EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered into
as of the 11th of July, 1997, by and between Bally Total Fitness Holding
Corporation, a Delaware corporation (the "Company"), and Ladenburg Xxxxxxxx
Capital Corporation, a Delaware corporation ("LTCC").
WHEREAS, the Company and LTCC have entered into that certain Warrant
Agreement dated as of an even date herewith (the "Warrant Agreement");
WHEREAS, pursuant to the terms of the Warrant Agreement the Company has
agreed to issue to LTCC warrants (the "Warrants") to purchase up to 250,000
shares of common stock, par value $.01 per share, of the Company ("Common
Stock"); and
WHEREAS, LTCC and the Company desire to enter into this Agreement to set
forth the terms pursuant to which the Company will file registration statements
under the Securities Act of 1933, as amended (the "Securities Act"), in order to
permit LTCC to offer and sell shares of Common Stock that LTCC may acquire
pursuant to LTCC's exercise of the Warrants.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Securities Subject to this Agreement. For purposes of this
Agreement, (a) the shares of Common Stock purchased and issued upon the exercise
of the Warrants ("Warrant Shares"), and (b) any Common Stock issued or issuable
with respect to the Warrant Shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganizations, shall be deemed "Registrable Securities" until such
time as (i) a registration statement covering such Registrable Securities has
been declared effective and such Registrable Securities have been disposed of
pursuant to such effective registration statement or (ii) such Registrable
Securities are transferred pursuant to Rule 144 (or any similar provision then
in force) under the Securities Act, whichever is earlier.
2. Demand Registration.
(a) Request for Registration. At any time prior to the fifth
anniversary date of this Agreement, LTCC may make a written request for
registration under the Securities Act of not less than fifty percent (50%)
of the total number of Registrable Securities then outstanding (a "Demand
Registration"); provided that the Company need effect only one (1) Demand
Registration pursuant to this Section 2(a). Such request for a Demand
Registration will specify the aggregate number of shares of Registrable
Securities proposed to be sold and will also specify the intended method
of disposition thereof.
(b) Effective Registration and Expenses. A registration will not
be deemed a Demand Registration until it has become effective under the
Securities Act. In any registration initiated as a Demand Registration,
the Company will pay or cause to be paid all
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Registration Expenses (as defined in Section 6 below) in connection
therewith, whether or not the registration statement becomes effective.
(c) Underwriting. If LTCC so elects, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in
the form of an underwritten offering through the underwriter(s) they
designate; provided, however, that such underwriter must be reasonably
satisfactory to the Company. If the underwriter does not limit the number
of Registrable Securities to be underwritten in a Demand Registration, the
Company may include securities for its own account or the account of
others in such registration if the underwriters so agree and if the number
of Registrable Securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(d) Delay of Demand Registration. Notwithstanding any other
provision of this Agreement, if the underwriters for the Company determine
that an offering by the Company then being conducted or about to be
conducted would be adversely affected by a Demand Registration, the
Company may delay such a Demand Registration for a period of up to sixty
(60) days.
3. Piggy-back Registration. If prior to the seventh anniversary date of
this Agreement, the Company proposes to file a registration statement (other
than a Demand Registration) under the Securities Act with respect to an offering
by the Company for its own account or for the account of others (other than a
registration statement (i) on Forms S-4 or S-8, (ii) filed in connection with an
exchange offer or an offering of securities solely to the Company's existing
stockholders, or (iii) a registration statement initially filed prior to the
date hereof) of any class of equity security of the Company, then the Company
shall in each case give written notice of such proposed filing to LTCC at least
ten (10) days before the anticipated filing date, and such notice shall offer
LTCC the opportunity to register such Registrable Securities as LTCC may request
(a "Piggy-back Registration"). Upon the request of LTCC received by the Company
within ten (10) days after the receipt by LTCC of the Company's notice of
intention to file the proposed registration statement, the Company shall include
in such registration and qualification for sale under the blue sky or securities
laws of the various states, and in any underwriting in connection therewith, the
number of shares of Registrable Securities held and requested to be registered
by LTCC, which may be all or a part of LTCC's Registrable Securities.
The Company shall use all reasonable efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit LTCC
to include such Registrable Securities in such offering on the same terms and
conditions as any similar securities of the Company included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such offering delivers an opinion to LTCC that the number of shares which they
or the Company intend to include in such offering is so large as to materially
and adversely affect the success of such offering (including the price at which
such securities can be sold), then the amount of securities to be offered for
the account of LTCC shall be reduced to the extent necessary to reduce the
number of shares to be included in such offering to the number recommended by
such managing underwriter or underwriters.
