THIRD AMENDMENT AND WAIVER
Exhibit 10.1
EXECUTION COPY
THIRD AMENDMENT AND WAIVER
THIRD AMENDMENT AND WAIVER, dated as of March 24, 2006 (this “Amendment”), under the
CREDIT AGREEMENT, dated as of November 18, 1997, as amended and restated as of October 14, 2004 (as
in effect on the date immediately prior to the date hereof, the “Credit Agreement”), among
BALLY TOTAL FITNESS HOLDING CORPORATION, a Delaware corporation (the “Borrower”), the
lenders parties thereto (the “Lenders”), JPMORGAN CHASE BANK, N.A., as agent for the
Lenders (the “Agent”), DEUTSCHE BANK SECURITIES, INC., as Syndication Agent, and LASALLE
BANK NATIONAL ASSOCIATION, as Documentation Agent. Terms used herein, but not defined, shall have
the respective meanings set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower has requested, and the undersigned Lenders wish to consent to, certain
amendments to and waivers of the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendments to Credit Agreement. (a) Section 1.01 of the 2006 Credit Agreement is
amended by adding the following new definitions in proper alphabetical order:
“Third Amendment” means the Third Amendment and Waiver dated as of
March 24, 2006 to this Agreement.
“2006 Bond Waivers” means the waivers with respect to the
Senior Unsecured Notes Indenture and the Subordinated Notes Indenture
described in the Third Amendment.
(b) Section 1.01 of the Credit Agreement is amended by deleting the text “less, for purposes
of Section 6.12 only...” to the end of the definition of “Consolidated Interest Expense”
and replacing it with the following text:
, less, for purposes of Section 6.12 only and without duplication,
to the extent added in determining such aggregate amount of interest for
such period, any amortization of consent fees and expenses paid by the
Borrower (x) in connection with the Bond Waivers including, but not limited
to, fees paid to the Agent and the Lenders in connection with the Bond
Waivers and the extension of the Credit Agreement Default Date and (y) in
connection with the 2006 Bond Waivers, including, but not limited to, fees
paid to the Agent and the Lenders.
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(c) Section 7.08(d) of the Credit Agreement is hereby amended by inserting in clause (1)
thereof following the phrase “the value of such dispositions does not exceed $10,000,000 in any
fiscal year, including the 2004 fiscal year” the following parenthetical:
(it being understood that as of the effectiveness date of the Third Amendment, the
Borrower and its Subsidiaries have no more capacity to exclude Reinvestment Proceeds
from the calculation of any Net Cash Proceeds received in the Borrower’s 2006 fiscal
year; and provided, further, that in the 2006 fiscal year, the value
of the assets subject to such dispositions shall not exceed $15,000,000)
(d) Section 9.01 of the Credit Agreement is hereby amended by adding the following paragraph
at the end thereof:
If the time period provided for delivery of documents or notices required under any
provision of the Credit Documents would end on a day which is not a Banking Day,
such time period shall be extended to the next Banking Day.
2. Waivers; Acknowledgements.
(a) Notwithstanding the provisions of Section 7.04 of the Credit Agreement, the Lenders
consent to the amendments and waivers of the Senior Unsecured Notes Indenture and the Subordinated
Notes Indenture and the payments related thereto on the terms and conditions set forth in Exhibit A
to this Amendment.
