lease by exercise of notice to
Tenant given not more year from the date of such damage.
11.2 RESTORATION OPTION IF LESS THAN 30% DAMAGED.
(a) If the demised Premises shall be damaged to the extent of
less than thirty percent (30%) of the cost of replacement by fire or
other casualty covered by Tenant's policy of fire coverage insurance
during the term of this Lease the Minimum Rent herein shall abate as of
the date of the occurrence in accordance with the provisions of Section
11.2(b), and the Landlord shall restore the Demised Premises. If such
an event occurs during the last one (1) year of this Lease, then
Landlord shall have the option to rebuild or terminate this Lease to be
exercised by notice to tenant given not more than six (6) months from
the date of such damage. In the event of a conflict between the
provisions of this Section 11.2(a) and the provisions of a mortgage
granted by Landlord, the provisions of the mortgage shall control and
the terms of this Lease shall be subject to the provisions of such
mortgage.
(b) In the event of such partial destruction or damage whereby
Tenant shall be deprived of occupancy and use for only a portion of the
Demised Premises, then Minimum Rent shall be equitably apportioned
according to the area of the Demised Premises which is unusable by
Tenant from the date of occurrence, until such time as the Demised
Premises are repaired or restored as provided herein.
11.3 TOTAL DESTRUCTION. In the event of total destruction of the
Demised Premises, Tenant's rent shall completely abate from the date of such
destruction. If Landlord elects to rebuild as aforesaid, Tenant's rent shall
completely abate from the date of such destruction until forty five (45) days
after the date when Landlord notifies tenant that the shell of the demised
Premises is ready for commencement of Tenant's work, or upon the day when Tenant
opens for business, whichever event shall first occur.
11.4 TENANTS INSURANCE COVERAGE. Tenant shall carry insurance against
fire and such other risks as are from time to time included in standard extended
coverage insurance for the full insurable value of the Demised Premises. Tenant
shall also carry said insurance for the fill insurable value of Tenant's
merchandise, trade fixtures, furnishings, wall covering, carpeting, drapes,
equipment and all other items of personal property of Tenant located on or
within the Demised Premises. Any insurance policies required to be carried
pursuant to this paragraph shall name Landlord and Landlord's mortgagee or
lender as an additional insured and shall name Landlord and Landlord's mortgagee
or lender as a loss payee, and Tenant shall
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furnish Landlord evidence of such insurance coverage. Such insurance policies
may not be modified or terminated without thirty (30) days advance notice to
Landlord.
11.5 RELEASE. Each party hereto ("Releasing Party") hereby releases the
other ("Released Party") from any liability which the Released Party would, but
for this paragraph, have had to the Releasing Party arising out of or in
connection with any accident or occurrence or casualty:
(a) which is or would be covered by a fire and extended
coverage policy (with vandalism and malicious mischief endorsement
attached) or by a sprinkler leakage or water damage policy in the state
in which the Demised Premises is located regardless of whether or not
such coverage is being carried by the Releasing Party, and
(b) to the extent of recovery under any other casualty or
property damage insurance being carried by the Releasing Party at the
time of such accident or occurrence or casualty, which accident or
occurrence or casualty may have resulted in whole or in part from the
act of neglect of the Released Party, its officers, agents or
employees, provided, however, the release hereinabove set forth shall
become inoperative and null and void if the Releasing Party contracts
for the insurance required to be carried under the terms of this Lease
with an insurance company which:
(1) Takes the position that the existence of such
release vitiates or would adversely affect any policy so
insuring the Releasing Party in a substantial manner and
notice thereof is given to the Released Party, or
(2) Requires the payment of a higher premium by
reason of the existence of such release, unless in the latter
case the Released Party within ten (10) days after notice
thereof from the Releasing Party pays such increase in
premium; provided further, however, that such releases are
effective only to the extent that they can be effected on a
mutual and reciprocal basis without vitiating or otherwise
adversely affecting either the Landlord's or the Tenant's
insurance coverage.
11.6 PROTECTION FROM SUBROGATION. Anything in this Lease to the
contrary notwithstanding, neither Landlord nor Tenant shall be liable to the
other for any business interruption or any loss or damage to property or injury
to or death of persons occurring on the Demised Premises or the adjoining of
properties, mall areas, sidewalks, streets or alleys, or in any manner growing
out of or connected with Tenant's use and occupation of the Demised Premises, or
the condition thereof or of mall areas, sidewalks, streets or alleys adjoining,
caused by the negligence or other fault of Landlord or Tenant or of their
respective agents, employees, subtenants, licensees or assignees to the extent
that such business interruption or loss or damage to property or injury to or
death of person is covered by or indemnified by proceeds received from insurance
carried by other party (regardless of whether such insurance is payable to or
protects Landlord or Tenant or both) or for which such party is otherwise
reimbursed; and Landlord and Tenant each hereby respectively waive all rights of
recovery against the other, its agents, employees, subtenants, licensees and
assignees, for any such loss or damage to property or injury to or death of
persons to the extent the same is covered or indemnified by proceeds
8
received from any such insurance, or for which reimbursement is otherwise
received; provided, however, that such waivers are effective only to the extent
that they can be effected on a mutual and reciprocal basis without vitiating or
otherwise adversely affecting either the Landlord's or the Tenant's insurance
coverage. Landlord's and Tenant's respective policies of insurance shall each
contain a waiver of subrogation provision incorporating the above covenant and
providing that the insurance shall not be invalidated by the insured's written
waiver prior to a loss of any or all right of recovery against any party for any
insured loss; provided, however, that such waivers are effective only to the
extent that they can be effected on a mutual and reciprocal basis without
vitiating or otherwise adversely affecting either the Landlord's or the Tenant's
insurance coverage. It is expressly understood that Landlord shall not be liable
to Tenant for any damages incurred by the latter as a result of the above and
foregoing events; save and except as to any such damages caused by the willful
or wanton conduct of Landlord, its agents or employees, provided such damages
are not recoverable by Tenant pursuant to the insurance policies required to be
provided by Tenant under this Lease or otherwise.
11.7 ADDITIONAL HAZARDS. Tenant covenants and agrees that it will not
do or permit anything to be done in or upon the Demised Premises or bring in
anything or keep anything therein which shall cause the cancellation of Tenant's
insurance policies, or increase the rate of insurance, on the Demised Premises,
above the standard shopping center rate on said premises and buildings. Tenant
further agrees that in the event it shall do anything to so increase the
insurance rate, Tenant shall promptly pay to Landlord on demand any such
increase resulting therefrom, which shall be due and payable as "additional
rent" hereunder. At Tenant's request, Landlord shall make available for Tenant's
inspection during regular business hours, all documents pertaining to Landlord's
calculation of Tenant's "additional rent" required under this section. Said
"additional rent" shall be due and payable as billed by Landlord.
11.8 NOTICE. Tenant shall give immediate written notice to Landlord and
Landlord's Mortgagee of any damage caused to the demised Premises by fire or
other casualty; or of any cancellation or reduction of Tenant's insurance
coverage required pursuant to this Lease.
11.9 ABATEMENT. Tenant agrees that during any period of reconstruction
or repair of the Demised Premises. it will continue the operation of its
business within the Demised Premises to the extent practicable. If Landlord is
required to repair and rebuild, then during the period from the occurrence of
the casualty until Landlords repairs are completed, the Minimum Rent set forth
herein shall be reduced to such extent as may be fair and reasonable under the
circumstances; however, there shall be no abatement of the other charges
provided for herein.
ARTICLE XII - EMINENT DOMAIN
12.1 PARTIAL OR TOTAL CONDEMNATION. If the whole or any part of the
Demised Premises or the structure encompassing same shall be taken by any public
authority under the power of eminent domain, the Tenant shall have no claim to,
nor shall Tenant be entitled to, any portion of any award, for damages or
otherwise. In the event only a portion of the Demised Premises are taken, the
Lease shall terminate as to the part taken, and the rent and other charges
herein reserved shall be adjusted for the remainder of the Demised Premises so
that the Tenant shall be required to pay for the balance of the term that
portion of the rent reserved which the value of
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the part of the Demised Premises remaining after condemnation bears to the value
of the Demised Premises immediately prior to the date of condemnation. The
rental and other charges shall be apportioned as aforesaid by agreement between
the parties or by arbitration or legal proceedings, but pending such
determination the Tenant shall pay at the time and in the manner above provided
the rental herein reserved and all other charges herein required to be paid by
the Tenant, without deduction, and upon such determination, the Tenant shall be
entitled to credit for any excess rentals paid. If, however, by reason of the
condemnation there is not sufficient space left in the Demised Premises for the
Tenant to reasonably conduct business; then, in such event, the Lease shall
terminate. Although all damages in the event of condemnation belong to Landlord
whether awarded as compensation for diminution in value of the leasehold or to
the fee of the leased premises, nothing herein shall be construed to prevent
Tenant to claim and recover from the condemning authority such compensation as
may be separately awarded or recoverable by Tenant in Tenant's own right for its
leasehold interest. In the event of a conflict between the provisions of this
Section 12.1 and the provisions of a mortgage granted by Landlord, the
provisions of the mortgage shall control and the terms of this Lease shall be
subject to the provisions of such mortgage.
ARTICLE XIII - ASSIGNMENT AND SUBLETTING
13.1 CONSENT REQUIRED. Tenant may not assign this Lease and/or sublet
the Demised Premises, or any part thereof without in each instance obtaining the
prior written consent of the Landlord, which consent shall not be unreasonably
withheld. The consent by Landlord to any assignment or subletting may not
constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. This prohibition against assigning or subletting shall
be construed to include a prohibition against any assignment or subletting by
operation of law and shall also include any transfer or conveyance of the
corporate stock of Tenant. If this Lease be assigned, or if the Demised Premises
or any part thereof be underlet or occupied by anybody other than Tenant,
Landlord may collect rent from the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein reserved, but no such assignment,
under-letting, occupancy or collection shall be deemed a waiver of this
covenant, or the acceptance of the assignee, under-tenant or occupancy as
Tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. Notwithstanding any assignment
or sublease, Tenant shall remain fully liable on this Lease and shall not be
released from performing any of the terms, covenants, and conditions of this
Lease. Tenant shall pay to Landlord any reasonable costs and expenses (including
legal fees incurred by Landlord in connection with such assignment or
subletting. Notwithstanding the foregoing, Tenant shall have the right, without
obtaining the Landlord's consent, to sublet portions of the Demised Premises for
use as physical therapy, day care, health cafe, day spa, hair salon, and sale of
clothing and fitness equipment; provided that no such sublease shall be for more
than 2,500 square feet or, in the case of day care, 10,000 square feet.
ARTICLE XIV - TENANT'S DEFAULT
14.1 EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay when due any installment of rent
(including, without limitation, Minimum Rent or Rebatable Rent), or
other charges provided herein,
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or any portion thereof and the same shall remain unpaid for a period of
ten (10) days after the same has become due; or
(b) Tenant shall for reasons other than those specifically
permitted in this Lease, cease to conduct its normal business
operations in the Demised Premises or shall vacate or abandon the
Demised Premises. Tenant will be deemed to have vacated, closed or
abandoned the Demised Premises if it fails to conduct its business on
the Demised Premises during regular working hours for a period or more
than ten (10) consecutive business days; or
(c) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises; and does not cause said lien
as to Landlord's interest in the property to be released within ten
(10) days after written notice from Landlord; or
(d) Any representation or warranty made in writing to Landlord
in this Lease or in connection with the making of this Lease, by Tenant
or any guarantor, shall prove at any time to have been incorrect in any
material respect when made or becomes incorrect; or
(e) Tenant or any guarantor shall make an assignment for the
benefit of creditors, for a petition in bankruptcy, be adjudicated
insolvent or bankrupt or admit in writing the inability to pay debts as
they mature, petition or apply to any tribunal for the appointment of a
receiver, trustee or similar officer for Tenant or any guarantor or a
substantial part of the assets of Tenant or any guarantor, or shall
commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect; or if
there shall have been filed any such petition or application, or any
such proceeding shall have been commenced against Tenant or any
guarantor, which remains undismissed for a period of thirty (30) days
or more; or Tenant or any guarantor by any act or omission shall
indicate their consent to, approval of or acquiescence in any such
petition, application or proceeding, or the appointment of a receiver
of or any trustee or similar officer for Tenant or any guarantor or any
substantial part of any of the properties of Tenant or any guarantor,
or shall suffer any such receivership or trusteeship to continue
undischarged for a period of thirty (30) days or more; or any judgment,
writ, warrant or attachment or execution or similar process shall be
issued or levied against a substantial part of the property of Tenant
or any guarantor and such judgment, writ, or similar process shall not
be released, vacated or fully bonded within thirty (30) days after its
issue or levy; or
(f) Tenant shall have failed to comply with any other
provisions of this Lease and shall not cure any failure within thirty
(30) days, or such longer period of time as may be reasonably required
to cure such default, after Landlord, by written notice, has informed
Tenant of such noncompliance.
14.2 LANDLORD'S REMEDIES. Upon the occurrence of any of the
above-lettered events of default, Landlord may elect to either (1) terminate
this Lease; or (2) terminate Tenant's right to possession only without
terminating this Lease, hereinafter referred to as re-entry;
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(3) pursue any other remedy available at law or in equity. Landlord shall have
all remedies provided in the Lease and under governing law. All of the remedies
given to Landlord in this Lease or by law shall be cumulative, and the exercise
of one right or remedy by landlord shall not impair its right to exercise any
other right or remedy.
In the event of election under (2) above to terminate Tenant's right to
possession only, Landlord may, at Landlord's option, proceed to demand
possession by notice and proceeding under the Unlawful Detainer Law of Illinois
and take and hold possession thereof without such proceeding or entry into
possession terminating this Lease or releasing Tenant in whole or in part from
Tenant's obligation to pay the rent hereunder for the full term. Upon re-entry
Landlord may remove all personal property from the Demised Premises and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Tenant, all without service of notice or resort
to legal process and without being deemed guilty of trespass, or becoming liable
for any loss or damage which may be occasioned thereby. Upon and after entry
into possession without termination of the Lease, Landlord shall use reasonable
efforts to relet the premises, or any part thereof for the account of Tenant, to
any other person, firm or corporation, for such rent and other charges for such
time and upon such terms as Landlord, in Landlord's sole subjective discretion
shall determine, but Landlord shall not be required to accept any potential
tenant offered by Tenant or to observe any instruction given by Tenant about
such reletting. Landlord may make repairs or redecorate the premises to the
extent deemed by the Landlord necessary or commercially reasonable.
