exv10w1



 






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]










 






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     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/ Carl J. Landeck
	

	 	 
	

	 	Name: Carl J. Landeck
	

	 	Title: Senior Vice President and Chief Financial Officer
	 
	 	 
	 
	
	JPMORGAN CHASE BANK, N.A., individually and as Agent
	 
	 
	 	By:

	/s/ Barry Bergman
	

	 	 
	

	 	Name: Barry Bergman
	

	 	Title: Managing Director
	 
	 	 









 






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	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/ Patrick R. Keller
	

	 	 
	

	 	Name: Patrick R. Keller
	

	 	Title: First Vice President
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral Manager for AVERY POINT
CLO, LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, Inc., as Collateral Manager for BRANT POINT
CBO 1999-1 LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC, as Collateral Manager for BRANT POINT
II CBO 2000-1 LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral Manager for
CASTLE HILL I — INGOTS, LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral Manager for CASTLE HILL
II — INGOTS, LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 










 




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	HARBOUR TOWN FUNDING LLC
	 
	 	 
	 
	 	By:
	/s/ M. Cristina Higgins
	

	 	 
	

	 	Name: M. Cristina Higgins
	

	 	Title: Assistant Vice President
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral
Manager for LOAN FUNDING
XI LLC
	 
	 	 
	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	LONG LANE MASTER TRUST IV
	 
	 	 
	 
	 	By:

	/s/ M. Cristina Higgins
	

	 	 
	

	 	Name: M. Cristina Higgins
	

	 	Title: Assistant Vice President
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral Manager for RACE POINT

CLO, LIMITED
	 
	 	 
	 
	 	By:
	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral Manager for RACE POINT II

CLO, LIMITED
	 
	 	 
	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	Sankaty Advisors, LLC as Collateral Manager for PROSPECT

FUNDING I, LLC
	 
	 	 
	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 












 





6




	 	 	 	 	 	 	 
	

	SANKATY HIGH YIELD PARTNERS III, L.P.
	 
	 
	 	By:

	/s/ James F. Kellogg III
	

	 	 
	

	 	Name: James F. Kellogg III
	

	 	Title: Managing Director
	 
	 	 
	 
	

	BLACK DIAMOND OFFSHORE, LTD.
	 	By:

	Carlson Capital, L.P., its investment advisor
	 	By:

	Asgard Investment Corp., its general partner
	 
	 
	 	By:

	/s/ Clint D. Carlson
	

	 	 
	

	 	Name: Clint D. Carlson
	

	 	Title: President
	 
	 	 
	 
	

	DOUBLE BLACK DIAMOND OFFSHORE LDC
	 	By:

	Carlson Capital, L.P., its investment advisor
	 	By:

	Asgard Investment Corp., its general partner
	 
	 
	 	By:

	/s/ Clint D. Carlson
	

	 	 
	

	 	Name: Clint D. Carlson
	

	 	Title: President
	 
	 	 
	 
	 	 
	

	CANYON CAPITAL CDO 2002-1, LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ R. Christian B. Evensen
	

	 	 
	

	 	Name: R. Christian B. Evensen
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	 	By:

	Canyon Capital Advisors LLC,

a Delaware limited liability company,

its Collateral Manager
	 
	 	 
	 
	 	 
	

	CANYON CAPITAL CLO 2004-1, LTD.
	 
	 
	 	By:

	/s/ R. Christian B. Evensen
	

	 	 
	

	 	Name: R. Christian B. Evensen
	

	 	Title: Managing Director
	 
	 	By:

	Canyon Capital Advisors LLC,
	

	 	 
	

	 	a Delaware limited liability company

its Collateral Manager
	 
	 	 
	 
	 	 
	

	DEUTSCHE BANK TRUST COMPANY AMERICAS
	 
	 
	 	By:

	/s/ Susan LeFevre
	

	 	 
	

	 	Name: Susan LeFevre
	

	 	Title: Director









 







7


	 	 	 	 	 	 	 
	 	By:

	/s/ Lana Gifas
	

	 	 
	

	 	Name: Lana Gifas
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	DURHAM ASSET MANAGEMENT L.L.C., on Behalf of CREDIT GENESIS
CLO 2005-1 LTD.
	 
