1
Exhibit 4.4
================================================================================
BALLY TOTAL FITNESS HOLDING CORPORATION
AS ISSUER
-----------------------------
$200,000,000
13% SENIOR SUBORDINATED NOTES DUE 2003
------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 24, 1997
amending and supplementing the
Indenture dated as of January 15, 1993
------------------------------------
AMALGAMATED BANK OF CHICAGO
as Trustee
------------------------------------
================================================================================
2
THIS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of September 24, 1997, between BALLY TOTAL FITNESS HOLDING CORPORATION (f/k/a
Bally's Health & Tennis Corporation), a corporation duly organized and existing
under the laws of the State of Delaware, as issuer (the "Company") and
AMALGAMATED BANK OF CHICAGO, an Illinois banking corporation, as trustee (the
"Trustee").
WHEREAS, the Company and the Trustee are parties to an Indenture dated
as of January 15, 1993 (the "Original Indenture"), regarding the Company's 13%
Senior Subordinated Notes due 2003 (the "Securities");
WHEREAS, the Company has commenced a tender offer (the "Tender Offer")
for the Securities and, in connection therewith, has solicited consents (the
"Solicitation") from the holders of the Securities (the "Holders") to certain
amendments to the Original Indenture, as set forth in the Offer to Purchase and
Consent Solicitation Statement of the Company dated September 3, 1997; and
WHEREAS, pursuant to the Solicitation, the Holders of at least a
majority in aggregate principal amount of the outstanding Securities (excluding
for this purpose any Securities held by the Company, or any Affiliate of the
Company) have consented to the amendments effected by this Supplemental
Indenture in accordance with the provisions of the Original Indenture.
NOW THEREFORE, in consideration of the foregoing and mutual premises
and covenants contained herein and for other good and valuable consideration,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; AMENDMENTS TO ORIGINAL INDENTURE; WAIVER
SECTION 1.01 DEFINITIONS.
Capitalized terms used but not defined in this Supplemental Indenture
shall have the specified meanings therefor set forth in the Original Indenture.
SECTION 1.02 AMENDMENTS TO ORIGINAL INDENTURE.
(a) The amendments set forth in this Supplemental Indenture
shall become operative on the date that the Company notifies The Bank of New
York, in its capacity as Depositary in connection with the Tender Offer, that
the Securities tendered are accepted for purchase and payment pursuant to the
Tender Offer and shall be deemed effective as of September 24, 1997. If the
Securities so tendered are not accepted for payment by the Company for any
reason, the amendments set forth herein will not become operative.
(b) Sections 515, 703, 801, 1005, 1006, 1007, 1008, 1009,
1010, 1011, 1012, 1013, 1017, 1018 and 1020 of the Original Indenture shall be
deleted.
(c) Section 501 of the Original Indenture shall be amended by
deleting Paragraphs (c), (d) and (e) thereof and inserting "[intentionally
omitted]" in lieu thereof and by deleting the last paragraph of Section 501.
3
(d) Section 802 of the Original Indenture shall be amended and
restated so as to read in its entirety as follows:
Section 802. Successor Substituted.
Upon any consolidation or merger or any sale, assignment,
transfer, lease or conveyance or other disposition of all or
substantially all of the assets of the Company, the successor
corporation formed by such consolidation or into which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation had
been named as the Company herein. When a successor assumes all the
obligations of its predecessor under this Indenture and the Securities,
the predecessor will be released from those obligations, provided that,
in the case of a transfer by lease, the predecessor corporation shall
not be released from the payment of the principal of and interest on
the Securities and amounts due to the Trustee up to the date of such
transfer by lease under Section 606 hereof.
(e) All references in the Original Indenture and the
Securities to the sections, subsections and clauses of the Original
Indenture and the Securities deleted or amended by the foregoing
paragraphs (b) through (d) shall be void and of no further force and
effect.
(f) All defined terms used in Section 101 of the Original
Indenture that are used solely in the sections, subsections and clauses
deleted by the foregoing paragraphs (b) through (d) shall be void and
of no further force and effect.
ARTICLE II
MISCELLANEOUS
SECTION 2.01 INSTRUMENTS TO BE READ TOGETHER.
This Supplemental Indenture is an indenture supplemental to the
Original Indenture; and, as such, said Original Indenture and this Supplemental
Indenture shall henceforth be read together. To the extent that the Securities
conflict with or are inconsistent with the terms of this Supplemental Indenture,
the terms of this Supplemental Indenture shall govern.
SECTION 2.02 CONFIRMATION.
The Original Indenture as amended and supplemented by this Supplemental
Indenture is in all respects confirmed and preserved.
2
4
SECTION 2.03 HEADINGS.
The headings of the Articles and Sections of this Supplemental
Indenture have been inserted for convenience of reference only, and are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SECTION 2.04 GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SUPPLEMENTAL
INDENTURE AND THE SECURITIES.
SECTION 2.05 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts notwithstanding that all parties named herein may not be
signatories to the same counterpart, each of which so executed shall be deemed
to be an original, but all such counterparts shall together constitute but one
and the same instrument.
SECTION 2.06 EFFECTIVENESS.
The provisions of this Supplemental Indenture will become effective
according to its terms immediately upon its execution and delivery by the
Company and the Trustee.
SECTION 2.08 ACCEPTANCE BY TRUSTEE.
The Trustee accepts the amendments to the Original Indenture effected
by this Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in
the Indenture. Without limiting the generality of the foregoing, the Trustee
assumes no responsibility for the correctness of the recitals contained herein,
which shall be taken as the statements of the Company and, except as provided in
the Original Indenture, the Trustee shall not be responsible or accountable in
any manner whatsoever for or with respect to the validity or execution or
sufficiency of this Supplemental Indenture.
SECTION 2.08 TRUST INDENTURE ACT CONTROLS.
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with another provision that is required to be included in this
Supplemental Indenture by the Trust Indenture Act, the required provision shall
control.
3
5
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, as of the date first written above.
ATTEST: BALLY TOTAL FITNESS HOLDING
CORPORATION
/s/
-------------------------
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President, Human Resources
ATTEST: AMALGAMATED BANK OF CHICAGO
(TRUSTEE)
/s/ By /s/ X. Xxxxx
------------------------- ------------------------------------------
Name: X. Xxxxx
Title: Assistant Vice President
4
6
STATE OF )
) ss:
COUNTY OF )
On the 24th day of September, 1997, before me personally came Xxxxxx
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at ___________________, _____________________; that he is Senior Vice
President of Bally Total Fitness Holding Corporation, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of such corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such corporation; and that he signed his name thereto pursuant
to like authority.
/s/
------------------------------
Notary Public
(NOTARIAL SEAL)
STATE OF )
) ss:
COUNTY OF )
On the 24th day of September, 1997, before me personally came X. Xxxxx,
to me known, who, being by me duly sworn, did depose and say that he/she resides
at Xxx Xxxx Xxxxxx, Xxxxxxx, XX; that he/she is Assistant Vice President of
Amalgamated Bank of Chicago, one of the corporations described in and which
executed the above instrument; that he/she knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
corporation; and that he/she signed his/her name thereto pursuant to like
authority.
/s/
------------------------------
Notary Public
(NOTARIAL SEAL)
5