Notwithstanding any action of possession or re-entry into the Leased Premises by
the Landlord as permitted in this Article, or termination of this Lease as
permitted under Article XIV, it is stipulated and agreed that tenant shall
remain liable to Landlord for damages for breach of this Lease and of Tenant's
covenants hereunder in an amount equal to the total of the following:
(a) All fixed Minimum Rent, additional rent, late charges,
additional rent payable for taxes and otherwise, and any and all other
charges payable by Tenant hereunder or under other agreements with the
Landlord due for the period prior to the date of termination of this
Lease or re-entry but unpaid, together with additional late charges
from due date until paid; PLUS
(b) All costs and expenses incurred by Landlord in connection
with re-entry and repossession of the Leased Premises, the repair,
renovation, remodeling, or redecoration thereof to the state required
by this Lease upon termination or as may be necessary for reletting,
and any broker's commissions, attorneys' fees, and other charges
incurred in connection therewith or in connection with reletting the
Leased Premises, including attorneys' fees, expended in the collection
of any Rents; PLUS
(c) A sum equal to the present value of all Rents which would
have been payable hereunder after the date of termination or re-entry
for the balance of the term of the Lease had the Lease not been
terminated or re-entry made, together with interest thereon at the rate
of two percent (2%) per annum in excess of the prime rate as quoted by
U. S. Bank National Association to its best customers, or the highest
rate permitted by law, whichever is less from due date until paid,
PROVIDED THAT, in the event the Demised Premises are relet (which
reletting shall in no event relieve or release Tenant of or from
liability for damages hereunder) for all or any part of the balance of
the original
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term hereof then, for each month during such reletting for which
Landlord receives net avails of such reletting, Tenant shall be
entitled to a credit against its liability to Landlord for such month
in an amount equal to such net avails, and PROVIDED FURTHER that, in
lieu of damages as set forth in the foregoing provisions of this
Section, Landlord may waive such foregoing provisions and elect, by
written notice to Tenant within ninety (90) days after termination or
re-entry, to receive forthwith as liquidated damages for such breach,
in addition to the amounts specified above, a sum equal to fifteen
percent (15%) of the Rents which would have been due and payable for
the portion of the balance of the term of the Lease from the date of
early termination or re-entry through the final lease year.
14.3 COSTS, EXPENSES AND ATTORNEYS FEES. If one party is required to
seek legal counsel for collection or to commence litigation or arbitration in
order to enforce the covenants and agreements in this Lease, the party
prevailing in such collection, litigation or arbitration shall have the right to
reimbursement from the other party of all reasonable costs, expenses and
attorney's fees.
ARTICLE XV - ESTOPPEL CERTIFICATE, ATTORNMENT AND SUBORDINATION
15.1 ESTOPPEL CERTIFICATE. Within ten (10) days after the request by
Landlord, tenant shall deliver to Landlord a written and acknowledged statement
certifying that Landlord has completed construction of the Demised Premises,
that tenant has accepted possession of the Demised Premises, that this Lease is
unmodified and in fun force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), the commencement date and termination date of the Lease, that
Landlord is not in default under the Lease (or, if there is a default, stating
specifically the default) and the dates to which the Minimum Rent and other
charges have been paid in advance, if any, it being intended that any such
statement delivered pursuant to this Article may be relied upon by any
prospective purchaser or mortgagee of the fee of the Demised Premises.
15.2 ATTORNMENT. Upon request of Landlord, Tenant shall in the event
any proceedings are brought for the foreclosure of or in the event of exercise
of the power of sale under any mortgage made by Lessor covering the Demised
Premises, attorn to the purchaser upon any such foreclosure or sale and
recognize such purchaser as Landlord under this Lease.
15.3 ATTORNEY-IN-FACT. Tenant, upon request of any party in interest,
shall execute promptly such instruments or certificates to carry out the intent
of sections 16.1, 16.2, and 16.3 above. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact for Tenant with full power and authority to execute
and deliver in the name of Tenant any such instruments or certificates.
15.4 SUBORDINATION. This Lease is, and shall be, subordinate to any
ground leases or to the lien of any mortgage or mortgages, or the lien resulting
from any other method of financing or refinancing, now or hereafter in force
against the land and/or buildings of which the Demised Premises are a part or
against any buildings hereafter placed upon the land of which the Demised
Premises are parts, and to all advances made or hereafter to be made upon the
security
13
thereof, provided Tenant is granted non-disturbance rights, on the standard form
of the entity providing such financing.
15.5 RECORDATION. This Lease shall not be recorded without the prior
consent of Landlord. Upon the request of Landlord, Tenant shall execute a short
form of this Lease which may be recorded in Landlord's sole discretion.
15.6 NOTICE TO MORTGAGEE. After receiving written notice from any
person, firm or other entity that it holds a mortgage (which term shall include
a deed of trust) which includes as part of the mortgaged property the Demised
Premises, Tenant shall so long as such mortgage is outstanding be required to
give to such holder a duplicate notice of any notice required to be given to
Landlord by this Lease. It is further agreed that such holder shall have the
same opportunity to cure any default, and the same time within which to effect
such curing, as is available to Landlord; and if necessary to cure such a
default, such holder shall have access to the Demised Premises.
ARTICLE XVI - LANDLORD DEFAULT
16.1 DEFAULT NOTICE TO LANDLORD. Should Landlord default in the
performance of any of the covenants on the part of the Landlord to be kept or
performed and such default shall continue for thirty (30) days after written
notice to Landlord from Tenant specifying such default, or should any warranty
or representation made by Landlord be untrue and remain untrue after thirty (30)
days after written notice from Tenant specifying such untruth, then and only in
such event, shall termination of this Lease be effected or action taken or
remedy pursued. If the default or untruth is of such character so as to require
more than thirty (30) days to remedy, the Landlord shall have a reasonable
period in which to remedy the same, provided Landlord is proceeding diligently.
Tenant waives its right to make repairs at Landlord's expense.
ARTICLE XVII - MISCELLANEOUS PROVISIONS
17.1 HOLDING OVER. In the event that Tenant shall continue to occupy
the demised Premises after the expiration of the term of this Lease or written
extension of the term hereof without entering a new Lease or written extension
of the term hereof said tenancy shall be construed to be a "tenancy from month
to month" upon all of the other terms and conditions herein contained, except
where same are not applicable, and except that the rental during such holdover
period shall be the then current Minimum Rent plus fifty percent (50%) thereof
and all "additional rent" shall continue to be paid.
17.2 NO PARTNERSHIP. It is expressly understood that the Landlord and
Tenant are not partners or co-venturers, and that the Landlord has no right,
title or interest in and to the business of the Tenant, and that the Tenant has
no right to represent or bind the Landlord in any respect whatsoever, and that
nothing herein contained shall be deemed, held or construed as making the
Landlord a partner or associate of the Tenant, or as rendering the Landlord
liable for any debts, liabilities or obligations incurred by the Tenant; it
being expressly understood that the relationship between the parties hereto is,
and shall at all times remain, that of Landlord and Tenant.
14
17.3 WAIVER. Failure on the part of the Landlord to complain of any
action or nonaction on the part of Tenant, no matter how long the same may
continue, and no matter what other action or non-action by Tenant that Landlord
has already complained of shall never be deemed to be a waiver by Landlord of
any of his rights hereunder. Further, it is covenanted and agreed that no waiver
at any time of any of the provisions hereof by Landlord, shall be construed as a
waiver of any of the other provisions hereof and that a waiver at any time of
any of the provisions hereof shall not be construed as a waiver at any
subsequent time of the same provisions. The consent or approval of the Landlord
to or of any action by Tenant requiring Landlord's consent or approval shall not
be deemed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent similar act by Tenant.
No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord, even after demand by Landlord for
rent pursuant to Tenant's rent default shall be treated otherwise than a payment
on account. The acceptance by Landlord of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that said lesser amount is payment in full shall be given no effect, and
Landlord may accept such check without prejudice to any further rights or
remedies which Landlord may have against Tenant. Further, failure of the
Landlord to ▇▇▇▇ timely for taxes or other additional rent as heretofore
required shall not be deemed a waiver of Tenant's liability to pay same.
17.4 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the rent and observing, keeping and
performing all of the terms and provisions of this Lease on its part to be
observed, kept and performed, shall lawfully, peaceably and quietly have, hold
occupy and enjoy the Demised Premises during the term hereof without hindrance
or objection by any persons lawfully claiming under Landlord.
17.5 ENTIRE AGREEMENT. This Lease is executed in identical
counterparts, each of which, when bearing original initials of the parties on
each page and at each change in the text hereof as well as original signatures
at the end of each document, shall constitute an original for all purposes. All
previous agreements, whether oral or written, are superseded by and merged with
this Lease. Subsequent change shall not be binding unless reduced to writing and
signed by the parties hereto.
17.6 INVALIDATION OF PARTICULAR PROVISIONS. If any clause, term or
provision of this Lease, or the application thereof to any person or
circumstance shall to any extent, be invalid or unenforceable, the remainder of
this lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law. It is the
intention of the parties hereto that in lieu of each clause, term or provision
of this Lease that is illegal invalid or unenforceable, there be added as part
of this Lease a clause, term or provision similar to such illegal invalid or
unenforceable clause, term or provision as may be possible and would be legal
valid and enforceable.
17.7 PROVISIONS BINDING, ETC. Except as herein otherwise expressly
provided, the terms hereof shall be binding upon and shall inure to the benefit
of the heirs, successors, assigns
15
and legally appointed representative, respectively, of the Landlord and the
Tenant. Each term and each provision of this Lease to be performed by Tenant
shall be construed to be both a covenant and a condition.
17.8 GOVERNING LAW. The laws of the State of Illinois shall govern the
interpretation, validity, performance and enforcement of this Lease.
17.9 NOTICES. Any notice which is required under this Lease shall be
deemed "given" upon hand delivery or three (3) days after prepaid posting in the
U. S. Mail whichever shall first occur. Notice shall be addressed to:
Landlord at: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant at: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to any other address as shall be designated by written notice.
Where in this Lease a certain number of days from date of notice to a
given action is specified, unless the specific provision otherwise states, the
days shall be counted as follows: The first calendar day shall be excluded and
the last day shall be included, unless the last day is a Saturday, Sunday, or
legal holiday, in which event the period shall be extended to include the next
day which is not a Saturday, Sunday or legal holiday.
17.10 DATE OF LEASE. All references to the "date of this Lease" or
"date hereof shall be deemed to be that date on which all parties hereto have
executed this Lease.
17.11 HEADINGS. The heading, section numbers and article numbers
appearing in this Lease are not intended in any manner to define, limit or
describe the scope of any such section or article and are solely inserted for
ready reference purposes.
17.12 PRONOUNS. As utilized in this Lease, the "singular" pronouns
shall include the it plural", and the "masculine" shall include the "feminine"
and the "neuter", and vice versa, unless a contrary intent specifically appears.
17.13 LANDLORD'S LIABILITY. Notwithstanding anything to the contrary in
this Lease, it is specifically understood and agreed, such agreement being a
primary consideration for the execution of this Lease by the Landlord, that
there shall be absolutely no personal liability on the part of the Landlord, its
successors, assigns, legally appointed representatives or any mortgagee in
possession (for the purposes of this section collectively referred to as
"Landlord") with respect to any of the terms, covenants and conditions of this
Lease and that Tenant shall look solely to the equity of Landlord in the Demised
Premises for the satisfaction of each and every remedy of Tenant in the event of
any breach by the Landlord of any of the terms, covenants and conditions of this
Lease to be performed by Landlord, such exculpation of liability to be absolute
and without any exception whatsoever.
16
IN WITNESS WHEREOF, the parties hereto have affixed their signatures
the day and year first above written.
LANDLORD: FCA REAL ESTATE HOLDINGS, LLC
By LIFE TIME FITNESS, Inc. fka FCA, Ltd., Its Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: Secretary/Chief Financial Officer
TENANT: LIFE TIME FITNESS, Inc., fka FCA, Ltd.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ITS: Secretary/Chief Financial Officer
17
EXHIBIT A
LEGAL DESCRIPTION OF DEMISED PREMISES
PARCEL 1:
Lot I in Lifetime Fitness Subdivision, being a resubdivision of part of Lots 9
and 10 in Kaper's East Subdivision, a Subdivision of part of the West Half of
the Southwest Quarter of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇ of the
Third Principal Meridian, in ▇▇▇▇▇▇▇ County, Illinois.
PARCEL 2:
Access easement for the benefit of that portion of Parcel 1 falling in the
former Lot 9 of Kaper's East Subdivision, said easement created by plat of
Kaper's Business Center Unit 1, recorded as Document Number 97R025826, over the
following described land:
The East 35 feet of Outlot A in Kaper's Business Center Unit 1, a Subdivision of
part of the West Half of the Southwest Quarter of Section 29, Township 43 North,
Range 8 East of the Third Principal Meridian, in ▇▇▇▇▇▇▇ County, Illinois,
according to the plat thereof recorded June 4, 1997 as Document Number
97RO25826.
PARCEL 3:
Easement created by the Bike Path Easement Agreement made by and between
Northwest Algonquin/▇▇▇▇▇▇▇ Business Owners Association and FCA Real Estate
Holdings, LLC, dated August 21, 2000 and recorded as Document Number
2000R0046186.
PARCEL 4:
Easement for storm water retention pond purposes as created by Retention Pond
Agreement dated July 6, 1993, recorded July 13, 1993, as Document No. 93R040761,
as clarified and supplemented by Declaration for Northwest Algonquin/▇▇▇▇▇▇▇
Business Owners Association dated September 15, 1997, recorded September 15,
1997 as Document No. 97R044939.
18
EXHIBIT 4.14
FORM OF TIAA SUBSIDIARY LEASE
[LTF USA/MINNESOTA/MICHIGAN REAL ESTATE, LLC]
Landlord
TO
LIFE TIME FITNESS, INC.
