exv10w38






EXHIBIT 10.38




AMENDMENT NO. 2

TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This Amendment No. 2 to Second Amended and Restated Credit Agreement, dated as of June 10,
2008 (the “Amendment”), among LIFE TIME FITNESS, INC., a Minnesota corporation (the
“Borrower”), the banks from time to time party hereto (individually, a “Bank” and,
collectively, the “Banks”), and U. S. BANK NATIONAL ASSOCIATION, a national banking
association, one of the Banks, as Administrative Agent for the Banks (in such capacity, the
“Agent”) and Lead Arranger, and J. P. MORGAN SECURITIES INC. and ROYAL BANK OF CANADA, as
Co-Syndication Agents, and BMO Capital Markets, as Documentation Agent.



RECITALS:




     A. The Borrower, the Banks, the Agent, the Lead Arranger, the Co-Syndication Agents and the
Documentation Agent are the parties to that certain Second Amended and Restated Credit Agreement
dated as of May 31, 2007, as amended by an Amendment No. 1 to Second Amended and Restated Credit
Agreement, dated as of January 24, 2008, a First Accordion Increase to Second Amended and Restated
Credit Agreement dated as of April 10, 2008 and a Second Accordion Increase to Second Amended and
Restated Credit Agreement dated as of May 28, 2008 (as so amended, the “Original Agreement”).



     B. The Borrower has requested that the Agent and the Banks further amend certain provisions of
the Original Agreement.



     C. Subject to the terms and conditions of this Amendment, the Agent and the Banks will agree
to the foregoing request of the Borrower.




	 	 	NOW, THEREFORE, the parties agree as follows:





     1. Defined Terms. All capitalized terms used in this Amendment shall, except where
the context otherwise requires, have the meanings set forth in the Original Agreement as amended
hereby.



     2. Amendments. The Original Agreement is hereby further amended as follows:




     (a) The definition of “Club” appearing in Section 1.1 of the Original Agreement
is amended in its entirety to read as follows:




     “‘Club’: A health club facility that is owned by the Borrower or is
leased by the Borrower or Operations pursuant to a LTF Lease.”




     (b) Subpart (b)(vi) of the definition of “Permitted Permanent Loan” appearing
in Section 1.1 of the Original Agreement is amended in its entirety to read as follows:



 









 






     “(vi)(A) the Clubs are leased to Operations pursuant to a LTF Lease;
provided, that such LTF Lease shall not require Operations to pay more than
the market rate for such Club as of the effective date of such LTF Lease, plus
increases not to exceed market increases; and (B) the Borrower may guaranty
Operations’ obligations under the relevant LTF Lease; provided, that the
Borrower’s lease guaranty obligations shall not be materially greater than that
incurred by the Borrower pursuant to the LTF CMBS I Related Agreements and the
Related Agreements establishing such lease guaranty obligations shall comply with
the last paragraph of this definition;”.




     (c) Section 2.14 (a) of the Original Agreement is amended by increasing the amount of
the Swingline Commitment Amount from “$35,000,000” to “$50,000,000”.




     (d) Section 6.11(d) of the Original Agreement is amended in its entirety to read as
follows:




     “(d) Indebtedness (including, without limitation, Capitalized Lease Obligations
(other than those arising from a sale-leaseback transaction permitted by Section
6.18(b)) incurred by the Borrower that are secured by Liens permitted under Section
6.12(i) hereof, not to exceed the sum of: (i) $15,000,000 during the term of this
Agreement; plus (ii) Capitalized Lease Obligations arising from a
sale-leaseback transaction permitted by Section 6.18(b); plus (iii) up to
$10,000,000 (including, without limitation, the outstanding principal balance of any
Indebtedness permitted by Section 6.11(c) above) during the term of this Agreement
for the purpose of financing the acquisition of aircraft by the Borrower or one of
its Subsidiaries; plus (iv) Capitalized Lease Obligations arising from RE
CO’s entering into a ground lease of real estate on which the Borrower intends to
construct the improvements for a Club.”



     3. Conditions to Effectiveness. This Amendment shall become effective on the date
(the “Effective Date”) when, and only when, the Agent shall have received:




     (a) Counterparts of this Amendment executed by the Borrower and the Majority Banks;




     (b) A Replacement Swingline Note (the “Replacement Swingline Note”) in the form
provided by the Agent appropriately completed and duly executed by the Borrower;




     (c) A certificate of the Secretary of the Borrower having attached (i) a copy of the
corporate resolution of the Borrower authorizing the execution, delivery and performance of
this Amendment and any other documents to be executed and/or delivered by the Borrower in
connection herewith, certified by the Secretary or an Assistant Secretary of the Borrower;
and (ii) an incumbency certificate showing the names and titles, and bearing the signatures
of, the officers of the Borrower authorized to execute



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this Amendment and such other documents to be executed and/or delivered by the Borrower
in connection herewith;




     (d) A certificate of good standing for the Borrower in the jurisdiction of its
incorporation or organization;




     (e) An Acknowledgment and Agreement in the form provided by the Agent appropriately
completed and duly executed by each Loan Party other than the Borrower; and




     (f) Such other approvals, opinions or documents as the Agent or any Bank may reasonably
request.