(b) The Lenders waive any Default or Event of Default that has resulted or might result from
the occurrence of any of the following:
(i) failure by the Borrower to deliver (A) audited financial statements of the Borrower
and its Subsidiaries for the Borrower’s 2005 fiscal year, together with the related
accountants’ certification, as required pursuant to Section 6.03(b)(ii) of the Credit
Agreement, (B) the officer’s certificate required to be delivered in connection with the
financial statements referred to in clause (A) pursuant to Section 6.03(e) of the Credit
Agreement and (C) copies of the combined balance sheet, statements of income and retained
earnings of the Unrestricted Subsidiaries required to be delivered in connection with the
financial statements referred to in clause (A) pursuant to Section 6.03(j) of the Credit
Agreement, in each case, on the date required by such provisions, provided, that (x)
unaudited consolidated financial statements of the Borrower and its Subsidiaries of the
types described in Sections 6.03(b)(ii) and 6.03(j) for the Borrower’s 2005 fiscal year,
together with the officer’s certificate referred to in clause (B) above, are delivered no
later than April 14, 2006, and (y) audited financial statements of the Borrower and its
Subsidiaries for the Borrower’s 2005 fiscal year, together with the related accountants’
certification, as required by Section 6.03(b)(ii) of the Credit Agreement, and the related
officer’s certificate, as required by Section 6.03(e) of the Credit Agreement, are delivered
as required by the Credit Agreement no later than July 10, 2006;
(ii) failure by the Borrower to deliver (A) unaudited financial statements of the
Borrower for the first quarter of the Borrower’s 2006 fiscal year as required pursuant to
Section 6.03(a) of the Credit Agreement, together with the related officer’s certificate,
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as required pursuant to Section 6.03(e) of the Credit Agreement, and (B) copies of the
combined balance sheet, statements of income and retained earnings of the Unrestricted
Subsidiaries required to be delivered in connection with the financial statements referred
to in clause (A) pursuant to Section 6.03(j) of the Credit Agreement, in each case, on the
date required by such provisions, provided, that such financial statements and
certificate are delivered as required by the Credit Agreement no later than July 10, 2006;
(iii) failure by the Borrower to deliver (A) unaudited financial statements of the
Borrower for the second quarter of the Borrower’s 2006 fiscal year as required pursuant to
Section 6.03(a) of the Credit Agreement, together with the related officer’s certificate, as
required pursuant to Section 6.03(e) of the Credit Agreement, and (B) copies of the combined
balance sheet, statements of income and retained earnings of the Unrestricted Subsidiaries
required to be delivered in connection with the financial statements referred to in clause
(A) pursuant to Section 6.03(j) of the Credit Agreement, in each case, on the date required
by such provisions, provided, that such financial statements and certificate are
delivered as required by the Credit Agreement no later than September 11, 2006, or in the
event that the Borrower elects its option to extend under the 2006 Bond Waivers, October 11,
2006; and
(iv) with respect to Section 8.07 of the Credit Agreement, any breach of Section 10.17
of the Senior Unsecured Notes Indenture or Section 10.17 of the Subordinated Notes Indenture
as a result of the failure of the Borrower to timely file financial statements with the SEC
for the Borrower’s 2005 fiscal year; provided, that notwithstanding the foregoing
such Default or Event of Default shall arise relating to the financial statements for the
Borrower’s 2005 fiscal year, on the later of (x) April 14, 2006 and (y) 10 days after a
notice of default of the type described in Section 5.1(c) of the Senior Unsecured Note
Indenture or Section 5.1(c) of the Subordinated Note Indenture shall have been delivered,
unless such default shall have been cured or waived, or such notice of default shall have
been withdrawn.
3. Conditions to Effectiveness of this Amendment. This Amendment shall become
effective as of the date first set forth above (the “Effective Date”) at such time as:
(i) the Agent shall have received counterparts of this Amendment duly executed and delivered
by a duly authorized officer of each of the Borrower, each Guarantor and the Majority Lenders; and
(ii) the Agent shall have received payment of all fees and expenses of the Agent and the
Lenders that are due and payable on or prior to the Effective Date in connection with this
Amendment.
