EXHIBIT 10.2
EXECUTION VERSION
AMENDMENT NO. 1 TO LIMITED WAIVER AND FORBEARANCE
AGREEMENT
AMENDMENT NO. 1 TO LIMITED WAIVER AND
FORBEARANCE AGREEMENT, dated as of July 13, 2007 (this “
Amendment ”), by and between Bally Total Fitness
Holding Corporation, a corporation organized under the laws of
Delaware (the “ Company ”), and the Persons
listed on Exhibit A hereto (each, a “ Holder
” and collectively, the “ Holders ”).
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Limited Waiver and Forbearance
Agreement (as defined below).
WHEREAS, the Holders are the
beneficial owners of the 9 7/8% Senior Subordinated Notes due 2007
of the Company (the “ Notes ”) issued pursuant
to an Indenture, dated as of December 16, 1998 (as amended or
supplemented, the “ Indenture ”), between the
Company and U.S. Bank National Association, as trustee (the “
Trustee ”), and consequently, the Holders are the
beneficial owners of a majority in aggregate principal amount of
Notes outstanding;
WHEREAS, pursuant to a Limited Waiver
and Forbearance Agreement, dated as of May 14, 2007 (the
“ Limited Waiver and Forbearance Agreement ”),
by and between the Company and the Holders, the Holders
(i) waived certain Defaults or Events of Defaults under the
Indenture relating to the Reporting Obligations, the Sale and
Leaseback Matters and the Notice Obligations (collectively, the
“ Waived Matters ”) and (ii) agreed to
forbear, and directed the Trustee to forbear, from taking or
exercising any Enforcement Action in connection with the Waived
Matters and the Interest Payment Default;
WHEREAS, pursuant to
Sections 5.13 and 10.19 of the Indenture, the Company desires
to seek waivers from holders of the Notes from the Effective Date
to, but not including, the Forbearance and Waiver Expiration Date
of any Default or Event of Default (as such terms are defined in
the Indenture) arising from any declaration that all unpaid
principal of, premium, if any, and accrued interest on the
indebtedness outstanding under the Senior Notes Indenture is due
and payable; and
WHEREAS, the Company desires to seek
an extension of the Forbearance and Waiver Expiration Date from
holders of the Notes to July 31, 2007.
NOW, THEREFORE, in consideration of
the promises and the representations, warranties, covenants and
agreements herein contained, and intending to be legally bound
hereby, the Company and the Holders hereby agree as follows:
ARTICLE I.
AMENDMENTS
Section 1.1 Amendments to
Limited Waiver and Forbearance Agreement . The Limited Waiver
and Forbearance Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth
in Section 2.1 hereof, hereby amended as follows:
(a) The
second recital is deleted in its entirety and replaced with the
following:
“WHEREAS, pursuant to
Sections 5.13 and 10.19 of the Indenture, the Company desires
to seek waivers from holders of the Notes from the Effective Date
(as defined in Section 5.1 hereof) to, but not including, the
Forbearance and Waiver Expiration Date (as defined in
Section 6.1 hereof) of any Default or Event of Default (as
such terms are defined in the Indenture) arising from (i) the
failure to file timely such reports as the Company is or may be
required to file with the SEC pursuant to Sections 13(a) or 15(d)
of the Exchange Act and furnish such reports to the Trustee and
holders of the Notes in accordance with Sections 7.4 and 10.17
of the Indenture (the “ Reporting Obligations
”), (ii) any declaration that all unpaid principal of,
premium, if any, and accrued interest on the indebtedness
outstanding under the Senior Notes Indenture is due and payable
(the “ Senior Notes Acceleration Notice ”) and
(iii) the failure to provide notice to the Trustee of a
Default or Event of Default arising in connection with the
Reporting Obligations or the Senior Notes Acceleration Notice in
accordance with Section 10.18 of the Indenture (the “
Notice Obligations ” and, together with the Reporting
Obligations, the Senior Notes Accelera