Tenant
LEASE AGREEMENT
DATED AS OF MAY __, 2001
TABLE OF CONTENTS
Article 1. REFERENCE DATA; DEFINITIONS........................................................................... 1
Article 2. DEMISE OF PROPERTY; TERM; EXTENSIONS OF TERM.......................................................... 4
Article 3. RENT.................................................................................................. 4
Article 4. TAXES................................................................................................. 5
Article 5. REPAIRS AND MAINTENANCE............................................................................... 5
Article 6. INSURANCE............................................................................................. 6
Article 7. UTILITIES............................................................................................. 8
Article 8. ALTERATIONS........................................................................................... 8
Article 9. DAMAGE TO OR DESTRUCTION OF THE IMPROVEMENTS.......................................................... 9
Article 10. CONDEMNATION......................................................................................... 10
Article 11. DISCHARGE OF LIENS................................................................................... 11
Article 12. USE OF PROPERTY...................................................................................... 12
Article 13. ENTRY ON PROPERTY BY LANDLORD........................................................................ 12
Article 14. WAIVER AND INDEMNIFICATION........................................................................... 12
Article 15. ASSIGNMENT........................................................................................... 13
Article 16. ESTOPPEL CERTIFICATES................................................................................ 15
Article 17. EVENTS OF DEFAULT; TERMINATION....................................................................... 16
Article 18. SURRENDER OF THE PROPERTY............................................................................ 17
Article 19. NO MERGER OF TITLE................................................................................... 18
Article 20. QUIET ENJOYMENT...................................................................................... 18
Article 21. PERFORMANCE FOR TENANT............................................................................... 18
Article 22. NOTICES.............................................................................................. 18
i
Article 23. CONTESTS............................................................................................. 19
Article 24. NO WARRANTIES/"AS IS"................................................................................ 19
Article 25. TENANT'S RIGHT TO CURE LANDLORD'S DEFAULT UNDER FIRST MORTGAGE....................................... 20
Article 26. SUBORDINATION AND NON-DISTURBANCE.................................................................... 20
Article 27. FIRST OFFER RIGHT.................................................................................... 21
Article 28. APPRAISAL............................................................................................ 23
Article 29. EQUIPMENT............................................................................................ 24
Article 30. MISCELLANEOUS........................................................................................ 25
EXHIBIT A - Legal Description of Land
EXHIBIT B - Permitted Exceptions
ii
LEASE AGREEMENT
Dated as of May __, 2001
from
[LTF USA/MINNESOTA/MICHIGAN REAL ESTATE, LLC]
to
LIFE TIME FITNESS, INC.
of Property in the City of _____________, _________ County, ________
Article 1. REFERENCE DATA; DEFINITIONS
1.1 LANDLORD: [LTF USA/MINNESOTA/MICHIGAN REAL
ESTATE, LLC]
ADDRESS OF LANDLORD: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT: LIFE TIME FITNESS, Inc.
ADDRESS OF TENANT: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
1.2 Each reference in this Lease to any of the titles contained in
Section 1.1 shall be construed to incorporate the data stated under that title.
1.3 The following terms shall have the meanings set forth in this
Section:
Alteration. Construction, reconstruction, replacement,
repairs, renewals, alterations, changes, additions, improvements and
demolitions of or to the Improvement and all excavations at any time
made or to be made in, or on about the Land.
Appraisal. Appraisal in accordance with Article 28.
Basic Rent. The Basic Rent provided for in Section 3.2 of this
Lease.
Commencement Date. May , 2001.
Environmental Activity. Any actual, suspected or threatened
abatement, cleanup, disposal, generation, handling, manufacture,
possession, release, remediation, removal, storage, transportation,
treatment or use of any Hazardous Material, or the actual, suspected or
threatened presence of any Hazardous Material, or the actual, suspected
or
1
threatened noncompliance with any Environmental Laws, will be deemed
Environmental Activity.
Environmental Laws. All Legal Requirements pertaining to
health, safety, protection of the environment, natural resources,
conservation, wildlife, waste management, Environmental Activities and
pollution.
Equipment. As defined in Section 29.1.
Event of Default. As defined in Section 17.1.
Fair Market Value. The cash price which would be obtained for
the Property in an arm's length transaction between a willing buyer and
a willing seller under no compulsion to buy or sell.
Fair Rental Value. The annual Basic Rent which would be
obtained for the Property in an arm's length transaction between a
willing landlord and a willing tenant under no compulsion to lease.
First Mortgage. Any first mortgage or deed of trust (together
with the notes secured thereby and security instruments collateral
thereto) of record now or hereafter placed against the Property by
Landlord, any increase, amendment, extension, refinancing or recasting
of a First Mortgage. For the purposes hereof, a First Mortgage shall be
deemed to continue in effect after foreclosure thereof and during any
period of redemption therefrom.
First Mortgagee. The holder from time to time of the First
Mortgage, if any.
First Offer Right. Tenant's first offer right with respect to
the Property granted pursuant to Article 27.
Governmental Authorities. All federal, state, county,
municipal and local governments, and all departments, commissions,
boards, bureaus and officers thereof, having or claiming jurisdiction
over the Property or Tenant's use thereof.
Hazardous Materials. Any by-product, chemical, compound,
contaminant, pollutant, product, substance, waste or other material (i)
that is hazardous or toxic or (ii) the abatement, cleanup, discharge,
disposal, emission, exposure to, generation, handling, manufacture,
possession, presence, release, removal, remediation, storage,
transportation, treatment or use of which is controlled, prohibited or
regulated by any Environmental Laws, including asbestos, petroleum and
petroleum products and polychlorinated biphenyls.
Improvement. The building, fixtures and other improvements
from time to time constructed on the Land, and all alterations and
additions thereto and replacement thereof, including by reason of
Restoration, but excluding in any event the Equipment. The Improvement
shall be and remain the property of Landlord, subject to this Lease.
2
Land. The land, but not any Improvement or any other building,
structure or other improvement, situated in __________ County, State of
___________, and legally described on Exhibit A.
Lease. This Lease Agreement, including the following exhibits
attached hereto and hereby made a part hereof:
Exhibit A - Legal Description of the Land
Exhibit B - Permitted Exceptions
Exhibit C - Certain Equipment
Legal Requirements. All laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, directions and
requirements of all Governmental Authorities which now or at any time
hereafter may be applicable to or required in connection with the
Property or any part thereof, or any use or condition of the Property
or any part thereof.
Permitted Exceptions. The liens, documents and other matters
listed on Exhibit B attached hereto.
Present First Mortgage. The First Mortgage in effect on the
date hereof between Landlord as mortgagor and Teachers Insurance and
Annuity Association of America (and its successors and assigns) as
mortgagee.
Property. The Land and the Improvement, collectively.
Restore or Restoration. The repair, restoration or rebuilding
of the Property or any part thereof following any Taking, damage to or
destruction of the same by fire or other casualty or cause as nearly as
possible to its size, type and character immediately prior to such
Taking, damage or destruction, in accordance with all Legal
Requirements, with such Alterations as may be determined by Tenant,
together with any temporary repairs and property protection pending
completion of the work.
Taking. A taking of all or any part of the Property, or any
interest therein or right accruing thereto, including, without
limitation, any right of access thereto existing on the date of this
Lease, as the result of or in lieu or in anticipation of the exercise
of the right of condemnation or eminent domain. The Taking shall be
deemed to occur on the date on which the condemning authority takes
possession.
Taxes. All real estate taxes and special assessments levied
against or imposed on the Property.
Term. The initial term of this Lease as provided in Article 2,
including without limitation extensions of the initial term pursuant to
Section 2.2.
Unavoidable Delays. Acts of God, casualties, war, civil
commotion, embargo, riots, strikes, unavailability of materials (but
not unavailability of funds) and any other
3
events which are not within the reasonable control of the party in
question to prevent, control or correct
Article 2. DEMISE OF PROPERTY; TERM; EXTENSIONS OF TERM
2.1 Landlord, for and in consideration of the rents hereinafter
reserved and the covenants and agreements hereinafter contained on the part of
Tenant to be paid, kept and performed, does hereby demise and lease to Tenant,
and Tenant does hereby take and lease from Landlord, upon and subject to the
terms and conditions of this Lease, the Property for an initial term of twenty
(20) years, commencing on the Commencement Date and ending on the day prior to
the twentieth (20th) anniversary thereof.
2.2 Tenant is hereby granted the options to extend the Term of
this Lease for five (5) successive periods of five (5) years each (each, an
"Extended Term"), each such period to commence at the expiration of the initial
Term or preceding Extended Term of this Lease, as the case may be.
2.3 If Tenant is not in default under this Lease beyond any
applicable grace period, Tenant may exercise each of its options to extend the
Term of this Lease by giving written notice thereof to Landlord on or before the
date occurring twelve (12) months prior to the expiration of the initial Term or
preceding Extended Term, as the case may be. If Tenant fails to give such notice
within the time permitted, Tenant shall have waived its right to extend the
Term.
2.4 Any such exercise of an extension option as herein provided
shall operate as an extension of the Term hereof, so that this Lease and each
and every covenant, agreement and provision thereof shall be and remain in full
force and effect during the Term as extended and with the same force and effect
as if the Term of this Lease were originally for such extended period.
Article 3. RENT
3.1 Throughout the Term, Tenant covenants and agrees to pay to
Landlord, without demand, setoff or abatement except as provided in this Lease,
the Basic Rent at the per annum rates set forth in Section 3.2. The Basic Rent
shall be payable in equal installments of one-twelfth (1/12th) of said annual
Basic Rent in advance on the first day of each calendar month included in the
Term, and at that rate payable in advance for any portion of a calendar month at
the commencement or the end of the Term.
3.2 For the period of the Term beginning on the Commencement Date
and ending on the day prior to the first (1st) anniversary of the Commencement
Date, the annual Basic Rent shall be in the amount of ___________ Dollars
($__________). For each successive one (1) year period in the initial Term
beginning on the first (1st) and each successive anniversary of the Commencement
Date and ending on the day prior to the next-succeeding anniversary of the
Commencement Date, the annual Basic Rent shall be in an amount equal to one
hundred two and one-half of one percent (102.5%) of the Basic Rent that was in
effect during the immediately preceding one-year period. During each of the
Extended Terms, Basic Rent shall amount to the Fair Rental Value of the Property
as of the commencement of the applicable Extended Term as determined pursuant to
Article 29.
4
3.3 All Basic Rent shall be paid by Tenant to Landlord at the
address of Landlord, or to such other address as Landlord may direct by notice
to Tenant.
3.4 It is the purpose and intent of Landlord and Tenant that Basic
Rent shall be absolutely net to Landlord and that Tenant shall pay without
notice or demand and without abatement, deduction or setoff, except as otherwise
provided in this Lease.
3.5 In the event First Mortgagee succeeds to the Landlord's
interest under this Lease and is advised by First Mortgagee's counsel that all
or any portion of the rent payable under this Lease is or may be deemed to be
unrelated business income within the meaning of the Internal Revenue Code of
1986 or regulations issued thereunder, First Mortgagee may elect to amend
unilaterally the calculation of rent so that none of the rent payable to First
Mortgagee under this Lease will constitute unrelated business income, but the
amendment will not increase Tenant's payment obligations or other liability
under this Lease or reduce the landlord's obligations under this Lease. If First
Mortgagee requests, Tenant will execute any document First Mortgagee deems
necessary to effect such amendment of this Lease.
Article 4. TAXES
4.1 Subject to Section 4.2, Tenant shall pay, or cause to be paid,
all Taxes on the Property before any fine, penalty, interest or cost may be
added thereto for the nonpayment thereof; provided, however, that:
4.1.1 If, by law, any Tax may, at the option of the taxpayer
or party obligated, be paid in installments, Tenant may exercise the
option to pay the same (and any accrued interest on the unpaid balance
of such Tax) in installments and, in such event, subject to the
provisions of subsection 4.1.2 hereof, shall pay only such installments
as may become due during the Term as the same respectively become due
in the ordinary course and before any fine, penalty, further interest
or cost may be added thereto; and
4.1.2 Any Tax due and payable, including any installments
thereof, in the year of commencement or in the final year of the Term
shall be prorated between Landlord and Tenant as of the commencement or
the expiration of the Term, as the case may be.
4.2 Upon termination of any Contest brought by Tenant pursuant to
Article 23 with respect to the amount or validity of any Tax, or if Tenant shall
so elect, at any time prior thereto, Tenant shall pay the amount of such Tax or
part thereof as finally determined in such proceeding.
4.3 Notwithstanding anything to the contrary in this Article 4, in
the event that the First Mortgagee shall require that the Taxes payable by
Tenant pursuant to Section 4.1 be paid periodically into a tax escrow for the
Property, then Tenant shall pay such Taxes as required by the First Mortgage.
Tenant shall be entitled to any interest which may be payable by the First
Mortgagee in connection with such tax escrow.
Article 5. REPAIRS AND MAINTENANCE
5.1 Throughout the Term, Tenant, at its sole cost and expense,
shall take good care of the Property, all appurtenances of the Property, all
alleyways and passageways and all sidewalks,
5
curbs and vaults adjoining the Property, and shall at all times keep the same in
a good order and condition, ordinary wear excepted, and make all necessary
repairs thereto, interior and exterior, structural and non-structural, ordinary
and extraordinary and foreseen and unforeseen.
5.2 The term "repairs" as used in this Article shall include, but
not be limited to, all necessary or appropriate replacements. The necessity for
and adequacy of the repairs to the Property made or required to be made pursuant
to Section 5.1 shall be measured by the requirements of buildings of similar
construction and age containing similar facilities which are prudently managed
and operated with due regard for both short term and long term considerations.
5.3 All repairs by Tenant shall be effected with all due diligence
and in a workmanlike manner in compliance with all Legal Requirements and shall
be promptly and fully paid for by Tenant.
Article 6. INSURANCE
6.1 Tenant, at its expense, shall procure and maintain or cause to
be procured and maintained during the Term:
6.1.1 Insurance with respect to the Property against loss or
damage by fire, lightning, windstorm, tornado, hail and such other
casualty as is customarily covered by extended coverage and "all risk"
endorsements and such other risks as Landlord may from time to time
reasonably require, in each case in the full replacement value of the
Property. The term "full replacement value" as used in this Section and
in other Sections of this Article 6 shall mean 100% of the actual
replacement cost including the cost of all debris removal, exclusive,
however, of costs of excavations, foundations and footings below the
lowest floor. Whenever appropriate, while any Alterations are in the
course of being made, the aforesaid fire and extended coverage
insurance shall be carried by Tenant in builder's risk form written on
a completed value basis. Such insurance shall name Landlord, Tenant
and, if required by the First Mortgagee or Landlord, the First
Mortgagee, as insureds, as their interest may appear;
6.1.2 Commercial general public liability insurance against
claims for bodily injury, death or property damage, occurring on, in or
about the Property in a combined single limit of not less than Two
Million Dollars ($2,000,000), naming Landlord and the First Mortgagee
as additional insureds;
6.1.3 If requested by Landlord at any time, boiler and
pressure vessel and miscellaneous equipment insurance, including
pressure pipes, air conditioning systems, electric motors, air tanks,
compressors and pumps, in such amounts as Landlord may reasonably
require;
6.1.4 If the Property is at any time determined to be in a
flood hazard area, flood insurance;
6.1.5 During the entire period of making of any Alterations,
(i) owner's contingent or protective liability insurance covering
claims not covered by or under the
6
terms or provisions of the above-mentioned comprehensive general public
liability insurance policy, and (ii) adequate Worker's Compensation
Insurance covering all persons employed on or in connection with such
Alterations; and
6.1.6 If, pursuant to the First Mortgage, Landlord is required
to maintain other customary insurance in addition to the foregoing or
with broader coverage or higher limits or otherwise varying from the
foregoing requirements, then, upon Landlord's demand, Tenant shall
procure and maintain such insurance at Tenant's sole expense.