4. Consent Fee. The Borrower agrees to pay to the Agent for the account of each
Lender which executes and delivers this Amendment by 5:00 p.m. EST on March 30, 2006, an amendment
fee equal to 0.75% of the sum of such Lender’s Term Advances and Revolving Credit Commitments on
the Effective Date, earned, due and payable on the Effective Date;
provided, that in the event the Borrower elects its option to extend the 2006 Bond
Waivers in respect of its unaudited financial statements for the second quarter of the Borrower’s
2006 fiscal
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year until October 11, 2006, each Lender under the Credit Agreement shall be entitled
to an additional amendment fee equal to 0.125% of the sum of such Lender’s Term Advances and
Revolving Credit Commitments on the date the Borrower makes such election (which may be no later
than September 11, 2006), earned, due and payable on such date.
5. Representations and Warranties. The Borrower represents and warrants to each
Lender that as of the Effective Date after giving effect to this Amendment: (a) the
representations and warranties made by the Credit Parties in the Credit Documents are true and
correct in all material respects on and as of the date hereof (except to the extent that such
representations and warranties are expressly stated to relate to an earlier date, in which case
such representations and warranties shall have been true and correct in all material respects on
and as of such earlier date) and (b) no Default or Event of Default shall have occurred and be
continuing as of the date hereof after giving effect to this Amendment.
6. Counterparts. This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts (including by facsimile transmission), and all of
said counterparts taken together shall be deemed to constitute one and the same instrument. The
execution and delivery of this Amendment by any Lender shall be binding upon each of its successors
and assigns and binding in respect of all of its Commitments and Advances, including any acquired
subsequent to its execution and delivery hereof and prior to the effectiveness hereof.
7. Continuing Effect; No Other Amendments. This Amendment is to be narrowly
constructed. Except to the extent the Credit Agreement is expressly amended hereby, all of the
terms and provisions of the Credit Agreement and the other Credit Documents are and shall remain in
full force and effect. This Amendment shall constitute a Credit Document.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
| BALLY TOTAL FITNESS HOLDING | |
| CORPORATION |
| By: |
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| Name: Xxxx X. Xxxxxxx | |
| Title: Senior V.P., CFO | |
| JPMORGAN CHASE BANK, N.A., individually | |
| and as Agent |
| By: |
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| Name: | |
| Title: |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
| BALLY TOTAL FITNESS HOLDING | |
| CORPORATION |
| By: |
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| Name: | |
| Title: | |
| JPMORGAN CHASE BANK, N.A., individually | |
| and as Agent |
| By: |
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| Name: Xxxxx Xxxxxxx | |
| Title: Managing Director |
| INC. | |
| BALLY TOTAL FITNESS OF RHODE ISLAND, INC. | |
| RHODE ISLAND HOLDING COMPANY | |
| BALLY TOTAL FITNESS OF THE MIDWEST, INC. | |
| BALLY TOTAL FITNESS OF MINNESOTA, INC. | |
| TIDELANDS HOLIDAY HEALTH CLUBS, INC. | |
| U.S. HEALTH, INC. | |
| 00XX XXXXXX GYM LLC | |
| 708 GYM LLC | |
| ACE, LLC | |
| BTF/CFI, INC. | |
| CRUNCH L.A. LLC | |
| CRUNCH WORLD LLC | |
| FLAMBE LLC | |
| MISSION IMPOSSIBLE, LLC | |
| SOHO HO LLC | |
| WEST VILLAGE GYM AT THE ARCHIVES LLC |
| By: |
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| Name: Xxxx X. Xxxxxxx | |
| Title: Senior V.P., CFO | |
| for each of the Guarantors listed above |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| XXXXX FARGO FOOTHILL, LLC |
| By: |
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| Name: Xxxx Xxxxxxx | |
| Title: Vice President |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| The Foothill Group, Inc. |
| By: |
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| Name: Xxxxxxx X. Xxxxxxxx | |
| Title: SVP |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
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| Citigroup Financial Products Inc. |
| By: |
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| Name: XXXXXXX X. XXXXXXX | |
| Title: Managing Director |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| GENERAL ELECTRIC CAPITAL | |
| CORPORATION, as Administrator for, | |
| XXXXXXX CLO HOLDING LLC |
| By: |
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| Name: Xxxxx X. Xxxxxxx | |