     4. Representations and Warranties. To induce the Agent and the Banks to enter into
this Amendment, the Borrower represents and warrants to the Agent and the Banks as follows:




     (a) The execution, delivery and performance by the Borrower of this Amendment, the
Replacement Swingline Note, and any other document to be executed and/or delivered by the
Borrower in connection herewith have been duly authorized by all necessary corporate action,
do not require any approval or consent of, or any registration, qualification or filing
with, any government agency or authority or any approval or consent of any other person
(including, without limitation, any stockholder) that has not been obtained, do not and will
not conflict with, result in any violation of or constitute any default under, any provision
of the Borrower’s articles of incorporation or bylaws, any agreement binding on or
applicable to the Borrower or any of its property, or any law or governmental regulation or
court decree or order, binding upon or applicable to the Borrower or any of its property and
will not result in the creation or imposition of any security interest or other lien or
encumbrance in or on any of its property pursuant to the provisions of any agreement
applicable to the Borrower or any of its property except pursuant to the Loan Documents to
which the Borrower is a party;




     (b) The representations and warranties respectively contained in Article IV of the
Original Agreement are true and correct as of the date hereof as though made on that date
except: (i) to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct in all material respects as of such
earlier date; and (ii) the representations and warranties set forth in Section 4.5 to the
Borrower’s financial statements shall be deemed to refer to the financial statements then
most recently delivered to the Banks pursuant to Section 5.1(a) or (b), as the case may be;
provided, that the unaudited interim financial statements do not comply with GAAP because of
the absence of footnotes and are subject to immaterial year-end audit adjustments;




     (c) No events have taken place and no circumstances exist at the date hereof which
would give the Borrower the right to assert a defense, offset or counterclaim to any claim
by the Agent or any Bank for payment of the Obligations now existing or



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hereafter arising under the Original Agreement as amended by this Amendment or any
other Loan Document;




     (d) The Original Agreement, as amended by this Amendment, the Replacement Swingline
Note, and each other Loan Document to which the Borrower is a party remain in full force and
effect and are the legal, valid and binding obligations of the Borrower and are enforceable
in accordance with their respective terms, subject only to limitations as to enforceability
which might result from bankruptcy, insolvency, moratorium and other similar laws affecting
creditors’ rights generally and subject to limitations on the availability of equitable
remedies; and




     (e) No Default, Event of Default or Material Adverse Occurrence has occurred and is
continuing as of the date hereof after giving effect to this Amendment.



     5. Reference to and Effect on the Loan Documents.




     (a) From and after the date of this Amendment, each reference in:




     (i) the Original Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”
or words of like import referring to the Original Agreement, and each reference to
the “Agreement”, “thereunder”, “thereof”, “therein” or words of like import
referring to the Original Agreement in any other Loan Document shall mean and be a
reference to the Original Agreement as amended hereby; and




     (ii) any Loan Document to the “Swingline Note”, “thereunder”, “thereof”,
“therein” or words of like import referring to the Swingline Note shall mean and be
a reference to the Replacement Swingline Note executed and delivered by the Borrower
pursuant to this Amendment.




     (b) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of the Agent or
any Bank under the Original Agreement or any other Loan Document, nor constitute a waiver of
any provision of the Original Agreement or any such other Loan Document.



     6. Costs, Expenses and Taxes. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the preparation, reproduction, execution and delivery of
this Amendment and the other documents to be delivered hereunder or thereunder, including their
reasonable attorneys’ fees and legal expenses. In addition, the Borrower shall pay any and all
stamp and other taxes and fees payable or determined to be payable in connection with the execution
and delivery, filing or recording of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Agent and each Bank harmless from and against any and
all liabilities with respect to, or resulting from, any delay in the Borrower’s paying or omission
to pay, such taxes or fees.



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     7. Governing Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS AMENDMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO
NATIONAL BANKS.



     8. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.



     9. Counterparts. This Amendment may be executed in separate counterparts and by
separate parties in separate counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same Amendment.



     10. Recitals. The Recitals hereto are incorporated herein by reference.



[SIGNATURE PAGES FOLLOW]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized as of the date first written above.



	 	 	 	 	 
	 	LIFE TIME FITNESS, INC.

 	 
	 	By:  	 	 
	 	Name: Eric J. Buss 	 
	 	Title: Secretary 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Agent and as a Bank

 	 
	 	By:  	 	 
	 	Name: Karen E. Weathers 		 
	 	Title: Vice President 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT





 









 







	 	 	 	 	 
	 	JPMorgan Chase Bank, N. A.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	 	Royal Bank of Canada

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	 	Bank of Montreal

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




 









 






	 	 	 	 	 
	 	Bank of the West, a California banking corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	 	M&I Marshall & Ilsley Bank

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 	 	 	 	 
	 	and  	 	 
	 	 	 	 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 



 









 







	 	 	 	 	 
	 	National City Bank

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




 









 






	 	 	 	 	 
	 	Associated Bank, National Association

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




	 	 	 	 	 



 









 






	 	 	 	 	 
	 	RBS Citizens, N.A.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




 









 






	 	 	 	 	 
	 	MB Financial Bank, N.A.

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



SIGNATURE PAGE: AMENDMENT NO. 2 TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT