CONSENT
EXHIBIT 10.1
CONSENT
CONSENT, dated as of October 17, 2005 (this “Consent”), under the CREDIT AGREEMENT,
dated as of November 18, 1997, as amended and restated as of October 14, 2004, as amended and
waived by the First Amendment and Waiver dated as of March 31, 2005 and as further amended by the
Second Amendment and Consent dated as of August 24, 2005 (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:
1. The Borrower wishes to implement one or more Rights Plan Transactions (as defined in
Schedule I).
2. Pursuant to Section 7.01 of the Credit Agreement, the consent of the Majority Lenders is
required in order for the Borrower to implement the Rights Plan Transactions.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Consent. The Lenders consent to the adoption of one or more Rights Plans (as
defined in Schedule I) and implementation of one or more Rights Plan Transactions,
provided, that the aggregate payments made by the Borrower in respect of any Rights (as
defined in Schedule I) issued pursuant to, and of any Capital Stock in connection with, any Rights
Plan Transactions shall not exceed $100,000 (excluding in each case the value of Capital Stock of
the Borrower issued pursuant to any Rights Plan). This Consent is not intended to and shall not be
construed as granting the Borrower permission to purchase or redeem any Capital Stock (other than
the Rights and subject to the limit set forth in the proviso to the preceding sentence) in
connection with Rights Plan Transactions.
2. Conditions to Effectiveness of this Consent. This Consent 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 Consent 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 invoiced fees and reasonable expenses
of the Agent and the Lenders that are earned, due and payable on or prior to the Effective
Date in connection with this Consent.
2
3. Consent Fee. The Borrower agrees to pay to the Agent for the account of each
Lender which executes and delivers this Consent by 12:00 pm EST on or prior to October 19, 2005
(each, an “Approving Lender”) a consent fee equal to .05% 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.
4. Representations and Warranties. The Borrower represents and warrants to each
Lender that as of the Effective Date after giving effect to this Consent: (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.
5. Counterparts. This Consent may be executed by one or more of the parties to this
Consent on any number of separate counterparts (including by facsimile or electronic transmission),
and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. The execution and delivery of this Consent 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.
6. Continuing Effect; No Other Amendments. This Consent is to be narrowly
constructed. Except to the extent specific transactions are specifically consented to hereunder,
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 Consent shall constitute a Credit Document.
7. GOVERNING LAW. THIS CONSENT 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.
[Rest of page intentionally left blank]
3
IN WITNESS WHEREOF, the parties hereto have caused this Consent 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:
|
/s/ Xxxx X. Xxxxxxx | |||||
Name: Xxxx X. Xxxxxxx | ||||||
Title: Senior Vice President and Chief Financial Officer | ||||||
JPMORGAN CHASE BANK, N.A., individually and as Agent | ||||||
By:
|
/s/ Xxxxx Xxxxxxx | |||||
Name: Xxxxx Xxxxxxx | ||||||
Title: Managing Director | ||||||
4
Bally Total Fitness Holding Corporation Consent dated as of October 17, 2005 under the Amended and Restated Credit Agreement | ||||||
LASALLE BANK NATIONAL ASSOCIATION | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxx X. Xxxxxx | ||||||
Title: First Vice President | ||||||
Sankaty Advisors, LLC as Collateral Manager for XXXXX POINT CLO, LTD. | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
Sankaty Advisors, Inc., as Collateral Manager for XXXXX POINT CBO 1999-1 LTD. | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
Sankaty Advisors, LLC, as Collateral Manager for XXXXX POINT II CBO 2000-1 LTD. | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
Sankaty Advisors, LLC as Collateral Manager for CASTLE HILL I — INGOTS, LTD. | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
Sankaty Advisors, LLC as Collateral Manager for CASTLE HILL II — INGOTS, LTD. | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
5
HARBOUR TOWN FUNDING LLC | ||||||
By: |
/s/ M. Xxxxxxxx Xxxxxxx | |||||
Name: M. Xxxxxxxx Xxxxxxx | ||||||
Title: Assistant Vice President | ||||||
Sankaty Advisors, LLC as Collateral Manager for LOAN FUNDING XI LLC | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
LONG LANE MASTER TRUST IV | ||||||
By:
|
/s/ M. Xxxxxxxx Xxxxxxx | |||||
Name: M. Xxxxxxxx Xxxxxxx | ||||||
Title: Assistant Vice President | ||||||
Sankaty Advisors, LLC as Collateral Manager for RACE POINT CLO, LIMITED |
||||||
By: |
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
Sankaty Advisors, LLC as Collateral Manager for RACE POINT II CLO, LIMITED |
||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
Sankaty Advisors, LLC as Collateral Manager for PROSPECT FUNDING I, LLC |
||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
6
SANKATY HIGH YIELD PARTNERS III, L.P. | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxx III | |||||
Name: Xxxxx X. Xxxxxxx III | ||||||
Title: Managing Director | ||||||
BLACK DIAMOND OFFSHORE, LTD. | ||||||
By:
|
Xxxxxxx Capital, L.P., its investment advisor | |||||
By:
|
Asgard Investment Corp., its general partner | |||||
By:
|
/s/ Xxxxx X. Xxxxxxx | |||||
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:
|
/s/ Xxxxx X. Xxxxxxx | |||||
Name: Xxxxx X. Xxxxxxx | ||||||
Title: President | ||||||
CANYON CAPITAL CDO 2002-1, LTD. | ||||||
By:
|
/s/ X. Xxxxxxxxx X. Xxxxxxx | |||||
Name: X. Xxxxxxxxx X. Xxxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
Canyon Capital Advisors LLC, a Delaware limited liability company, its Collateral Manager |
|||||
CANYON CAPITAL CLO 2004-1, LTD. | ||||||
By:
|
/s/ X. Xxxxxxxxx X. Xxxxxxx | |||||
Name: X. Xxxxxxxxx X. Xxxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
Canyon Capital Advisors LLC, | |||||
a Delaware limited liability company its Collateral Manager |
||||||
DEUTSCHE BANK TRUST COMPANY AMERICAS | ||||||
By:
|
/s/ Xxxxx XxXxxxx | |||||
Name: Xxxxx XxXxxxx | ||||||
Title: Director |
7
By:
|
/s/ Xxxx Xxxxx | |||||
Name: Xxxx Xxxxx | ||||||
Title: Vice President | ||||||
DURHAM ASSET MANAGEMENT L.L.C., on Behalf of CREDIT GENESIS CLO 2005-1 LTD. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxxxxx | ||||||
Title: Principal | ||||||
HEALTH AND FITNESS TRUST | ||||||
By:
|
Wilmington Trust Company not in its individual capacity, but solely as Owner Trustee |
|||||
By:
|
/s/ Xxxxxx X. Xxxx | |||||
Name: Xxxxxx X. Xxxx | ||||||
Title: Assistant Vice President | ||||||
General Electric Capital Corporation, as Administrator for, XXXXXXX CLO HOLDING LLC |
||||||
By:
|
/s/ Xxxxx X. Xxxxxxx | |||||
Name: Xxxxx X. Xxxxxxx | ||||||
Title: Duly Authorized Signatory | ||||||
GENERAL ELECTRIC CAPITAL CORPORATION | ||||||
By:
|
/s/ Xxxxxx Xxxxx | |||||
Name: Xxxxxx Xxxxx | ||||||
Title: Duly Authorized Signer | ||||||
HBK MASTER FUND L.P. | ||||||
By:
|
HBK Investment L.P., Investment Advisor | |||||
By:
|
/s/ Xxxxx X’Xxxx | |||||
Name: Xxxxx X’Xxxx | ||||||
Title: Authorized Signatory |
8
TRS LEDA LLC | ||||||
By:
|
/s/ Xxxxxxx X’Xxxxxx | |||||
Name: Xxxxxxx X’Xxxxxx | ||||||
Title: Vice President | ||||||
Q FUNDING III, L.P. | ||||||
By:
|
Prufrock Onshore, L.P., its general partner | |||||
By:
|
J. Alfred Onshore, LLC, its general partner | |||||
By:
|
Xxxxxx XxXxxxxxx | |||||
Name: Xxxxxx XxXxxxxxx | ||||||
Title: Vice President | ||||||
C-SQUARED CDO LTD. | ||||||
By:
|
TCW Advisors, Inc., as its Portfolio Manager | |||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
By:
|
/s/ Xxxxx Xxxxxxxxxx | |||||
Name: Xxxxx Xxxxxxxxxx | ||||||
Title: Vice President | ||||||
CELERITY CLO LIMITED | ||||||
By:
|
TCW Advisors, Inc., as Agent | |||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
FIRST 2004-I CLO, LTD. | ||||||
By:
|
TCW Advisors, Inc., as its Collateral Manager | |||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President |
9
FIRST 2004-II CLO, LTD. | ||||||
By:
|
TCW Advisors, Inc., as its Collateral Manager | |||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
JEFFERSON-PILOT LIFE INSURANCE COMPANY | ||||||
By:
|
TCW Advisors, Inc., as its Investment Advisor | |||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
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:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
By:
|
/s/ Xxxxx Xxxxxxxxxx | |||||
Name: Xxxxx Xxxxxxxxxx | ||||||
Title: Vice President | ||||||
TCW SELECT LOAN FUND, LIMITED | ||||||
By:
|
TCW Advisors, Inc., as its Collateral Manager | |||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
10
TCW SENIOR SECURED FLOATING RATE LOAN FUND, L.P. | ||||||
By:
|
TCW Advisors, Inc., as its Investment Advisor | |||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
VELOCITY CLO, LTD. | ||||||
By:
|
TCW Advisors, Inc., its Collateral Manager | |||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxxx X. Xxxxxx | ||||||
Title: Managing Director | ||||||
By:
|
/s/ Xxxxxxx Xxx | |||||
Name: Xxxxxxx Xxx | ||||||
Title: Vice President | ||||||
U.S. BANK NATIONAL ASSOCIATION | ||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | |||||
Name: Xxxxxx X. Xxxxxx | ||||||
Title: Vice President | ||||||
WB LOAN FUNDING 2, LLC | ||||||
By:
|
/s/ Xxxxx X. Xxxxx | |||||
Name: Xxxxx X. Xxxxx | ||||||
Title: Associate | ||||||
XXXXX FARGO FOOTHILL, LLC | ||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | |||||
Name: Xxxxx X. Xxxxxxxx | ||||||
Title: Vice President | ||||||
THE FOOTHILL GROUP, INC. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxxx | ||||||
Title: Senior Vice President |
11
THE CONSENT IS ACKNOWLEDGED AND AGREED: | ||||
BALLY’S FITNESS AND RACQUET CLUBS, INC. | ||||
BALLY FITNESS FRANCHISING, INC. | ||||
BALLY FRANCHISE RSC, INC. | ||||
BALLY FRANCHISING HOLDINGS, INC. | ||||
BALLY ESTATE II, LLC | ||||
REAL ESTATE III, LLC | ||||
REAL ESTATE IV, LLC | ||||
BALLY REFS WEST HARTFORD, LLC | ||||
BALLY TOTAL FITNESS CORPORATION | ||||
BALLY TOTAL FITNESS HOLDING CORPORATION | ||||
BALLY TOTAL FITNESS INTERNATIONAL, INC. | ||||
BALLY TOTAL FITNESS OF MISSOURI, INC. | ||||
BALLY TOTAL FITNESS OF TOLEDO, INC. | ||||
BFIT REHAB OF WEST PALM BEACH, INC. | ||||
BALLY TOTAL FITNESS OF CONNECTICUT COAST, INC. | ||||
BALLY TOTAL FITNESS OF CONNECTICUT VALLEY, INC. | ||||
GREATER PHILLY XX. 0 XXXXXXX XXXXXXX | ||||
XXXXXXX XXXXXX XX. 0 HOLDING COMPANY | ||||
HEALTH & TENNIS CORPORATION OF NEW YORK | ||||
HOLIDAY HEALTH & FITNESS CENTERS OF NEW YORK, INC. | ||||
BALLY TOTAL FITNESS OF COLORADO, INC. | ||||
BALLY TOTAL FITNESS OF THE SOUTHEAST, INC. | ||||
HOLIDAY HEALTH CLUBS OF THE EAST COAST, INC. | ||||
HOLIDAY/SOUTHEAST HOLDING CORP. | ||||
BALLY TOTAL FITNESS OF CALIFORNIA, INC. | ||||
BALLY TOTAL FITNESS OF THE MID-ATLANTIC, INC. | ||||
BALLY TOTAL FITNESS OF GREATER NEW YORK, INC. | ||||
XXXX XXXXXXX HOLDING CORP. | ||||
BALLY SPORTS CLUB, INC. | ||||
NEW FITNESS HOLDING CO., INC. | ||||
NYCON HOLDING CO., INC. | ||||
BALLY TOTAL FITNESS OF PHILADELPHIA, INC. | ||||
PROVIDENCE FITNESS CENTERS, 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. |
00
00XX XXXXXX GYM LLC | ||||
708 GYM LLC | ||||
ACE, LLC | ||||
CRUNCH CFI, LLC | ||||
CRUNCH FITNESS INTERNATIONAL, INC. | ||||
CRUNCH L.A. LLC | ||||
CRUNCH WORLD LLC | ||||
FLAMBE LLC | ||||
MISSION IMPOSSIBLE, LLC | ||||
SOHO HO LLC | ||||
WEST VILLAGE GYM AT THE ARCHIVES LLC | ||||
BALLY TOTAL FITNESS FRANCHISING, INC. |
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Senior Vice President and Chief Financial Officer |
Schedule I
“Rights Plan Transaction”
“Rights Plan Transaction” means the (i) distribution to then existing stockholders of the
Borrower and the issuance from time to time thereafter in connection with the issuance or exchange
of any shares of common stock of the Borrower of stock purchase rights (“Rights”) pursuant
to the terms of one or more Stockholder Rights Plans (each a “Rights Plan”), which will
entitle the holder thereof, in the circumstances set forth in a Rights Plan, to purchase from the
Borrower one one-thousandth of a share of a series of preferred stock or shares of common stock of
the Borrower upon payment of the exercise price and other terms set forth in the Rights Plan and
(ii) the issuance of shares of preferred or common stock of the Borrower upon exercise of such
Rights or the exchange of shares of common stock of the Borrower for such Rights in lieu of
purchase of such shares as provided in a Rights Plan.