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4. Holdback Agreements
(a) Restrictions on Public Sale by LTCC. To the extent not
inconsistent with applicable law, LTCC agrees not to effect any public
sale or distribution of Common Stock during the fourteen (14) days prior
to, and during the 90-day period beginning on, the effective date of a
registration statement that includes Registrable Securities (except as
part of such registration), but only if and to the extent requested in
writing (with reasonable prior notice) by the managing underwriter or
underwriters in the case of an underwritten public offering by the Company
of securities similar to the Registrable Securities or by the Company in
the case of such an offering that is not underwritten.
(b) Restrictions on Public Sale by the Company. The Company agrees
not to effect any public sale or distribution of Common Stock during the
fourteen (14) days prior to, and during the 90-day period beginning on,
the effective date of any registration statement which includes
Registrable Securities (except as part of such registration).
5. Registration Procedures. Whenever any Registrable Securities are to
be registered pursuant to Sections 2 or 3 of this Agreement, the Company will
use all reasonable efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof promptly, and in connection with a Demand Registration and with any
Piggy-back Registration, the Company will promptly:
(a) prepare and file with the Commission a registration statement
which includes the Registrable Securities and use all reasonable efforts
to cause such registration statement to become effective; provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by reference after
the initial filing of the registration statement, the Company will furnish
to LTCC and to the underwriters, if any, draft copies of all such
documents proposed to be filed at least five (5) business days prior
thereto, which documents will be subject to the reasonable review of LTCC
and such underwriters, and the Company will not, unless required by law,
file any registration statement or amendment thereto or any prospectus or
any supplement thereto (including such documents incorporated by
reference) to which LTCC shall reasonably object. The Company will notify
LTCC of any stop order issued or threatened by the Securities and Exchange
Commission (the "Commission") in connection therewith and take all
reasonable actions required to prevent the entry of such stop order or to
remove it if entered;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the registration statement as may be
necessary to keep the registration statement effective for a period of not
less than 360 days (or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been
sold or withdrawn, but not prior to the expiration of the applicable
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable); cause the
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prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities
Act; and comply with the provisions of the Securities Act applicable to it
with respect to the disposition of all securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition thereof set forth in such registration
statement or supplement to the prospectus;
(c) furnish to LTCC and the underwriter or underwriters, if any,
without charge, such number of conformed copies of the registration
statement and any post-effective amendment thereto and such number of
copies of the prospectus (including each preliminary prospectus) and any
amendments or supplements thereto, and any documents incorporated by
reference therein, as LTCC or such underwriter may request in order to
facilitate the disposition of the Registrable Securities being sold by
such holder (it being understood that the Company consents to the use of
the prospectus and any amendment or supplement thereto by LTCC and the
underwriter or underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by the prospectus or any
amendment or supplement thereto);
(d) notify LTCC at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities
Act, when the Company becomes aware of the happening of any event as a
result of which the prospectus included in such registration statement (as
then in effect) contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein in light
of the circumstances under which they were made, not misleading and, as
promptly as practicable thereafter, prepare and file with the Commission
and furnish a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(e) make generally available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
no later than 60 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of the registration statement, which earnings statement
shall cover said 12-month period, and which requirement will be deemed to
be satisfied if the Company timely files complete and accurate information
on forms 10-Q, 10-K and 8-K under the Securities Exchange Act of 1934, as
amended, and otherwise complies with Rule 158 under the Securities Act as
soon as possible;
(f) make reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible moment;
(g) if requested by the managing underwriter or underwriters or
LTCC, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the
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managing underwriter or underwriters requests, or LTCC reasonably
requests, to be included therein, including, without limitation, with
respect to the principal amount of Registrable Securities being sold by
LTCC to such underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any other
terms of the underwritten offering of the Registrable Securities to be
sold in such offering, and promptly make all required filings of such
prospectus supplement or post-effective amendment;
(h) as promptly as practicable after filing with the Commission of
any document which is incorporated by reference into a registration
statement, deliver a copy of such document to LTCC;
(i) on or prior to the date on which the registration statement is
declared effective, use all reasonable efforts to register or qualify, and
cooperate with LTCC, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the
Registrable Securities covered by the registration statement for offer and
sale under the securities or blue sky laws of each state and other
jurisdiction of the United States as LTCC or any such underwriter requests
in writing, to use all reasonable efforts to keep each such registration
or qualification effective, including through new filings, or amendments
or renewals, during the period such registration statement is required to
be kept effective and to do any and all other acts or things necessary or
advisable to enable the disposition in all such jurisdictions of the
Registrable Securities covered by the applicable registration statement;