6.2 All insurance policies provided for in this Article 6 shall:
6.2.1 be valid and enforceable policies, in such forms and,
where not expressly provided for above, in such amounts, as may from
time to time be satisfactory to Landlord and the First Mortgagee,
issued by financially sound and responsible insurance companies
authorized to do business in the jurisdiction where the Property is
located, satisfactory to Landlord and the First Mortgagee;
6.2.2 except for worker's compensation insurance, name
Landlord, Tenant and, if required by the First Mortgage, the First
Mortgagee as insured as their respective interests may appear;
6.2.3 provide that such policies shall not be changed or
cancelled without at least thirty (30) days' prior written notice to
Landlord and the First Mortgagee;
6.2.4 provide that losses shall be adjusted with the insurers
and/or underwriters by the Landlord and Tenant and, if required by the
First Mortgage, the First Mortgagee in accordance with the provisions
of the First Mortgage; and
6.2.5 provide that, except in the case of public liability and
worker's compensation insurance, all insurance proceeds shall be
payable to the First Mortgagee (or if there is no First Mortgagee, to
Landlord) for the benefit of Landlord, Tenant and the First Mortgagee,
as their respective interests may appear.
6.3 On or before the Commencement Date, and thereafter prior to
the expiration dates of the expiring policies theretofore furnished pursuant to
this Article 6, copies of the policies (or, in the case of liability insurance,
certificates of the insurers) shall be delivered by Tenant to Landlord;
provided, however, that if the originals of any such policies are required under
the terms of the First Mortgage to be delivered to the First Mortgagee, Tenant
shall cause the same to be done and shall in such case deliver to Landlord a
copy of each policy so delivered, together with an insurance company certificate
of such policy, in form reasonably satisfactory to Landlord.
6.4 Tenant shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required in this Article to
be furnished by Tenant, unless Landlord and the First Mortgagee shall consent
thereto.
6.5 If Tenant is delayed in receiving any insurance proceeds
solely as a result of Landlord's unreasonable failure or refusal to approve an
insurance adjustment, such delay shall
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be taken into account in determining whether Tenant has fulfilled its
obligations under Article 9 hereof with reasonable diligence. All costs and
expenses of collecting or recovering any insurance proceeds under such policies,
including, but not limited to, any and all fees of attorneys, appraisers and
adjusters engaged by Landlord or the First Mortgagee, shall be paid by Tenant.
6.6 Notwithstanding anything to the contrary in this Article 6,
proceeds of any insurance carried by Tenant on the Equipment or any other
property of Tenant shall be payable directly to Tenant and Tenant shall have the
exclusive right to adjust and settle losses with respect thereto.
Article 7. UTILITIES
Tenant shall pay all charges for the use at the Property of, water,
sewer, electricity, heating, air conditioning and all other utilities consumed
during the Term.
Article 8. ALTERATIONS
8.1 Tenant shall have the right from time to time during the Term
to make, at its expense, Alterations in or of the Improvement, subject in all
cases to the further provisions of this Article 8 and to all other applicable
provisions of this Lease.
8.2 No Alteration shall be made without Landlord's prior written
consent (which may not be unreasonably withheld) if:
8.2.1 The proposed Alteration would change the general
character of the Improvement;
8.2.2 The proposed Alteration would involve a substantial
structural alteration;
8.2.3 The proposed Alteration would cost in excess of Two
Hundred Fifty Thousand Dollars ($250,000);
8.2.4 The market value of the Improvements would be lessened
by any such Alterations; or
8.2.5 The First Mortgagee's consent to the Alteration is
required under the terms of the First Mortgage.
Each Alteration which does not require Landlord's consent pursuant to this
Section 8.2 is hereinafter called a "permitted change or alteration".
8.3 If Tenant makes any Alterations then:
8.3.1 All such Alterations shall be performed by Tenant in a
good and workmanlike manner;
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8.3.2 All such Alterations shall be expeditiously completed in
compliance with all Legal Requirements;
8.3.3 All such Alterations shall comply with the requirements
of all insurance policies required to be maintained by Tenant
hereunder;
8.3.4 Tenant shall promptly discharge or remove all liens
filed against any of the Improvements arising out of any such
Alterations;
8.3.5 Tenant shall procure and pay for all permits and
licenses required in connection with any such Alterations; and
8.3.6. Except for a permitted change or alteration, each
Alteration shall be made under the supervision of an architect or
engineer selected by Tenant and approved by Landlord and the First
Mortgagee (if such approval is required by the First Mortgagee), shall
be made in accordance with detailed plans and specifications prepared
by such architect or engineer and approved by Landlord and the First
Mortgagee (if such approval is required by the First Mortgagee); and
shall be made pursuant to a contract therefor approved by Landlord
between Tenant and a general contractor engaged by Tenant and approved
by Landlord and the First Mortgagee (if such approval is required by
the First Mortgagee) which incorporates such plans and specifications.
Any such approval by Landlord shall not be unreasonably withheld and
shall be deemed to be given if a response is not received by Tenant not
later than thirty (30) days following the receipt of written request
therefor from Tenant.
8.4 Notwithstanding anything contained in this Article 8 or in
Articles 9 or 10, no Alteration shall be made unless Tenant complies in all
respects with the terms of the First Mortgage.
Article 9. DAMAGE TO OR DESTRUCTION OF THE IMPROVEMENTS
9.1 In case of any damage to or destruction of the Property or any
part thereof, Tenant shall give prompt notice thereof to Landlord, and, unless
this Lease is terminated pursuant to Section 9.4, Tenant shall with reasonable
diligence (subject to Unavoidable Delays), commence and complete Restoration,
all in accordance with plans and specifications therefor first approved by
Landlord, which approval shall not be unreasonably withheld, and the First
Mortgagee. The replacement building(s) to be constructed shall have an area
which is not less than the area of the Improvement, and shall be of a quality
not less than the quality of the Improvement, as the same existed immediately
prior to such damage or destruction. Restoration shall be performed in
accordance with the requirements of the First Mortgagee.
9.2 Except to the extent that the First Mortgagee requires
application of insurance proceeds for purposes other than Restoration, insurance
proceeds received by the First Mortgagee or Landlord in accordance with Section
6.2.5 on account of any damage to or destruction of the Property or any part
thereof (less the costs, fees and expenses incurred by the First Mortgagee,
Landlord and Tenant in the collection thereof, which shall be paid out of such
proceeds) shall be paid as Restoration progresses, to pay for the cost of
Restoration, upon written request of Tenant accompanied by evidence satisfactory
to Landlord and, if required by the First
9
Mortgage, the First Mortgagee, that an amount equal to the amount requested is
then due and payable or has been paid and is properly a part of such cost and
that the net insurance proceeds not yet advanced will be sufficient for the
completion of the Restoration, and upon such other conditions as may be set
forth in the First Mortgage or as otherwise required by Landlord. If the First
Mortgagee requires application of insurance proceeds for purposes other than
Restoration, Landlord shall from time to time make available amounts which in
the aggregate equal the amount so applied, to be applied to Restoration in
accordance with the terms and conditions of the immediately preceding sentence.
Upon receipt by Landlord and the First Mortgagee of evidence satisfactory to
them that Restoration has been completed and the cost thereof paid in full, and
that there are no mechanic's or similar liens for labor or materials supplied in
connection therewith, the balance, if any, of such insurance proceeds (and any
amount so made available by Landlord) shall be paid to Landlord, without
reduction in the Basic Rent. Upon the expiration or sooner termination of this
Lease, any insurance proceeds not theretofore applied to the cost of Restoration
shall be paid to Landlord.
9.3 Except as provided in Section 9.3, no destruction of or damage
to the Property, or any part thereof, whether such damage or destruction be
partial or total or otherwise, shall entitle or permit Tenant to surrender or
terminate this Lease or shall relieve Tenant from its liability to pay in full
the Basic Rent and other sums and charges payable by Tenant hereunder, or from
any of its other obligations under this Lease, and Tenant hereby waives any
rights now or hereafter conferred upon it by statute or otherwise to surrender
this Lease or quit or surrender the Property or any part thereof, or to receive
any suspension, diminution, abatement or reduction of the Basic Rent or other
sums and charges payable by Tenant hereunder on account of any such destruction
or damage.
9.4 In case of any damage to or destruction of the Property which
occurs during the last two (2) years of the Term in respect of which the cost of
Restoration is reasonably estimated to exceed forty percent (40%) and/or for
which substantial completion of Restoration cannot occur until more than six (6)
months following such damage or destruction, as such cost of Restoration and/or
date of substantial completion is estimated in good faith by a reputable general
contractor promptly selected by Tenant and approved by Landlord, which approval
may not be unreasonably withheld or delayed, Tenant may terminate this Lease by
giving written notice thereof to Landlord within forty-five (45) days after the
date of such damage or destruction. Such termination shall be effective on the
date such notice is given. In case of any such termination, Tenant shall not
have any obligation to repair or restore the Property.
Article 10. CONDEMNATION
10.1 In the event of a Taking of the whole or substantially all of
the Property, this Lease shall terminate on the date of such Taking, and the
Basic Rent and all other sums and charges required to be paid by Tenant
hereunder shall be apportioned and paid to the date of such Taking. In the event
of any such Taking and notwithstanding the termination of this Lease, the First
Mortgagee, Landlord and Tenant shall together make one claim for an award for
their combined interests in the Property and the net award received (after
deduction of reasonable fees and expenses of collection, including, but not
limited to, reasonable attorneys' and experts' fees) shall be paid as follows
and in the following order:
10
10.1.1 The First Mortgagee shall receive the amount to which
it is entitled as holder of the First Mortgage;
10.1.2 Tenant shall be entitled to the portion of the award
made for the value of its leasehold estate computed as though this
Lease had not been terminated, for the Equipment, and for moving
expenses; and
10.1.3 Landlord shall receive the balance of the award.
10.2 In the event of a Taking of less than substantially all of the
Property, this Lease shall continue in full force and effect, and Tenant shall
give prompt notice thereof to Landlord and Tenant shall proceed with reasonable
diligence (subject to Unavoidable Delays) to commence and complete Restoration,
except to the extent made impossible by any reduction in area caused by such
Taking. All awards payable as a result of any Taking shall be distributed as
follows and in the following order, provided that there shall first be deducted
therefrom all reasonable fees and expenses of collection, including, but not
limited to, reasonable attorneys' and experts' fees:
10.2.1 Landlord shall pay to the First Mortgagee the portion
of such award, if any, to which it shall be entitled under the terms of
the First Mortgage;
10.2.2 Landlord shall distribute the proceeds of such award to
Tenant for the purpose of Restoration in the manner provided in Section
9.2, and subject to the terms and conditions of such Section (including
the agreement of Landlord to make available for the purposes of
Restoration any funds paid to the First Mortgagee pursuant to Section
10.2.1); and
10.2.3 The balance of the award, if any, shall be paid to
Landlord.
The Annual Rent shall be reduced by a fair and equitable amount taking into
account the proportion by which the fair rental value of the Property has been
reduced by the Taking (if at all).
10.3 As used herein, a Taking of "substantially all of the
Property" shall mean a Taking of such portion of the Property as renders it
uneconomical or infeasible to operate the Property for the purpose for which the
Property was operated prior to such Taking. Any dispute between the parties as
to whether any particular Taking constitutes a Taking of all or substantially
all, or a Taking of less than substantially all, of the Property shall be
determined by arbitration in accordance with the rules of the American
Arbitration Association as then in effect and any determination therein shall be
final and binding on Landlord and Tenant.
Article 11. DISCHARGE OF LIENS
Neither Landlord nor Tenant shall create, liens or notices of claims of
liens of mechanics and materialmen for work or materials contracted to be
supplied to the Property by Landlord or Tenant, respectively, subject to contest
by Tenant in accordance with Article 23.
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Article 12. USE OF PROPERTY
12.1 Tenant may use and occupy the Property for any purpose in
compliance with Legal Requirements and the requirements of the First Mortgage.
12.2 Tenant shall not suffer any act to be done or any condition to
exist on the Property or any part thereof which may, in law, constitute a
nuisance, public or private.
12.3 Tenant shall not permit any Activity on, about or under the
Property other than the use, storage and disposal of the minimum quantities of
Hazardous Materials in the ordinary course of business consistent with the
operation of a health club facility and uses ancillary thereto and in compliance
with all Environmental Laws. Tenant shall promptly, properly and completely
remediate the effect of any Environmental Activity in violation of this Section
12.3. Tenant will notify Landlord immediately upon Tenant becoming aware of (i)
any actual, suspected or threatened violation of Environmental Laws with respect
to the Property or with respect to any property in the vicinity of the Property,
and (ii) any Environmental Activity with respect to the Property or with respect
to any property in the vicinity of the Property. Tenant promptly will deliver to
Landlord copies of all documents delivered to or received by Tenant regarding
the matters set forth in this subsection, including notices of any legal
proceedings or investigations concerning any Environmental Activity or
concerning Landlord's or Tenant's status as potentially responsible party (as
defined in the Environmental Laws). Tenant's notification to Landlord in
accordance with the provisions of this Section will not be deemed to excuse any
default under this Lease resulting from the Environmental Activity or the
violation of Environmental Laws that is the subject of the notice. From time to
time at Landlord's or First Mortgagee's request, Tenant will deliver to Landlord
and First Mortgagee any information known and documents available to Tenant
relating to the environmental condition of the Property.
Article 13. ENTRY ON PROPERTY BY LANDLORD
Upon prior written notice (except in the case of an emergency), Tenant
shall permit Landlord and the First Mortgagee and their respective contractors,
consultants, representatives and designees to enter the Property at all
reasonable times for the purpose of (a) inspecting and testing the same, (b)
exercising its rights pursuant and subject to Article 21, and (c) showing the
same to prospective purchasers, mortgagees and tenants (during the last six (6)
months of the Term only with respect to prospective tenants).