| Title: Duly Authorized Signatory |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| Boldwater CBNA Loan Funding LLC, | |
| for itself or an agent for | |
| Boldwater CFPI Loan Funding LLC |
| By: |
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| Name: XXXXX X. XXXX | |
| Title: Attorney-in-fact |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
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| ADAR Investment Fund LTD | |
| by ADAR Investment Management LLC, | |
| Its Investment Manager |
| By: |
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| Name: Xxxxx Xxxxx | |
| Title: Chief Operating Officer |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, 2006 | |
| to the Amended and Restated Credit Agreement | |
| CELERITY CLO LIMITED | |
| By: TCW Advisors, Inc., | |
| as Agent |
| By: |
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| Name: Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Name: Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, 2006 | |
| to the Amended and Restated Credit Agreement |
| DAR | IEN LOAN FUNDING COMPANY |
| By: TCW Advisors as its Interim | |
| Interim Collateral Manager |
| By: |
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| Name: Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Name: Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, 2006 | |
| to the Amended and Restated Credit Agreement |
| F | IRST 2004-I CLO, LTD. |
| By: TCW Advisors as its Interim | |
| Interim Collateral Manager |
| By: |
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| Name: Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Name: Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
| F | IRST 2004-II CLO, LTD. |
| By: TCW Advisors, Inc. | |
| Its Collateral Manager |
| By: |
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| Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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LOAN FUNDING I LLC, a wholly owned subsidiary of Citibank, N.A. By: TCW Advisors, Inc., as Portfolio Manager of Loan Funding I LLC |
| By: |
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| Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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TCW SELECT LOAN FUND, LIMITED By: TCW Advisors, Inc. as its Collateral Manager |
| By: |
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| Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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TCW Senior Secured Loan Fund, LP By: TCW Advisors, Inc., as its Investment Advisor |
| By: |
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| Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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VELOCITY CLO, LTD TCW Advisors, Inc., its Collateral Manager |
| By: |
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| Xxxxxxxx X. Xxxxxx |
| Title: | Managing Director |
| By: |
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| Xxxxx Xxxxxxxxxx |
| Title: | Vice President |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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Q FUNDING III, L.P. [LENDER] By: Prufrock Onshore, L.P., its General Partner |
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| By: J. Alfred Onshore, LLC, its General Partner |
| By: |
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| Name: Xxxxxx XxXxxxxxx |
| Title: | Vice President |
| Black Diamond Offshore, Ltd. | |
| By: Xxxxxxx Capital L.P., its investment advisor | |
| By: Asgard Investment Corp., its general partner |
| By: |
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| Name: Xxxxx X. Xxxxxxx | |
| Title: President |
| Double Black Diamond Offshore LDC | |
| By: Xxxxxxx Capital, L.P., its investment advisor | |
| By: Asgard Investment Corp., its general partner |
| By: |
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| Name: Xxxxx X. Xxxxxxx | |
| Title: President |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, | |
| 2006 to the Amended and Restated Credit | |
| Agreement | |
| HARBOUR TOWN FUNDING LLC |
| By: |
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| Name: M. Xxxxxxxx Xxxxxxx | |
| Title: Assistant Vice President |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, | |
| 2006 to the Amended and Restated Credit | |
| Agreement | |
| LONG LANE MASTER TRUST IV |
| By: |
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| Name: M. Xxxxxxxx Xxxxxxx | |
| Title: Authorized Agent |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, | |
| 2006 to the Amended and Restated Credit | |
| Agreement | |
| RED FOX FUNDING LLC |
| By: |
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| Name: M. Xxxxxxxx Xxxxxxx | |
| Title: Assistant Vice President |
| Bally Total Fitness Holding Corporation Third | |
| Amendment and Waiver dated as of March 24, | |