provided that the Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process in any
such jurisdiction where it is not then so subject;
(j) cooperate with LTCC and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities
sold under the registration statement, and enable such securities to be in
such denominations and registered in such names as the managing
underwriter or underwriters, if any, or LTCC may request;
(k) use all reasonable efforts to cause the Registrable Securities
covered by the registration statement to be registered with or approved by
such other governmental agencies or authorities within the United States
including the blue sky or securities administrators of such jurisdictions
as may be requested by LTCC, as may be necessary to enable LTCC or the
underwriter or underwriters, if any, to consummate the disposition of such
securities;
(l) if applicable, enter into such customary agreements (including
an underwriting agreement in customary form) and take such other actions
as LTCC or the underwriters, if any, request in order to expedite or
facilitate the disposition of such Registrable Securities;
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(m) make available for inspection by LTCC, any underwriter
participating in any disposition pursuant to such registration statement,
and any attorney, accountant or other agent retained by LTCC or any such
underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information
requested by any such Inspector in connection with such registration
statement; provided that the Company shall not be required to provide any
information under this paragraph if to do so would cause the Company to
forfeit an attorney-client privilege that was applicable to such
information; and provided further, that Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed to the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or correct
a misstatement or omission in the registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction; provided that prior to furnishing
any such information, the Company shall be entitled to require LTCC to
enter into a confidentiality agreement in customary form and subject to
customary exceptions and provided, further, that any decision not to
disclose information pursuant to clause (i) shall be made after
consultation with counsel for the Company and counsel for LTCC; and LTCC
agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdictions give notice to the Company
and allow the Company at its expense, to undertake appropriate action and
to prevent disclosure of the Records deemed confidential; and
(n) use all reasonable efforts to obtain a cold comfort letter
from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort
letters as LTCC or the underwriters, if any, shall reasonably request.
Upon receipt of any notice from the Company of the happening of any event
of the described in subsection (d) of this Section 5, LTCC will forthwith
discontinue disposition of the Registrable Securities until receipt of the
copies of the supplemented or amended prospectus contemplated by subsection (d)
of this Section 5 or until it is advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus and, if so directed by the Company, LTCC will, or will request
the managing underwriter or underwriters, if any, to, deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods mentioned in subsection (b) of this
Section 5 shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
LTCC shall have received the copies of the supplemented or amended prospectus
contemplated by subsection (d) of this Section 5 or the Advice.
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6. Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement including without limitation,
all Commission and securities exchange or NASD registration and filing fees,
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, printing
expenses, messenger and delivery expenses, internal expenses (including without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), the fees and expenses incurred in
connection with the listing of the securities to be registered, if any, on each
securities exchange on which similar securities issued by the Company are then
listed and reasonable fees and disbursement of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or "cold comfort" letters required by or incident to such performance),
securities act liability insurance (if the Company elects to obtain such
insurance), the reasonable fees and expenses of any special experts retained by
the Company in connection with such registration, reasonable fees and expenses
of counsel for LTCC incurred in connection with each registration hereunder (but
not including any underwriting fees, discounts or commissions attributable to
the sale of Registrable Securities which shall be paid by LTCC) and any
reasonable out-of-pocket expenses of LTCC excluding any travel costs and counsel
fees except as set forth above (all such expenses being herein called
"Registration Expenses") will be borne by the Company.
7. Indemnification; Contribution
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless LTCC, its officers, directors and each person
who controls such holder (within the meaning of the Securities Act), and
any agent or investment adviser thereof against all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue or alleged untrue
statement of material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary prospectus
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same arise out of or are based upon
any such untrue statement or omission based upon information with respect
to LTCC furnished in writing to the Company by or on behalf of LTCC
expressly for use therein; provided that, in the event that the prospectus
shall have been amended or supplemented and copies thereof, as so amended
or supplemented, shall have been furnished to LTCC prior to the
confirmation of any sales of Registrable Securities, such indemnity with
respect to the prospectus shall not inure to the benefit of LTCC if the
person asserting such loss, claim, damage or liability did not, at or
prior to the confirmation of the sale of the Registrable Securities to
such person, receive a copy of the prospectus as so amended or
supplemented and the untrue statement or omission of a material fact
contained in the prospectus was corrected in the prospectus as so amended
or supplemented. In connection with an underwritten offering, the Company
will indemnify the underwriters thereof, their officers and directors and
each person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above
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with respect to the indemnification of LTCC except with respect to
information provided by the underwriter specifically for inclusion
therein.