	 	 
	 
	 	 
	 	By:

	/s/ Jeffrey A. Rosenkranz
	

	 	 
	

	 	Name: Jeffrey A. Rosenkranz
	

	 	Title: Principal
	 
	 	 
	 
	 	 
	

	HEALTH AND FITNESS TRUST
	 	By:

	Wilmington Trust Company not in its individual capacity,

but solely as Owner Trustee
	 
	 	 
	 
	 	 
	 	By:

	/s/ Joseph B. Feil
	

	 	 
	

	 	Name: Joseph B. Feil
	

	 	Title: Assistant Vice President
	 
	 	 
	 
	 	 
	

	General Electric Capital Corporation, as Administrator for,

MERRITT CLO HOLDING LLC
	 
	 	 
	 
	 	 
	 	By:

	/s/ Brian P. Schwinn
	

	 	 
	

	 	Name: Brian P. Schwinn
	

	 	Title: Duly Authorized Signatory
	 
	 	 
	 
	 	 
	

	GENERAL ELECTRIC CAPITAL CORPORATION
	 
	 	 
	 
	 	 
	 	By:

	/s/ Dwayne Coker
	

	 	 
	

	 	Name: Dwayne Coker
	

	 	Title: Duly Authorized Signer
	 
	 	 
	 
	 	 
	

	HBK MASTER FUND L.P.
	 	By:

	HBK Investment L.P., Investment Advisor
	 
	 	 
	 
	 	 
	 	By:

	/s/ Kevin O’Neal
	

	 	 
		
	Name: Kevin O’Neal	 
	

	 	Title: Authorized Signatory











 






8


	 	 	 	 	 	 	 
	

	TRS LEDA LLC
	 
	 	 
	 
	 	 
	 	By:

	/s/ Deborah O’Keeffe
	

	 	 
	

	 	Name: Deborah O’Keeffe
	

	 	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:

	Robert McCormick
	

	 	 
	

	 	Name: Robert McCormick
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	C-SQUARED CDO LTD.
	 	By:

	TCW Advisors, Inc., as its Portfolio Manager
	 
	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 
	 	By:

	/s/ Vikas Mavinkurve
	

	 	 
	

	 	Name: Vikas Mavinkurve
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	CELERITY CLO LIMITED
	 	By:

	TCW Advisors, Inc., as Agent
	 
	 	 
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	FIRST 2004-I CLO, LTD.
	 	By:

	TCW Advisors, Inc., as its Collateral Manager
	 
	 	 
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President









 






9


	 	 	 	 	 	 	 
	

	FIRST 2004-II CLO, LTD.
	 	By:

	TCW Advisors, Inc., as its Collateral Manager
	 
	 	 
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	JEFFERSON-PILOT LIFE INSURANCE COMPANY
	 	By:

	TCW Advisors, Inc., as its Investment Advisor
	 
	 	 
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	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/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 	 
	 	By:

	/s/ Vikas Mavinkurve
	

	 	 
	

	 	Name: Vikas Mavinkurve
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	TCW SELECT LOAN FUND, LIMITED
	 	By:

	TCW Advisors, Inc., as its Collateral Manager
	 
	 	 
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 










 





10


	 	 	 	 	 	 	 
	

	TCW SENIOR SECURED FLOATING RATE LOAN FUND, L.P.
	 	By:

	TCW Advisors, Inc., as its Investment Advisor
	 
	 	 
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 
	 
	 	 
	

	VELOCITY CLO, LTD.
	 	By:

	TCW Advisors, Inc., its Collateral Manager
	 
	 	 
	 
	 	 
	 	By:

	/s/ Jonathan R. Insull
	

	 	 
	

	 	Name: Jonathan R. Insull
	

	 	Title: Managing Director
	 
	 	 
	 	By:

	/s/ Stephen Suo
	

	 	 
	

	 	Name: Stephen Suo
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 
	 
	 	 
	 	By:

	/s/ Joseph L. Svehla
	

	 	 
	

	 	Name: Joseph L. Svehla
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	WB LOAN FUNDING 2, LLC
	 
	 	 
	 
	 	 
	 	By:

	/s/ Diana M. Himes
	

	 	 
	

	 	Name: Diana M. Himes
	

	 	Title: Associate
	 
	 	 
	 
	 	 
	

	WELLS FARGO FOOTHILL, LLC
	 
	 	 
	 
	 	 
	 	By:

	/s/ Maged G. Ghebrial
	

	 	 
	

	 	Name: Maged G. Ghebrial
	

	 	Title: Vice President
	 
	 	 
	 
	 	 
	

	THE FOOTHILL GROUP, INC.
	 
	 	 
	 
	 	 
	 	By:

	/s/ Michael R. Bohannon
	

	 	 
	

	 	Name: Michael R. Bohannon
	

	 	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 NO. 1 HOLDING COMPANY
	

	 	 	 	GREATER PHILLY NO. 2 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.
	

	 	 	 	JACK LALANNE 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.










 





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	 	 	 	59TH STREET 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/ Carl J. Landeck
 	 
	 	 	Name:  	Carl J. Landeck 	 
	 	 	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.