| 2006 to the Amended and Restated Credit | |
| Agreement | |
| SEMINOLE FUNDING LLC |
| By: |
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| Name: M. Xxxxxxxx Xxxxxxx | |
| Title: Assistant Vice President |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| WB Loan Funding 2, LLC |
| By: |
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| Name: Xxxxx X. Xxxxx |
| Title: | Associate |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
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| Deutsche Bank Trust Company Americas |
| By: |
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| Name: Xxxxxx Xxxxx |
| Title: | Director |
| By: |
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| Name: Xxxxxx X. Xxxxxx |
| Title: | Managing Director |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Credit Genesis CLO 2005-1 | |
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| [LENDER] |
| By: |
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| Name: TK DECCAN |
| Title: | Managing Principal |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 in the Amended and Restated Credit Agreement | |
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| TRS LEDA LLC |
| By: |
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| Name: Xxxxx X. Xxxxxx |
| Title: | Vice President |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| GENERAL ELECTRIC CAPITAL CORPORATION |
| By: |
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| Name: Xxxxxx X. Xxxxx |
| Title: | Duly Authorized signatory |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, LLC as Collateral Manager for XXXXX POINT CLO, LTD., as Term Lender |
| By: |
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| Name: Xxxxxxxx X. Xxxxx |
| Title: | Authorized Signatory |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, LLC as Collateral Manager for Race Point II CLO, Limited, as Term Lender |
| By: |
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| Name: | |
| Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, LLC as Collateral Manager for Castle Hill I - INGOTS, Ltd., as Term Lender |
| By: | |
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| Name: | |
| Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, LLC as Collateral Manager for Loan Funding XI LLC, as Term Lender |
| By: |
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| Name: | |
| Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, Inc., as Collateral Manager for Xxxxx Point CBO 1999-1 LTD., as Term Lender |
| By: |
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| Name: | |
| Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, LLC as Collateral Manager for Race Point CLO, Limited, as Term Lender |
| By: |
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| Name: | |
| Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty High Yield Partners, III, L.P. |
| By: |
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| Name: | |
| Title: |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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| Sankaty Advisors, LLC as Collateral Manager for Castle Hill II — INGOTS, Ltd., as Term Lender |
| By: |
_____________________________________ Name: Title: |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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Sankaty Advisors, LLC as Collateral Manager for Prospect Funding I, LLC as Term Lender |
| By: |
_____________________________________ Name: Title: |
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Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement |
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Sankaty Advisors, LLC as Collateral Manager for Xxxxx Point II CBO 2000-1 Ltd., as Term Lender |
| By: |
_____________________________________ Name: Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Sankaty Advisors, LLC as Collateral Manager for Race Point III, CLO Ltd. as Term Lender |
| By: |
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| Name: | |
| Title: |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| Canyon Capital CDO 2002-1 Ltd. | |
| [LENDER] |
| By: |
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| Name: Xxxxxxxx X. Xxxxx | |
| Title: Managing Director |
| By: | Canyon Capital Advisors LLC, |
| a Delaware limited liability company, | |
| its Collateral Manager |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement | |
| FIELD POINT I, LTD. |
| By: |
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| Name: Xxxxxxx Xxxxxxx | |
| Title: Authorized Signatory |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| FIELD POINT II, LTD. |
| By: |
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| Name: Xxxxxxx Xxxxxxx | |