(b) Indemnification by LTCC. In connection with any registration
statement in which LTCC participates, LTCC will furnish to the Company in
writing such information with respect to LTCC as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and agrees to indemnify, to the extent permitted by law, the
Company, its directors and officers and each person who controls the
Company (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact or any omission of a material fact required
to be stated in the registration statement or prospectus or any amendment
thereof or supplement thereto or necessary to make the statements therein
not misleading, to the extent, but only to the extent, that such untrue
statement is contained in or such omission relates to any information with
respect to LTCC so furnished in writing by LTCC specifically for inclusion
in any prospectus or registration statement. In no event shall the
liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by such
holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice
of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such person will claim
indemnification or contribution pursuant to this Agreement and, unless in
the reasonable judgment of counsel of such indemnified party a conflict of
interest may exist between such indemnified party and the indemnifying
party with respect to such claim, permit the indemnifying party to assume
the defense of such claim; provided, however, that the omission to so
notify the indemnifying party of any such action shall not release the
indemnifying party from any liability it may have to such indemnified
party otherwise than on account of the indemnification provisions
contained in subsection (a) and (b) above to the extent that the failure
to provide such timely notice does not adversely impact the ability of the
indemnifying party to defend such claim. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnifying party
will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. If the indemnifying
party is not entitled to, or elects not to, assume the defense of a claim,
it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the reasonable judgment of
any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect
to such claim, in which event the indemnifying party shall be obligated to
pay the fees and expenses of such additional counsel or counsels.
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(d) Contribution. If the indemnification provided for in this
Section 7 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified
parties in connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified parties,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 7(c), any reasonable legal or other fees
or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 7(d),
no underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and LTCC shall not be required
to contribute any amount in excess of the amount by which the total price
at which the Registrable Securities of LTCC were offered to the public
exceeds the amount of any damages which LTCC has otherwise been required
to pay by reason of such untrue statement or omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 7(a) and (b) without regard to the relative
fault of said indemnifying party or indemnified party or any other
equitable consideration provided for in this Section 7(d).
(e) The respective indemnity and contribution agreements by the
Company and the selling holder of Registrable Securities in Subsections
(a), (b), (c) and (d) of this Section 7 shall remain operative and in full
force and effect regardless of (i) any investigation made by any selling
holder of Registrable Securities or by or on behalf of any person who
controls such selling holder or by the Company or any controlling person
of the Company or any
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director or any officer of the Company, (ii) payment for any of the
Registrable Securities, or (iii) any termination of this Agreement, and
shall survive the delivery of the Registrable Securities, and any
successor of the Company, or of any selling holder of Registrable
Securities, or of any person who controls the Company or of any selling
holder of Registrable Securities, as the case may be, shall be entitled to
the benefit of such respective indemnity and contribution agreements. The
respective indemnity and contribution agreements by the Company and the
selling holder of Registrable Securities contained in Subsections (a),
(b), (c) and (d) of this Section 7 shall be in addition to any liability
which the Company and the selling holder of Registrable Securities may
otherwise have.
8. Transfer or Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities granted pursuant to this
Agreement may be transferred or assigned by LTCC to one or more transferees or
assignees of the Registrable Securities or the Warrants; provided, however, that
the transferee or assignee of such rights assumes the obligations of such
transferor or assignor, as the case may be, under this Agreement. In the event
that LTCC transfers or assigns its rights under this Agreement to one or more
transferees or assignees in accordance with this Section 8, all references to
"LTCC" throughout this Agreement shall be deemed to refer collectively to LTCC
and the transferees or assignees of the Registrable Securities or the Warrants.
9. Miscellaneous.
(a) Remedies. In addition to being entitled to exercise all rights
granted by law, including recovery of damages, LTCC will be entitled to
specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Amendments. This Agreement may not be amended, modified or
supplemented, except in a written amendment signed by the Company and
LTCC.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopier,
registered or certified mail (return receipt requested), postage prepaid
or courier to the parties at the following addresses (or at such other
address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt
thereof). Notices sent by mail shall be effective two days after mailing,
notices sent by telex shall be effective when answered back, notices sent
by telecopier shall be effective when receipt is acknowledged, and notices
sent by courier guaranteeing next day delivery shall be effective on the
next business day after timely delivery to the courier:
(i) if to LTCC, at the following address: 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx; and
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(ii) if to the Company, at the following address:
Bally Total Fitness Holding Corporation, 0000 Xxxx Xxxx Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel, Telecopy No.
(000) 000-0000.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed wholly within that State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby.
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(i) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and is intended to be the complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BALLY TOTAL FITNESS HOLDING CORPORATION
By:
Its:
LADENBURG XXXXXXXX CAPITAL CORPORATION
By:
Its:
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