Article 14. WAIVER AND INDEMNIFICATION
14.1 Notwithstanding anything to the contrary in this Lease,
Landlord and Tenant hereby release one another and their respective partners,
officers and employees from any and all liability (to the other or anyone
claiming through or under them by way of subrogation or otherwise) for any loss
or damage coverable by the insurance described in Subsections 6.1.1, even if
such loss or damage shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible.
14.2 Landlord shall not be responsible or liable to Tenant for any
loss or damage to the Equipment arising from (a) the acts or omissions of
persons other than Landlord occupying
12
premises adjacent to the Property, or transacting any business in the area of
the Property, or (b) burst, stopped or leaking water, gas or sewer pipes or any
failure of, or defect in, any electric line, circuit or facility, or (c) any
condition of the Property.
14.3 Each party hereto shall defend, indemnify and hold the other
harmless from and against all liabilities, obligations, claims, demands, costs,
charges, judgments and expenses, including, but not limited to, reasonable
attorneys' fees, which may be imposed upon or incurred or paid by or asserted
against such other party to the extent arising by reason of or in connection
with any negligent or tortuous act on the part of such party or any of its
agents, contractors, servants, employees, licensees or invitees and accruing or
occurring during the Term of this Lease.
14.4 Without limitation to Tenant's obligations under Section 14.3,
Tenant shall defend with counsel approved by Landlord (which approval will not
be unreasonably withheld), indemnify and save Landlord harmless from and against
all liabilities, obligations, damages, fines, penalties, claims, demands, costs,
charges, judgments and expenses, including, but not limited to, reasonable
architects' and attorneys' fees, which may be imposed upon or incurred or paid
by or asserted against Landlord, the Property or any interest therein by reason
of or in connection with any of the following accruing or occurring during the
Term of this Lease:
14.4.1 Any Alterations and anything done in, on or about the
Property or any part thereof in connection therewith;
14.4.2 The use, non-use, possession, occupation, condition,
operation, maintenance or management of the Property;
14.4.3 Any negligent or tortious act on the part of Tenant or
any of its agents, contractors, servants, employees, licensees or
invitees;
14.4.4 Any accident, injury, death or damage to any person or
property occurring in or on the Property during the Term; and
14.4.5 Any Environmental Activity occurring during the Term
on, about, to or from the Property or any part thereof.
Nothing contained in this Section 14.4 shall be deemed to require Tenant to
indemnify Landlord with respect to any tortious act or omission of Landlord or
its officers, employees, agents or contractors, or to any extent prohibited by
law.
14.5 The provisions of this Article 14 shall survive the expiration
or sooner termination of this Lease and the purchase of the Property pursuant to
the First Offer Right.
Article 15. ASSIGNMENT
15.1 Tenant's interest in this Lease or the Property, or any part
thereof, may not be assigned, sublet or otherwise transferred without Landlord's
prior written consent, which consent shall not be unreasonably withheld, and the
prior written consent of the First Mortgagee to the extent required by the First
Mortgage. Notwithstanding anything contained herein to the
13
contrary, Tenant may, without the necessity of the consent of Landlord, at any
time assign or otherwise transfer this Lease or any portion thereof to any
parent, subsidiary or affiliate corporation or entity of Tenant; any corporation
resulting from the consolidation or merger of Tenant into or with any other
entity; or any person, firm, entity or corporation acquiring a majority of
Tenant's issued and outstanding capital stock or all or substantially all of
Tenant's assets or of the business conducted at the Premises. As used herein,
the expression "affiliate corporation or entity" means a person or business
entity, corporate or otherwise, that directly or indirectly through one or more
intermediaries, controls or is controlled by or is under control with Tenant.
The word "control" means the right and power, direct or indirect, to direct or
cause the direction of the management and policies of a business entity,
corporation or otherwise. Tenant agrees that it will not transfer all or any
part of its interest under the Lease except as would be a "Permitted Transfer"
under the Present First Mortgage.
15.2 No consent by Landlord or First Mortgagee pursuant to this
Article 15 shall waive the requirement to obtain consent in any subsequent
instance. If Tenant assigns all its rights and interest under this Lease, the
assignee under such assignment shall expressly assume all the obligations of
Tenant hereunder which may arise on or after the date of such assignment, by a
written instrument delivered to Landlord at the time of such assignment. No
assignment or sublease shall affect or reduce any of the obligations of Tenant
hereunder, and all such obligations shall continue in full force and effect as
obligations of a principal and not as obligations of a guarantor, as if no
assignment or sublease had been made. No assignment or sublease shall impose any
additional obligations on Landlord under this Lease.
15.3 Tenant shall have the right in its discretion to enter into,
amend, terminate or modify from time to time subleases with respect to the
Property or any portion thereof on terms acceptable to Tenant in its sole
discretion. Each such sublease shall be subject and subordinate to the
provisions of this Lease. As security for performance of its obligations under
this Lease, Tenant hereby grants, conveys and assigns to Landlord all right,
title and interest of Tenant in and to all subleases now in existence or
hereafter entered into for any or all of the Property, any and all extensions,
modifications and renewals thereof and all rents, issues and profits therefrom.
Landlord hereby grants to Tenant a license to collect and enjoy all rents and
other sums of money payable under any sublease of any of the Property, provided,
however, that Landlord shall have the absolute right at any time while an
uncured Event of Default exists upon notice to Tenant and any subtenants to
revoke said license and to collect such rents and sums of money and to retain
the same. Tenant's rights under this Section 15.3 are subject to the terms and
conditions of the First Mortgage. Without limitation to the foregoing, Tenant
will not enter into any sublease that provides for rent based in whole or in
part on the income or profits derived from the subleased premises except for
percentage rent based on gross (not net) receipts or sales. Tenant will include
in each sublease:
(a) a prohibition against rent based in whole or in part on
the income or profits derived from the subleased premises except for
percentage rent based on gross (not net) receipts or sales;
(b) a requirement that if First Mortgagee succeeds to the
Landlord's interests under this Lease and is advised by First
Mortgagee's counsel that all or any portion of the rent payable under
this Lease or the sublease is or may be deemed to be unrelated
14
business income within the meaning of the Internal Revenue Code of 1986
or regulations issues thereunder, First Mortgagee may elect to amend
unilaterally the calculation of rent under the sublease so that none of
the rent payable to Lender under this Lease or the rent payable under
the sublease will constitute unrelated business income but the
amendment will not increase Tenant's or the subtenant's payment
obligations or other liability under this Lease or under the sublease
or reduce the Landlord's obligations under this Lease or Tenant's
obligations under the sublease; and
(c) a requirement that if First Mortgagee requests, the
subtenant will execute any document First Mortgagee deems necessary to
effect the amendment of this Lease or the sublease.
Tenant specifically acknowledges that neither Landlord nor First Mortgagee shall
have any obligation to approve any sublease that does not contain such
provisions.
15.4 Tenant is hereby given the right by Landlord to mortgage its
leasehold estate created under this Lease, under one or more leasehold
mortgage(s) upon the conditions that (a) all rights acquired under such
leasehold mortgage(s) shall be subject and subordinate to each and all of the
covenants, conditions and restrictions set forth in this Lease and to all rights
and interests of the Landlord in and to the Property and this Lease, none of
which covenants, conditions, restrictions, rights or interests is or shall be
waived by Landlord by reason of the right given to Tenant in this Section 15.4
to mortgage Tenant's leasehold estate created under this Lease, and (b) such
leasehold mortgagees execute and deliver to Landlord and any Lender a
subordination, non-disturbance and attornment agreement, and any other
documents, instruments or agreements reasonably requested by Landlord to
evidence such subordination and such other matters as Landlord may reasonably
request in connection therewith. Landlord agrees to accept timely performance by
a leasehold mortgage of Tenant's obligations under this Lease. Tenant's rights
under this Section 15.4 are subject to the terms and conditions of the First
Mortgage. Tenant agrees not to mortgage its leasehold interest so long as the
Present First Mortgage is in effect.
Article 16. ESTOPPEL CERTIFICATES
Each party hereto agrees from time to time, upon not less than ten (10)
days' prior notice from the other, to execute, acknowledge and deliver, without
charge, to the other or its designee, a statement in writing, certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, identifying the same by the date thereof and specifying the
nature thereof), the dates to which the Basic Rent and other sums and charges
payable hereunder have been paid, the amount of the Basic Rent, that to its
actual knowledge there are no claims against the other hereunder (or if there
are any such claims, specifying the same), that to its actual knowledge the
other party is not in default and there exists no circumstance which with the
giving of notice or lapse of time, or both, would constitute a default (or if
such party is aware of any such default or circumstance specifying the same),
and such other matters as Landlord, Tenant or the First Mortgagee shall
reasonably request.
15
Article 17. EVENTS OF DEFAULT; TERMINATION
17.1 If any one or more of the following events ("Events of
Default") shall happen, then and in any such event, Landlord may give notice to
Tenant specifying such Event or Events of Default and stating that this Lease
and the Term shall expire and terminate on the date specified in such notice,
and on such date, unless such specified Event or Events of Default shall have
been cured, this Lease shall terminate and Tenant shall remain liable as
hereinafter provided:
17.1.1 Tenant defaults in the payment of any Basic Rent
payable under this Lease and Tenant does not cure such default within
ten (10) days after written notice thereof by Landlord to Tenant; or
17.1.2 Tenant shall fail duly to observe or perform any of the
other terms, conditions, covenants or agreements required to be
observed or performed by it under this Lease and such failure shall
continue for a period of twenty (20) calendar days following written
notice of such failure by Landlord to Tenant, or, in the case of a
default which cannot with due diligence be cured within such period of
twenty (20) days, the Tenant fails to proceed with due diligence within
such period of twenty (20) days to commence to cure the same and
thereafter to prosecute the curing of such default with due diligence,
or fails to complete such cure within one hundred ten (110) days after
such notice from Landlord.
17.2 If this Lease shall have been terminated pursuant to Section
17.1, Landlord may enter upon and repossess the Property (said repossession
being hereinafter referred to as "Repossession") by summary proceedings or
ejectment, and may remove Tenant and all other persons therefrom.
17.3 From time to time after the Repossession of the Property,
Landlord may relet the Property for the account of Tenant in the name of
Landlord or otherwise, for such term or terms (which may be greater or less than
the period which would otherwise have constituted the balance of the Term) and
on such terms and for such uses as Landlord may in its reasonable business
judgment determine, and may collect and receive the rent therefor. Landlord
shall not be responsible or liable for any failure to collect any rent due upon
any such reletting. Landlord shall act reasonably to mitigate damages.
17.4 No termination of this Lease pursuant to Section 17.1 and no
Repossession of the Property pursuant to Section 17.2 or otherwise shall relieve
Tenant of its obligation to pay Basic Rent or any of its other obligations under
this Lease, all of which shall survive any such termination or Repossession.
17.5 In the event of any such termination or Repossession, whether
or not the property shall have been relet, Tenant shall pay to Landlord the
Basic Rent and other sums and charges to be paid by Tenant up to the time of
such termination or Repossession, and thereafter Tenant, until the end of what
would have been the Term in the absence of such termination or Repossession,
shall pay to Landlord, as and for liquidated and agreed current damages for
Tenant's default, the equivalent of the amount of the Basic Rent and such other
sums and charges which would be
16
payable under this Lease by Tenant if this Lease were still in effect, less the
net proceeds if any, of any reletting effected pursuant to the provisions of
Section 17.3, after deducting all of Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs, brokerage and
management commissions, operating expenses legal expenses, attorneys' fees
alteration costs, and expenses of preparation for such reletting. Tenant shall
pay such current damages to Landlord monthly on the days on which the Basic Rent
would have been payable under this Lease if this Lease were still in effect, and
Landlord shall be entitled to recover the same from Tenant on each such day. At
any time after such termination or Repossession, whether or not Landlord shall
have collected any current damages as aforesaid, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord on demand, as and for
liquidated and agreed final damages for Tenant's default, an amount equal to the
then present value of the excess of the Basic Rent reserved under this Lease
from the day of such termination or Repossession for what would be the then
unexpired Term if the same had remained in effect, over the then net fair rental
value of the Property for the same period, said present value to be arrived at
on the basis of reasonable estimates of Landlord as to Basic Rent and net fair
rental value, discounted at a rate equal to one percent (1.0%) plus the discount
rate at the time of liquidation of the Federal Reserve Bank for the district in
which the Property is located.
17.6 No failure by Landlord to insist upon the strict performance
of any term hereof or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the continuance of any
such breach, shall constitute a waiver of any such breach or of any such term.
17.7 Tenant may exercise and continue to exercise all of its rights
under this Lease upon the occurrence and during the continuance of any default
or Event of Default under this Lease up to the point of termination of this
Lease and actual Repossession, as defined in Section 17.2, including, but not
limited to, the First Offer Right.
Article 18. SURRENDER OF THE PROPERTY
18.1 In the event Tenant does not exercise and fulfill the
requirements of the First Offer Right, upon the expiration or sooner termination
of this Lease, Tenant shall quit and surrender the Property, in the condition
required to be maintained in accordance with this Lease, to Landlord without any
payment therefor by Landlord without delay, free and clear of all lettings and
occupancies. Upon such expiration or termination of this Lease, any Equipment
owned by Tenant which shall remain on the Property after the expiration or
termination of this Lease may, at the option of Landlord, be deemed to have been
abandoned, and may either be retained by Landlord as its property or be disposed
at Tenant's expense or without accountability, as Landlord may see fit, provided
that if Landlord shall store or warehouse any such property for any period of
time Tenant shall reimburse Landlord for all expenses incurred in connection
therewith, which obligation shall survive any such expiration or termination of
this Lease.
18.2 In connection with the surrender of the Property pursuant to
Section 18.1, Tenant shall be entitled to remove on or before the expiration or
sooner termination of this Lease, its Equipment and shall leave in place all
Alterations.
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18.3 The provisions of this Article 18 shall survive the expiration
or sooner termination of this Lease.
Article 19. NO MERGER OF TITLE
There shall be no merger of Tenant's interest in this Lease nor of the
leasehold estate created by this Lease with the fee estate in the Property or
any part thereof by reason of the fact that the same person may acquire or own
or hold, directly or indirectly, (a) Tenant's interest in this Lease or the
leasehold estate created by this Lease or any interest therein and (b) the fee
estate in the Property or any part thereof or any interest therein, and no such
merger shall occur unless and until all persons, if any, then having an interest
in, which interest shall have been voluntarily created by the holders of, the
ownership interests described in (a) and (b) above, shall join in a written
instrument effecting such merger and shall duly record the same.
Article 20. QUIET ENJOYMENT
Landlord covenants that Tenant, upon paying the Basic Rent and all
other sums and charges herein provided for and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be observed
and kept, shall quietly have and enjoy the Property during the Term without
disturbance by anyone claiming by, through or under Landlord subject, however,
to the exceptions, reservations, and conditions of this Lease.
Article 21. PERFORMANCE FOR TENANT
21.1 If Tenant shall at any time fail to make any payment or
perform any act on its part to be made or performed hereunder, then Landlord,
after thirty (30) days' (or such longer period as may be reasonably necessary to
cure the same) notice to Tenant, except when other notice is expressly provided
for in this Lease, and without waiving or releasing Tenant from any obligation
of Tenant contained in this Lease, may (but shall be under no obligation to)
make such payment or perform such act, and may enter upon the Property for any
such purpose, and take all such action thereon as may be necessary therefor.
21.2 All sums so paid by Landlord and all costs and expenses
incurred by Landlord in connection with the performance of any such act,
together with interest thereon at a rate equal to the lesser of (a) ten percent
(10%) per annum and (b) the maximum rate permitted by law, from the respective
dates of Landlord's making of each such payment or incurring of each such cost
and expense, and reasonable attorney fees incurred by Landlord in connection
therewith or in enforcing its rights hereunder, shall be paid by Tenant to
Landlord on demand as additional rent hereunder.
21.3 The provisions of this Article 21 shall survive the expiration
or sooner termination of this Lease.
Article 22. NOTICES
All notices, requests, demands, consents, approvals, and other
communications which may or are required to be served or given hereunder (for
the purposes of this Article collectively called "Notices") shall be in writing
and shall be delivered personally, or sent by nationally
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recognized overnight delivery service, or sent by registered or certified mail,
return receipt requested, postage prepaid, addressed to the party to receive
such Notice at its address first above set forth. Either party may, by Notice
given as aforesaid, change its address for all subsequent Notices, except that
neither party may require Notices to it to be sent to more than two addresses.
Mailed Notices shall be deemed given when mailed in the manner aforesaid,
provided that in the case of a notice of default to Tenant the same shall be
deemed given only upon actual receipt by Tenant.
Article 23. CONTESTS
23.1 After written notice to Landlord, Tenant may at its expense
contest, by appropriate proceedings conducted in good faith and with due
diligence (all such proceedings together with appeals therefrom being
hereinafter referred to as "Contests") the amount, validity or application, in
whole or in part, of any Tax, mechanics' lien, encumbrance, charge or any other
adverse claim for which Tenant is responsible under this Lease (hereinafter
collectively "claims") provided that:
23.1.1 In the case of an unpaid claim, such Contest shall
operate to suspend the collection of the same from Landlord and Tenant
therein;
23.1.2 Such Contest shall not result in a default under, and
shall be permitted by and conducted in accordance with all applicable
provisions of, the First Mortgage;
23.1.3 Tenant shall have furnished such security, if any, as
may be required in the proceedings or requested by the First Mortgagee;
and
23.1.4 Neither the Property nor any part thereof nor any
interest therein shall be, in the reasonable opinion of Landlord, in
imminent danger of being forfeited or lost.
23.2 During the period Tenant carries forward any such Contest in
good faith, Tenant shall be relieved from its obligations herein contained to
pay the claims, or to clear the liens with respect to which such contest is
conducted. If and to the extent Tenant shall not prevail in any such Contest,
Tenant shall immediately pay and discharge the claim in question to such extent.
23.3 All such Contests may be brought by Tenant in the name of
Tenant or, if reasonably necessary, in the name of Landlord or Tenant and
Landlord, as may be appropriate. Each party agrees to cooperate with the other
in such Contests, short of the payment of money with respect thereto, except
where this Lease otherwise requires payment. Each party will endorse such
pleadings, checks and other documents as will be appropriate to carry out the
purposes of this Section 23.3.
Article 24. NO WARRANTIES/"AS IS"
TENANT ACKNOWLEDGES THAT THE PROPERTY WAS CONSTRUCTED AND SELECTED BY
TENANT, AND LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE
PROPERTY "AS IS", AND TENANT ACKNOWLEDGES THAT LANDLORD HAS NOT MADE AND WILL
NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EXPRESS OR
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IMPLIED, WITH RESPECT TO ANY OF THE PROPERTY, INCLUDING ANY WARRANTY OR
REPRESENTATION AS TO ITS FITNESS FOR USE OR PURPOSE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, LATENT OR PATENT, OR AS TO VALUE, LOCATION, USE, CONDITION, QUALITY,
DESCRIPTION, OR DURABILITY OF OPERATION. THE PROVISIONS OF THIS SECTION 5.4 HAVE
BEEN NEGOTIATED, AND THE FOREGOING PROVISIONS ARE INTENDED TO BE A COMPLETE
PRECLUSION AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY OF THE PROPERTY, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE
OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
Article 25. TENANT'S RIGHT TO CURE LANDLORD'S DEFAULT UNDER FIRST MORTGAGE
If Landlord shall default in the payment of any monies required to be
paid under any First Mortgage or shall fail to perform any other term or
provision thereof (provided that the performance of the same is not the
obligation of Tenant under this Lease), then, upon twenty (20) days prior
written notice to Landlord (except in the case of emergency, when no notice
shall be required), Tenant may, but shall not be obligated to, make such payment
directly to the First Mortgagee or perform such term or provision and in any
such event Tenant shall be entitled to credit the amount of such payment and the
cost of such performance against Basic Rent hereunder, and the installments
thereof, next coming due hereunder.
Article 26. SUBORDINATION AND NON-DISTURBANCE
Contemporaneously herewith, Tenant and First Mortgagee have entered
into a Subordination and Attornment Agreement (With Conditional
Non-Disturbance), and the Tenant acknowledges and agrees that such document
shall govern the relationship between Tenant and the First Mortgagee (and shall
bind the Tenant and all successors and assigns of the Tenant, direct or remote)
so long as the Present First Mortgage is in effect. Subsequent to the release of
the Present First Mortgage, Tenant agrees that, upon the request of Landlord
made in writing, Tenant will subordinate this Lease to any First Mortgage and to
all renewals, modifications, consolidations, replacements and extensions
thereof; provided, however, that the First Mortgagee shall enter into a binding
agreement (the "Non-Disturbance Agreement") with Tenant providing that Tenant
shall not be disturbed in its possession of the Property or its rights hereunder
terminated or impaired by the First Mortgagee, purchaser at foreclosure or other
such party and that this Lease shall continue in full force and effect following
any foreclosure thereof or any deed given in lieu thereof, except that this
Lease may nonetheless be terminated pursuant to the provisions of this Lease
providing for such termination, including without limitation pursuant to Article
17. In the event the First Mortgagee or other purchaser at foreclosure sale
succeeds to the interest of Landlord under this Lease, Tenant will automatically
become the tenant of and shall be deemed to have attorned to such successor in
interest as Landlord under this Lease without change in the terms or provisions
of this Lease, provided, however, that such successor in interest shall not be
bound by any amendment or modification of this Lease made after Tenant enters
into the Non-Disturbance Agreement without the written consent of such First
Mortgagee or such successor in interest. Upon written request by such successor
in interest, Tenant and such
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successor shall execute and deliver an instrument or instruments whereby Tenant
confirms the attornment herein provided for and in which such successor shall
acknowledge its obligations and responsibilities to Tenant under the Lease and,
with respect thereto, shall recognize this Lease and the tenancy hereunder of
Tenant.
Article 27. FIRST OFFER RIGHT
The First Offer Right expressed in this Article shall terminate in the
event of any sale of the Property pursuant to a private power of sale under or
judicial foreclosure of the Present First Mortgage or a deed in lieu thereof,
unless the First Mortgagee under the Present First Mortgage or other assignee of
the fee title in the Property shall expressly agree to be bound thereby.
27.1 Landlord shall not (a) sell, transfer, assign or otherwise
dispose of any partial interest in the Property or any part thereof, (b) sell,
transfer, assign or otherwise dispose of any interest in the Property or
encumber or pledge the Property or any portion thereof in a manner not permitted
under the First Mortgage, or (c) sell, transfer, assign or otherwise dispose of
its interest in the Property until at least forty-five (45) days after it has
given Tenant written notice (the "Landlord's Notice") as herein provided of its
intention to dispose of the Property. The Landlord's Notice shall describe in
reasonable detail the selling price (including, if the proposed consideration
for such disposition is property other than cash, the Fair Market Value of such
property, in Landlord's opinion, as of the date of the notice), and the other
terms of such proposed disposition. Tenant shall have and is hereby granted the
first right and option ("First Offer Right") to purchase the Property in the
manner, at the price and on the terms provided in the Landlord's Notice.
27.2 The First Offer Right may be exercised by Tenant by giving
notice to Landlord at any time within forty-five (45) days after receipt of the
Landlord's Notice.
27.3 The purchase price for the Property pursuant to exercise of
the First Offer Right shall be the price stated in the Landlord's Notice as the
price at which Landlord proposes to sell, transfer or assign the Property;
provided that (a) if all or any part of the proposed consideration for said
sale, transfer or assignment is property other than cash, such portion of the
purchase price to be paid by Tenant shall be based on the Fair Market Value of
said property as of the date of the Notice to be determined by appraisal in
accordance with Article 28 below, and (b) if the Property is being disposed of
together with other land or property, then Tenant may elect to have the
consideration payable by it for the Property equal the Fair Market Value of such
interest as of the date of the Landlord's Notice to be determined by appraisal
in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord's Notice, Landlord
shall provide a title insurance commitment for the Property with a then-current
effective date. If such commitment reflects any matter affecting title to the
Property in addition to the Permitted Exceptions (other than this Lease and any
encumbrances created on or after the date hereof by Tenant or those claiming by,
through or under Tenant or with Tenant's consent), then Tenant may give Landlord
written notice of such matter. If Tenant gives Landlord such notice, Landlord
use reasonable efforts to cause such matter to be removed and corrected of
record within said thirty (30) days of receipt of Tenant's notice. If Landlord
fails to do so within said thirty (30) days,
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Tenant may at its option (a) attempt to cause such encumbrances to be removed,
(b) proceed to close without waiving any rights to damages hereunder, or (c)
terminate the agreement formed by exercise of the First Offer Right by giving
written notice thereof to Landlord, without such termination releasing Landlord
from liability for damages hereunder. If Tenant elects alternative (a) above,
closing shall be postponed until the encumbrances in question are removed and,
if Tenant is unable within a further period of sixty (60) days to cause such
encumbrances to be removed, Tenant may then elect either alternative (b) or (c)
above. Landlord and Tenant hereby agree that the Term after the closing shall be
extended as may be necessary to accommodate both Landlord's and Tenant's cure
periods and the appraisal process provided in Article 28, as applicable. No such
postponement shall alter the purchase price. All costs and expenses incurred by
Tenant in causing or attempting to cause such encumbrances to be removed,
including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord
shall convey the Property to Tenant on the first business day occurring thirty
(30) days after the date Tenant exercises the First Offer Right at Landlord's
main offices. The deed shall be in the usual, proper limited warranty form for
recording and registration, subject only to Permitted Exceptions and the other
matters permitted pursuant to Section 27.4, and shall be accompanied by all
documents necessary to allow the deed to be recorded. Landlord shall pay any
state deed tax or revenue stamps or other transfer tax. Landlord shall pay any
prepayment penalty or provision payable under the First Mortgage if the First
Mortgage is satisfied in connection with the closing. Tenant shall pay any
assumption fee payable under the First Mortgage in connection with such closing
if Tenant assumes the First Mortgage. The purchase price (less the unpaid
principal balance of the First Mortgage if assumed (subject to the terms
thereof) by Tenant at the closing) shall be payable by wire transfer or other
readily available funds. This Lease and all of the terms and provisions hereof
shall remain in full force and effect until the purchase has closed, except as
otherwise provided herein. Notwithstanding anything to the contrary in this
Article 27, to the extent Tenant (subject to the terms of the First Mortgage)
does not assume the First Mortgage, Landlord shall discharge the First Mortgage
and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right within the
forty-five (45) day period provided in Section 27.2, Landlord shall be free to
sell the Property free from the First Offer Right but subject to this Lease on
the same price and terms provided in the Landlord's Notice for a period of one
hundred eighty (180) days following the expiration of such forty-five (45) day
period. If Landlord does not close upon the transfer of the Property within such
one hundred eighty (180) day period on substantially the same terms as those
provided in the Landlord's Notice, then the First Offer Right shall revive and
Landlord shall be obligated to re-offer the Property to Tenant in accordance
with Section 27.1 prior to any sale, transfer or disposition of the same. As
used in this Section 27.6, "substantially the same" terms shall mean that the
purchase price pursuant to which Landlord proposes to sell the Property is not
less than ninety-five percent (95%) of that provided in the Landlord's Notice
and the terms are otherwise the same terms as provided in the Landlord's Notice.
Tenant shall, within five (5) days after Landlord's request therefore, deliver
an instrument in form reasonably satisfactory to Landlord confirming the
provisions of this Section 27.6, but no such instrument shall be necessary to
make the provisions hereof effective.
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27.7 If Tenant does not timely exercise its First Offer Right and
the Property is transferred to a third party, Tenant will attorn to such third
party as Landlord so long as such third party and Landlord notify Tenant in
writing of such transfer.
27.8 Notwithstanding anything to the contrary contained herein, the
provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting of the First Mortgage;
27.8.2 Any sale of the Property pursuant to a private power of
sale under or judicial foreclosure of the First Mortgage;
27.8.3 Any transfer of Landlord's interest in the Property to
First Mortgagee in lieu of foreclosure of the First Mortgage; or
27.8.4 Any Taking.
27.9 If any payment of Basic Rent or any other sums payable by
Tenant under this Lease remain outstanding on the closing date, then Landlord
may add to the purchase price for the Property the amount of such additional
obligations. Any prepaid obligations paid to Landlord shall be prorated as of
the closing date, and the prorated unapplied balance shall be deducted from the
purchase price due to Landlord.
27.10 The First Offer Right herein granted to Tenant is a continuing
right of first offer and shall apply as often as any then holder of any part of
the Landlord's interest hereunder (including, but not limited to, any such
holder who or which shall have acquired its interest in a disposition to which
the First Offer Right applied but was not exercised) shall make or propose to
make a sale, transfer, conveyance or other disposition of all or any part of the
Property or any interest therein during the Term of this Lease.