| Title: Authorized Signatory |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
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| LaSalle Bank N.A. |
| By: |
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| Name: Xxxxx Xxxxxxx | |
| Title: Senior Vice President |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
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| ANCHORAGE CROSSOVER CREDIT | |
| OFFSHORE MASTER FUND, LTD. |
| By: | ANCHORAGE ADVISORS, LLC., |
| Its Advisor |
| By: |
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| Name: Xxxxxxx Xxxxxxxxx | |
| Title: Executive Vice President |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| SBZ PARTNERS, L.P. | |
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| [LENDER] |
| By: |
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| Name: Xxxxxx Xxxxx |
| Title: | Co-manager, SBZ copy illegible, GP, LLC, Its General Partner |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| Sunrise Partners Limited Partnership | |
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| [LENDER] |
| By: |
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| Name: Xxxxxxx X. Xxxxxx | |
| Title: Vice President |
| Bally Total Fitness Holding Corporation Third Amendment and Waiver dated as of March 24, 2006 to the Amended and Restated Credit Agreement. | |
| The Alphagen Credit Fund LP | |
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| [LENDER] |
| By: |
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| Name: Varkks Xxxxxx |
| Title: |
Signing in his capacity as Fund Manager, [Illegible] Global Investments |
EXHIBIT A
Amendments and Waivers to Senior
Unsecured Notes Indenture and
Subordinated Notes Indenture
Unsecured Notes Indenture and
Subordinated Notes Indenture
Senior Unsecured Notes Indenture:
WAIVERS
Waiver of any Default or Event of Default (as such terms are defined in the Senior Unsecured
Notes Indenture) (A) arising from a failure to comply with the covenants set forth in
Section 7.4 and 10.17 of the Senior Unsecured Notes Indenture (the “Reporting
Covenants”), which require the Borrower to file with the SEC and to furnish to the
Trustee and holders under the Senior Unsecured Notes Indenture, the reports required to
be filed pursuant to the Securities Exchange Act of 1934 and (B) arising from the
Borrower’s failure to provide notice to the Trustee under the Senior Unsecured Notes
Indenture of any Reporting Covenant Default under Section 10.19(b) of the Senior
Unsecured Notes Indenture.
Waiver extends through July 10, 2006 with respect to the Borrower’s 2005 10-K Report and
first quarter 2006 10-Q Report and through September 11, 2006 with respect to the
Borrower’s second quarter 2006 10-Q Report, with an option to extend to October 11,
2006.
CONSIDERATION
A
fee, at the election of the holder under the Senior Unsecured Notes Indenture
of (i) $10.00 or (ii) 4.4444 shares of the Borrower’s common stock, par value $0.01 per
share (“Common Stock”), in each case per $1,000 in principal amount of Senior Unsecured
Notes.
In addition, if the Borrower elects the option to extend the delivery of its
second quarter 2006 10-Q Report by 30 additional days to October 11, 2006, a fee of (i)
$3.33 or (ii) 1.4815 shares of Common Stock per $1,000 in principal amount of Senior
Unsecured Notes.
Subordinated Notes Indenture:
WAIVERS
Waiver of any Default or Event of Default (as such terms are defined in the Subordinated
Notes Indenture) (A) arising from a failure to comply with the covenants set forth in
Section 7.4 and 10.17 of the Subordinated Notes Indenture (the “Reporting Covenants”),
which require the Borrower to file with the SEC and to furnish to the Trustee and
holders under the Subordinated Notes Indenture, the reports required to be filed
pursuant to the Securities Exchange Act of 1934 and (B) arising from the Borrower’s
failure to provide notice to the Trustee under the Subordinated Notes
Indenture of any Reporting Covenant Default under Section 10.18(b) of the Subordinated
Notes Indenture.
Waiver extends through July 10, 2006 with respect to the Borrower’s 2005 10-K Report and
first quarter 2006 10-Q Report and through September 11, 2006 with respect to the
Borrower’s second quarter 2006 10-Q Report, with an option to extend to October 11,
2006.
CONSIDERATION
A fee, at the election of the holder under the Subordinated Notes Indenture of
(i) $10.00 or (ii) 4.4444 shares of the Borrower’s common stock, par value $0.01 per
share (“Common Stock”), in each case per $1,000 in principal amount of Subordinated
Notes.
In addition, if the Borrower elects the option to extend the delivery of its
second quarter 2006 10-Q Report by 30 additional days to October 11, 2006, a fee of (i)
$3.33 or (ii) 1.4815 shares of Common Stock per $1,000 in principal amount of
Subordinated Notes.