27.11 The provisions of this Article 27 shall apply to any sale,
transfer, assignment or other disposition of any membership or other interest in
Landlord which result in a change of control (as defined in Section 15.1) of
Landlord in the same manner as to a transfer of title to the Property.
27.12 Notwithstanding anything to the contrary herein, Tenant
acknowledges and agrees that the First Offer Right is subject to the terms and
conditions of the Present First Mortgage.
Article 28. APPRAISAL
28.1 Whenever Fair Rental Value is to be determined by appraisal in
accordance with this Lease, the parties shall proceed as follows:
28.1.1 Landlord and Tenant shall make good faith efforts to
reach agreement as to the Fair Rental Value within the thirty (30) days
following the date of the event which gave rise to the need for such
determination. Authorized representatives of Landlord and Tenant shall
meet at least once during that period. If they reach agreement as to
the Fair
23
Rental Value they shall put the same in writing and it shall then be
binding on both parties for the purposes for which determined.
28.1.2 If Landlord and Tenant do not reach agreement as to the
Fair Rental Value within the time permitted in Section 28.1.1 above,
each party will choose a person with at least ten (10) years experience
as a real estate appraiser in the ________________ County, __________
area who shall be a member in good standing of the American Institute
of Real Estate Appraisers (or successor organization or, if no such
organization exists, then persons of similar professional
qualifications) and given notice of the name and address of such person
to the other within thirty (30) days after the period for reaching
agreement in subparagraph (a) has expired. Those two persons shall
within fifteen (15) days select a third appraiser who has the minimum
qualifications set forth above for the first two appraisers. If either
party does not designate an appraiser within the prescribed thirty (30)
day period, or if the two appraisers do not select a third appraiser
within the prescribed fifteen (15) day period, the second or third
appraiser, or both, as the case may be, shall be appointed by the
president of the _____________ chapter of the American Institute of
Real Estate Appraiser (or successor organization, or, if no such
organization exists, any judge of a court of general jurisdiction in
______________ County, _______). The three persons (the "Experts")
shall, after initially consulting each other, make a determination of
the Fair Rental Value as expeditiously as possible thereafter and in
any event within thirty (30) days after the selection of the third
Expert. The determination of the experts shall be made as follows:
28.1.1.1 Each Expert will independently determine the Fair
Rental Value and then all will meet and simultaneously
disclose to the others their respective determinations.
28.1.1.2 If neither the highest nor the lowest determination
differs from the middle determination by more than ten percent
(10%) of such middle determination, then the Fair Rental Value
shall be the average of all three determinations.
28.1.1.3 If Section 28.1.1.2 does not apply, then the Fair
Rental Value shall be the average of the two determinations
that are closest by dollar value.
28.1.1.4 The Experts shall promptly notify Landlord and Tenant
of each of their separate determinations and the resulting
Fair Rental Value. Judgment upon any appraisal decision
rendered in accordance with the procedure may be entered by
any Court having jurisdiction thereof. The determination of
the Fair Rental Value pursuant to this procedure shall be
final, binding and conclusive upon Landlord and Tenant.
Article 29. EQUIPMENT
29.1 The following property (collectively, "Equipment"), whether or
not located in or on the Property or Improvement, does not constitute a portion
of the Property and shall at all times during and after the Term be the property
of Tenant:
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29.1.1 All items of personal property, equipment and fixtures
in the Property, and whether or however attached to the Building, at
any time that are necessary, incidental or convenient to the business
from time to time conducted at the Property, including, without
limitation, exercise equipment, kitchen equipment and furnishings, work
stations, portable or movable partitions, receptionist desks, millwork,
credenzas, computer installations (including computers, computer
hardware, raised flooring, freestanding supplemental air conditioning
or cooling systems therefor), communications systems and equipment,
financial services equipment (such as ATM's), safes, safe doors,
bulletin boards, book shelves and file cabinets, BUT EXCLUDING central
HVAC and other building systems (other than telecommunications
equipment, which shall be deemed the personal property of Tenant),
walls (other than demountable walls or partitions), doors, trim, floor
and wall coverings, ceiling lights and tile, window shades and the
like;
29.1.2 All furniture, inventory, machinery, racking, shelving,
and other personal property;
29.1.3 Any personal property, equipment or fixtures which is
either not owned by Landlord or Tenant or is on consignment to Tenant,
including any personal property owned by Tenant's, subtenant's,
employees or invitees;
29.1.4 All signs and other forms of business identification;
and
29.1.5 Any other items of personal property whatsoever.
29.2 Tenant shall have the right in its sole and absolute
discretion from time to time to install, alter, remove and/or replace such
Equipment as it shall deem to be useful or desirable in connection with its
business in the Property. Tenant shall repair any damage that occurs to the
property in connection with the removal and/or replacement of any of the
Equipment, whether such removal occurs during or at the end of the term of this
Lease. Tenant further shall have the right to enter into such agreements and
assignments with respect to the Equipment as Tenant in its sole discretion shall
deem advisable, including financing and similar arrangements.
29.3 Landlord shall execute such landlord consents and other
agreements as shall be reasonably requested by Tenant in connection with any
such agreements and arrangements. Landlord hereby waives each and every right
which Landlord now has or may hereafter have under Legal Requirements or by the
terms of any agreement now in effect or hereafter exercised by Landlord or
Lender to levy or distrain upon any of the Equipment for rent or to claim or
assert title to any of the Equipment.
Article 30. MISCELLANEOUS
30.1 In any case under this Lease which requires that a consent or
approval may not be unreasonably withheld, such consent or approval shall be
acted on promptly and without unreasonable delay.
30.2 If any term of this Lease or any application thereof shall be
invalid or unenforceable, the remainder of this Lease and any other application
of such term shall not be affected thereby. This Lease may be amended, changed,
waived, discharged or terminated only
25
by an instrument in writing signed by the then owners of the Landlord and Tenant
interests herein. This Lease shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto. The headings of this Lease are for purposes of reference only and shall
not limit or define the meaning hereof. This Lease may be executed in any number
of counterparts, each of which is an original, but all of which shall constitute
one instrument.
30.3 This Agreement has been made under the laws of the State of
__________ and the same will control its interpretation.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
[LTF USA/MINNESOTA/MICHIGAN
REAL ESTATE, LLC]
Landlord
By: ________________________
Its: ______________________
LIFE TIME FITNESS, INC.
Tenant
By: ________________________
Its: ______________________
27
EXHIBIT A
Legal Description of Land
A-1
EXHIBIT B
Permitted Exceptions
B-1
EXHIBIT 11.1(a) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
AVAILABILITY CERTIFICATE
This Availability Certificate is made and delivered by ___________ in
his/her capacity as a Responsible Officer of LIFE TIME FITNESS, Inc., a
Minnesota corporation (the "Borrower") pursuant to the requirements of Section
4.2(d)(i) of that certain Second Amended and Restated Credit Agreement, dated as
of July 19, 2001, by and among Borrower and Antares Capital Corporation, as
agent ("Agent") for the Lenders (as defined therein) (as it may be amended,
restated, modified or supplemented and in effect from time to time, the "Credit
Agreement"). Capitalized terms used herein and not otherwise defined herein are
used with the meanings given such terms in the Credit Agreement.
The individual executing this Availability Certificate is a Responsible
Officer of the Borrower and is duly authorized to execute and deliver this
Availability Certificate on behalf of the Borrower. The undersigned hereby
certifies to the Agent that:
(a) the undersigned is familiar with the terms of the Credit
Agreement;
(b) delivered to the Agent concurrently with this Certificate
are the financial statements required by Section 4.1(b) of the Credit
Agreement, which financial statements have been prepared in accordance
with GAAP on a consistent basis and present fairly the financial
position and results of operations of the entities covered by such
financial statements at the dates thereof and for the indicated periods
then ended;
(c) Availability as of the date hereof is $____________
IN WITNESS WHEREOF, the undersigned has executed this Availability this
___ day of _______________, 200_.
LIFE TIME FITNESS, INC.
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT 11.1(b) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
FORM OF NOTICE OF BORROWING
Antares Capital Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: __________________
Ladies and Gentlemen:
The undersigned does hereby certify that (s)he is authorized to execute
and deliver this Notice of Borrowing on behalf of LIFE TIME FITNESS, Inc., a
Minnesota corporation ("Borrower"). This Notice of Borrowing is given to Antares
Capital Corporation, as agent ("Agent") for all Lenders pursuant to Section 1.5
of that certain Second Amended and Restated Credit Agreement dated as of July
19, 2001, by and among Borrower and Agent for the Lenders (as defined therein)
(as amended, restated, modified or supplemented and in effect from time to time,
the "Credit Agreement"). All capitalized terms used but not otherwise defined
herein shall have the meaning ascribed thereto in the Credit Agreement.
Subject to the terms and conditions of the Credit Agreement and all
other Loan Documents not otherwise identified herein, please advance Borrower
the funds as requested below:
1. The proposed funding date shall be ______________, ____.
2. The proposed amount of the Borrowing shall be $____________, which
will be in the form of a Revolving Loan. The undersigned hereby certifies that
the aggregate amount of all outstanding Revolving Loans, plus the amount of the
Borrowing hereby requested, plus the outstanding Letter of Credit Participation
Liability will not exceed the Maximum Revolving Loan Balance.
3. The undersigned hereby certifies that the requested Borrowing will
be a (check one):
[ ] Working Capital Borrowing
[ ] Project Investment Borrowing
[ ] Leasehold Improvement Project Borrowing
[ ] Excess Project Investment Borrowing
4. The requested Revolving Loan will initially be of the following type
(check one):
[ ] a Base Rate Loan
[ ] a LIBOR Rate Loan
11.1(b)-1
5. If the requested Revolving Loan will be a LIBOR Rate Loan, the
Interest Period initially applicable to the Revolving Loan will be (check one,
if applicable):
[ ] one month
[ ] two months
[ ] three months
[ ] six months
6. If the requested Revolving Loan will be a Project Investment
Borrowing, a Leasehold Improvement Project Borrowing, or an Excess Project
Investment Borrowing, specify below (or on an attached sheet) the expected uses
of the requested Revolving Loan by reference to the cost categories contained in
the Good Faith Project Budget submitted for the applicable Project:
7. If the requested Revolving Loan will be an Excess Project Investment
Borrowing, attach to this Notice of Borrowing (a) a narrative explanation of any
variation between the costs incurred or expected to be incurred on the Project
related to this requested Revolving Loan and the costs estimated for the Project
in its Good Faith Project Budget, and (b) all invoices, certificates of
completion, bills of sale and other documents as the Agent may require
(following inquiry) to evidence the use and application of the requested
Revolving Loan.
The undersigned does hereby further certify in his (her) capacity as
indicated below that no Default or Event of Default has occurred and is
continuing under the Credit Agreement, or would result from the making of the
Loan requested hereby, and that the other conditions precedent set forth in
Section 2.2 of the Credit Agreement are satisfied as of the date hereof.
Please deposit the funds requested hereby into Borrower's account as
provided in Section 1.5(d) of the Credit Agreement.
Dated: ________________, ____
Very truly yours,
LIFE TIME FITNESS, INC.
By:_________________________________
Printed Name:_______________________
Title:______________________________
11.1(b)-2
EXHIBIT 11.1(c) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
FORM OF NOTICE OF CONVERSION/CONTINUATION
Antares Capital Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: __________________
Ladies and Gentlemen:
The undersigned does hereby certify that he is authorized to execute
and deliver this Notice of Conversion/Continuation on behalf of LIFE TIME
FITNESS, Inc., a Minnesota corporation ("Borrower"). This Notice of
Conversion/Continuation is given to Antares Capital Corporation, as agent
("Agent") for all Lenders pursuant to Section 1.6 of that certain Second Amended
and Restated Credit Agreement dated as of July 19, 2001 (as amended, restated,
modified or supplemented and in effect from time to time, the "Credit
Agreement") by and among Borrower and Agent for the Lenders (as defined
therein). All capitalized terms used but not otherwise defined herein shall have
the meaning ascribed thereto in the Credit Agreement.
Subject to the terms and conditions of the Credit Agreement and all
other Loan Documents not otherwise identified herein, please:
convert for the benefit of Borrower, on _______________, ____,
$______________ of the $_____________ outstanding principal amount
_________ Loan, currently a ____ Rate Loan, into a ____ Rate Loan; in
the case of conversion to a LIBOR Rate Loan, such Loan shall have an
Interest Period of ____ months; or
continue for the benefit of Borrower, on ______________, ____,
$______________ of the $_____________ outstanding principal amount
_________ Loan, currently a LIBOR Rate Loan, for an additional Interest
Period of ____ months.
The undersigned does hereby further certify in his capacity as
indicated below that no Default or Event of Default has occurred and is
continuing under the Credit Agreement, or would result from the
conversion/continuation requested hereby.
Dated: ________________, ____
Very truly yours,
LIFE TIME FITNESS, INC.
By:________________________________
Title:_____________________________
11.1(c)-1
EXHIBIT 11.1(d) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
REVOLVING NOTE
$ July 19, 2001
FOR VALUE RECEIVED, the undersigned, LIFE TIME FITNESS, INC., a
Minnesota corporation (the "Borrower"), hereby unconditionally promises to pay
to the order of ____________________________ ("Lender"), at the office of the
Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place
as the Agent or the Lender may from time to time designate to the Borrower in
writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of _________________________ ($____________)
or, if different, the aggregate unpaid principal amount of all advances made to
the Borrower by the Lender pursuant to subsection 1.1(a) of the Credit Agreement
(as hereinafter defined), at such times as are specified in and in accordance
with the provisions of the Credit Agreement.
This Amended and Restated Revolving Note is referred to in and is
executed and delivered pursuant to and evidences obligations of the Borrower
under that certain Second Amended and Restated Credit Agreement dated as of July
19, 2001, by and among the Borrower, Antares Capital Corporation, as Agent, BNP
Paribas and the Lenders thereunder (as the same may be amended, restated,
modified or supplemented and in effect from time to time, the "Credit
Agreement"), to which reference is hereby made for a statement of the terms and
conditions under which the Loans evidenced hereby are made and are to be repaid
and for a statement of the Lenders' remedies upon the occurrence of an Event of
Default as defined therein. This Amended and Restated Revolving Note is issued
pursuant to a decrease in the revolving credit facility and the addition of BNP
Paribas as a Lender under the Credit Agreement. No indebtedness evidenced by any
prior revolving note which is amended or restated hereby is or shall be deemed
to be repaid by the issuance of this Amended and Restated Revolving Note.
Capitalized terms used but not otherwise defined herein are used in this Amended
and Restated Revolving Note as defined in the Credit Agreement.
The Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof from the date hereof until payment in full hereof at the
rate from time to time applicable to the Revolving Loan as determined in
accordance with the Credit Agreement; provided, that upon the occurrence and
during the continuance of an Event of Default, the Borrower shall pay interest
on the outstanding principal balance of this Amended and Restated Revolving Note
at the rate of interest applicable upon the occurrence and during the
continuance of an Event of Default as determined in accordance with the Credit
Agreement. Prior to maturity, interest shall be payable in arrears on each
Interest Payment Date. Interest shall also be payable at maturity. From and
after the date when the principal balance hereof becomes due and payable,
whether by acceleration or otherwise, interest hereon shall be payable on
demand. Interest shall be calculated on the basis of a 360-day year for the
actual number of days elapsed.
11.1(d)-1
Except as otherwise provided in the Credit Agreement, if a payment
hereunder becomes due and payable on a day other than a Business Day, the due
date thereof shall be extended to the next succeeding Business Day, and interest
shall be payable thereon during such extension at the applicable rate specified
above.
In no contingency or event whatsoever shall interest charged hereunder,
however such interest may be characterized or computed, exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that the Lenders have received interest hereunder in excess of the
highest rate applicable hereto, such excess shall be applied or refunded in
accordance with the terms of the Credit Agreement.
The Agent shall have the exclusive right to apply and to reapply any
and all payments hereunder against the Obligations of the Borrower in such
manner, consistent with the Credit Agreement, as the Agent deems advisable.
The Borrower hereby waives demand, presentment and protest, and notice
of demand, presentment, protest and nonpayment. Except as otherwise provided in
the Credit Agreement and the other Loan Documents, the Borrower also waives all
rights to notice and hearing of any kind upon the occurrence of an Event of
Default prior to the exercise by the Agent, on behalf of the Lenders, of its
right to repossess the Collateral without judicial process or to replevy, attach
or levy upon the Collateral without notice or hearing.
THIS AMENDED AND RESTATED REVOLVING NOTE SHALL BE DEEMED TO HAVE BEEN
MADE AT CHICAGO, ILLINOIS AND SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF
ILLINOIS. WHENEVER IN THIS AMENDED AND RESTATED REVOLVING NOTE REFERENCE IS MADE
TO THE AGENT, THE LENDERS OR THE BORROWER, SUCH REFERENCE SHALL BE DEEMED TO
INCLUDE, AS APPLICABLE, REFERENCE TO THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF THIS AMENDED AND RESTATED REVOLVING NOTE SHALL BE BINDING UPON
AND SHALL INURE TO THE BENEFIT OF SUCH SUCCESSORS AND ASSIGNS, INCLUDING,
WITHOUT LIMITATION, ANY RECEIVER, TRUSTEE OR DEBTOR IN POSSESSION OF OR FOR THE
BORROWER.
LIFE TIME FITNESS, INC.
By: ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
11.1(d)-2
EXHIBIT 11.1(e) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
AMENDED AND RESTATED TERM NOTE
$ July 19, 2001
FOR VALUE RECEIVED, the undersigned, LIFE TIME FITNESS, INC., a
Minnesota corporation (the "Borrower"), hereby unconditionally promises to pay
to the order of ____________________ ("Lender"), at the office of the Agent at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the
Agent or the Lender may from time to time designate to the Borrower in writing,
in lawful money of the United States of America and in immediately available
funds, the principal sum of ____________________ ($____________), in a single
installment on the Revolving Termination Date.
This Amended and Restated Term Note is referred to in and is executed
and delivered pursuant to and evidences obligations of the Borrower under that
certain Second Amended and Restated Credit Agreement dated as of July 19, 2001,
by and among the Borrower, Antares Capital Corporation, as Agent, BNP Paribas
and the Lenders thereunder (as the same may be amended, restated, modified or
supplemented and in effect from time to time, the "Credit Agreement"), to which
reference is hereby made for a statement of the terms and conditions under which
the Loan evidenced hereby are made and are to be repaid and for a statement of
the Lenders' remedies upon the occurrence of an Event of Default as defined
therein. This Amended and Restated Term Note is issued pursuant to a decrease in
the aggregate outstanding, principal amount of the Term Loan under the Credit
Agreement. No indebtedness evidenced by any prior term note which is amended and
restated hereby is or shall be deemed to be repaid by the issuance of this
Amended and Restated Term Note. Capitalized terms used but not otherwise defined
herein are used in this Amended and Restated Term Note as defined in the Credit
Agreement.
The Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof from the date hereof until payment in full hereof at the
rate from time to time applicable to the Loan as determined in accordance with
the Credit Agreement; provided, that upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
outstanding principal balance of this Amended and Restated Term Note at the rate
of interest applicable to the Loans upon the occurrence and during the
continuance of an Event of Default as determined in accordance with the Credit
Agreement. Prior to maturity, interest shall be payable in arrears on each
Interest Payment Date. Interest shall also be payable at maturity. From and
after the date when the principal balance hereof becomes due and payable,
whether by acceleration or otherwise, interest hereon shall be payable on
demand. Interest shall be calculated on the basis of a 360-day year for the
actual number of days elapsed.
Except as otherwise provided in the Credit Agreement, if a payment
hereunder becomes due and payable on a day other than a Business Day, the due
date thereof shall be extended to the next succeeding Business Day, and interest
shall be payable thereon during such extension at the applicable rate specified
above.
11.1(e)-1
In no contingency or event whatsoever shall interest charged hereunder,
however such interest may be characterized or computed, exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that the Lenders have received interest hereunder in excess of the
highest rate applicable hereto, such excess shall be applied or refunded in
accordance with the terms of the Credit Agreement.
The Agent shall have the exclusive right to apply and to reapply any
and all payments hereunder against the Obligations of the Borrower in such
manner, consistent with the Credit Agreement, as the Agent deems advisable.
The Borrower hereby waives demand, presentment and protest, and notice
of demand, presentment, protest and nonpayment. Except as otherwise provided in
the Credit Agreement and the other Loan Documents, the Borrower also waives all
rights to notice and hearing of any kind upon the occurrence of an Event of
Default prior to the exercise by the Agent, on behalf of the Lenders, of its
right to repossess the Collateral without judicial process or to replevy, attach
or levy upon the Collateral without notice or hearing.
THIS AMENDED AND RESTATED TERM NOTE SHALL BE DEEMED TO HAVE BEEN MADE
AT CHICAGO, ILLINOIS AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED
TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS. WHENEVER
IN THIS AMENDED AND RESTATED TERM NOTE REFERENCE IS MADE TO THE AGENT, THE
LENDERS OR THE BORROWER, SUCH REFERENCE SHALL BE DEEMED TO INCLUDE, AS
APPLICABLE, REFERENCE TO THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THE PROVISIONS
OF THIS AMENDED AND RESTATED TERM NOTE SHALL BE BINDING UPON AND SHALL INURE TO
THE BENEFIT OF SUCH SUCCESSORS AND ASSIGNS, INCLUDING, WITHOUT LIMITATION, ANY
RECEIVER, TRUSTEE OR DEBTOR IN POSSESSION OF OR FOR THE BORROWER.
LIFE TIME FITNESS, INC.
By:_________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
11.1(e)-2
EXHIBIT 11.1(f) TO CREDIT AGREEMENT
DATED AS OF JULY 19, 2001
RENT RESERVE AGREEMENT
THIS RENT RESERVE AGREEMENT is made this 19th day of July, 2001 (the
"Agreement"), by and between LIFETIME FITNESS, INC., a Minnesota corporation
("Borrower") and ANTARES CAPITAL CORPORATION, a Delaware corporation ("Agent")
in its capacity as Agent for the Lenders.
WITNESSETH
WHEREAS, Borrower, Agent and the Lenders are parties to that certain
Credit Agreement dated as of November 18, 1997 (the "Original Credit
Agreement"), as amended and restated in that certain Amended and Restated Credit
Agreement dated as of October 11, 2001 (as amended prior to the date hereof, the
"Amended and Restated Credit Agreement") pursuant to which the Lenders have
agreed to make loans and other financial accommodations available to Borrower;
and
WHEREAS, Borrower has requested that Agent and the Lenders agree to
amend the Amended and Restated Credit Agreement in certain respects and pursuant
thereto Borrower, Agent and the Lenders are entering into that Second Amended
and Restated Credit Agreement dated as of the date hereof by and among Borrower,
Agent and the Lenders (the same, as it may be amended, restated, modified or
supplemented and in effect from time to time, being herein referred to as the
"Credit Agreement"), and the execution and delivery by Borrower of this
Agreement is a condition precedent to the agreement of Agent and the Lenders to
make extensions of credit to Borrower under the Credit Agreement; and
NOW THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as set forth below:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to such terms in the Credit Agreement.
2. Rent Reserve.
(a) On July 31, 2001, Borrower shall deposited with Agent the
sum of $1,500,000 in an interest bearing account, which account is
pledged to Agent (the "Rent Reserve Account"). All interest on such
account shall constitute income of the Borrower.
(b) On August 31, 2001 and September 28, 2001, Borrower shall
make deposits into the Rent Reserve Account, in amounts equal to
$1,200,000.
(c) At each time after the Effective Date that any real
Property of the Borrower or any of its Subsidiaries becomes an
Additional TIAA Property, the Borrower shall promptly (and in any event
within two Business Days) cause the amount on deposit
11.1(f)-1
in the Rent Reserve Account to be increased by an amount equal to five
(5) months of the required payments of principal and interest
applicable to such Additional TIAA Property.
(d) The Borrower shall cause the amount on deposit in the Rent
Reserve Account to be at least equal to five (5) months of the required
payments of principal, interest and real estate tax escrow payments
applicable to all outstanding TIAA Facilities, which amount shall be
subject to increase (or decrease) from time to time upon increase (or
decrease) of the TIAA Facilities (the "Rent Reserve Target Balance").
3. Security Interest. To secure the payment, performance and observance
of the Obligations, the Borrower hereby grants to Agent, for the benefit of
Agent and Lenders, a continuing security interest in, right of setoff against,
and an assignment to Agent of, all right, title and interest of the Borrower in
(a) the Rent Reserve Account, (b) all funds on deposit in the Rent Reserve
Account, (c) all proceeds of the funds on deposit in the Rent Reserve Account,
and (d) all replacements and substitutions of the funds in the Rent Reserve
Account. Pursuant to this Agreement, the Borrower has granted to Agent a direct
security interest in the aforesaid and such does not claimed them as proceeds of
other Collateral. Until expended or applied as provided below, all of the
aforesaid shall constitute additional security for the Obligations.
4. Use of Funds.
(a) If no Default or Event of Default has occurred and is
continuing and the Rent Reserve Account exceeds the Rent Reserve Target
Balance, then upon Borrower's written request to Agent, Agent shall
deliver to the Borrower such excess.
(b) The Agent may, at any time or from time to time, with or
without notice, apply funds in the Rent Reserve Account for the payment
of rent under the TIAA Subsidiary Leases, or other obligations of the
TIAA Subsidiaries under the TIAA Financing Agreement.
(c) After the occurrence and during the continuation of any
Event of Default, the Agent may, at any time or from time to time, with
or without notice, apply funds in the Rent Reserve Account to the
payment of the Obligations.
5. Representations and Warranties. The Borrower represents and warrants
to Agent and to each Lender that this Agreement is the legally valid and binding
obligation of the Borrower, enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws or equitable principles relating to or limiting
creditor's rights generally.
6. Events of Default. An "Event of Default" shall occur under this
Agreement upon the occurrence of (a) a breach of Borrower of any of the
covenants, agreements, representations, warranties or other provisions hereof or
(b) any other Event of Default described in the Loan Documents.
7. Care of Account. The Agent shall exercise reasonable care in the
custody and preservation or any funds held in the Rent Reserve Account and shall
be deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which
11.1(f)-2
the Agent accords to its own property, it being understood that the Agent shall
not have any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any such funds in the Rent Reserve Account.
8. Remedies Cumulative. In addition to all rights and remedies give to
Agent by this Agreement, Agent shall have all other rights and remedies of a
secured party under the UCC and any other Loan Document.
9. Further Assurances. Borrower will, from time to time, at its
expense, promptly execute and deliver all further instruments and documents and
take all further action that may be necessary or desirable, or that Agent may
request, in order to create, perfect and protect any security interests granted
or purported to be granted hereby or pursuant to any other Loan Document or to
enable Agent to exercise and enforce its rights and remedies hereunder, or under
any other Loan Document with respect to any Collateral.
10. Miscellaneous.
(a) Notices. All notices, requests, demands and other
communications hereunder shall be given in accordance with the notice
provision of the Credit Agreement.
(b) Successors and Assigns. This Agreement is for the benefit
of Agent and Lenders and their successors and assigns, and in the event
of an assignment of all or any of the Obligations, the rights
hereunder, to the extent applicable to the Obligations so assigned,
maybe transferred with such Obligations. This Agreement shall be
binding on the Borrower and its successors and assigns; provided that
Borrower may not delegate its obligations under this Agreement Without
Agent's prior written consent.
(c) Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement, and no
consent with respect to any departure by the Borrower therefrom, shall
be effective unless the same shall be in writing and signed by the
Required Lenders, the Borrower and acknowledged by the Agent, and then
such waiver shall be effective only in the specific instance and for
the specific purpose for which given.
(d) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(e) Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of Agent or any Lender in the exercise of
any power, right or privilege hereunder shall impair such power, right
or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise
thereof or any other right, power or privilege. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
11.1(f)-3
(f) Heading. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given
any substantive effect.
(g) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this
Agreement by signing any such counterpart.
(h) Survival. All representations and warranties of The
Borrower contained in this Agreement shall survive the execution and
delivery of this Agreement.
(i) Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement, any
instrument or agreement required hereunder or any other Loan Document.
(j) No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Borrower,
the Lenders and the Agent, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of,
or have any direct or indirect cause of action or claim in connection
with, this Agreement or any of the other Loan Documents. Neither the
Agent nor any Lender shall have any obligation to any Person not a
party to this Agreement or other Loan Documents.
[Balance of page intentionally left blank; signature page follows.]
11.1(f)-4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
LIFE TIME FITNESS, INC.
By:_____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Borrower's FEIN: ▇▇-▇▇▇▇▇▇▇
ANTARES CAPITAL CORPORATION, as Agent
and as a Lender
By:_____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
11.1(f)-5