TOWN SPORTS INTERNATIONAL HOLDINGS, INC. TOWN SPORTS INTERNATIONAL, LLC FIRST AMENDMENT TO CREDIT AGREEMENT

Exhibit 10.1

TOWN SPORTS INTERNATIONAL HOLDINGS, INC.

TOWN SPORTS INTERNATIONAL, LLC

FIRST AMENDMENT

TO

CREDIT AGREEMENT

This FIRST AMENDMENT TO CREDIT AGREEMENT (this “First Amendment”) is dated as of August 22, 2012 and entered into by and among TOWN SPORTS INTERNATIONAL HOLDINGS, INC., a Delaware corporation (“Holdings”), TOWN SPORTS INTERNATIONAL, LLC, a New York limited liability company (the “Borrower”), the Subsidiary Guarantors listed on the signature pages hereto (each, a “Subsidiary Guarantor” and, collectively, the “Subsidiary Guarantors”), the financial institutions listed on the signature pages hereof and executing this First Amendment (the “Lenders”) and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and is made with reference to that certain Credit Agreement, dated as of May 11, 2011 (the “Credit Agreement”), by and among Holdings, the Borrower, the Lenders (as defined in the Credit Agreement) and the Administrative Agent. Capitalized terms used herein without definition shall have the same meanings herein as set forth in the Credit Agreement.

RECITALS

WHEREAS, Holdings, the Borrower and each Lender party hereto desire to amend the Credit Agreement to decrease the interest rate applicable to the Initial Term Loans and to make certain other changes to the Credit Agreement, in each case, as provided herein;

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

Section 1. AMENDMENTS TO THE CREDIT AGREEMENT

1.1 Amendments to Section 1: Definitions and Accounting Terms

A. Section 1.01 of the Credit Agreement is hereby amended by adding thereto the following new definitions, which definitions shall be inserted in proper alphabetical order:

“Effective Yield” shall mean, as to the Initial Term Loans or any term loans incurred by the Borrower or any of its Subsidiaries in connection with a Repricing Event, the effective yield on such Initial Term Loans or such term loans, as applicable, as reasonably determined by the Administrative Agent in consultation with the Borrower, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the life of such term loans and (y) the four years following the date of incurrence thereof) payable generally to lenders making such Initial Term Loans or term loans, as applicable, but excluding any arrangement, structuring or other similar fees payable in connection therewith that are not generally shared with the relevant lenders and, if applicable, customary consent fees for an amendment paid generally to consenting lenders.

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“First Amendment” shall mean the First Amendment to Credit Agreement, dated as of August 22, 2012, among Holdings, the Borrower, the Subsidiary Guarantors party thereto, the Lenders party thereto and the Administrative Agent.

“First Amendment Effective Date” shall have the meaning provided in the First Amendment, which date is August 22, 2012.

“Repricing Event” shall mean (i) any prepayment or repayment of Initial Term Loans with the proceeds of, or any conversion of Initial Term Loans into, any new or replacement tranche of term loans incurred by the Borrower or any of its Subsidiaries and which bear interest with an Effective Yield less than the Effective Yield applicable to the Initial Term Loans (but excluding any such term loans incurred in connection with a Change of Control) and (ii) any amendment or other modification or waiver to this Agreement (other than the First Amendment) which effectively reduces the Effective Yield applicable to the Initial Term Loans. Any determination by the Administrative Agent as contemplated by preceding clauses (i) and (ii) shall be conclusive and binding on all Lenders holding Initial Term Loans, absent manifest error.

B. Section 1.01 of the Credit Agreement is hereby further amended by deleting clause (i) of the definition of “Applicable Margin” appearing therein in its entirety and replacing it with the following text: “(i) in the case of Initial Term Loans maintained as (x) Base Rate Loans, (A) with respect to any unpaid interest that has accrued on the Initial Term Loans prior to the First Amendment Effective Date, 4.50%, and (B) with respect to any interest accruing on the Initial Term Loans on and after the First Amendment Effective Date, 3.50%, and (y) Eurodollar Loans, (A) with respect to any unpaid interest that has accrued on the Initial Term Loans prior to the First Amendment Effective Date, 5.50%, and (B) with respect to any interest accruing on the Initial Term Loans on and after the First Amendment Effective Date, 4.50%;”.

C. Section 1.01 of the Credit Agreement is hereby further amended by deleting clause (iv) of the definition of “Base Rate” appearing therein in its entirety and replacing it with the following text: “(iv) with respect to Initial Term Loans, (A) in the case of any unpaid interest that has accrued on the Initial Term Loans prior to the First Amendment Effective Date, 2.50%, and (B) in the case of any interest accruing on the Initial Term Loans on and after the First Amendment Effective Date, 2.25%, and”.

D. Section 1.01 of the Credit Agreement is hereby further amended by deleting clause (ii) of the definition of “Eurodollar Rate” appearing therein in its entirety and replacing it with the following text: “(ii) with respect to Initial Term Loans, (A) in the case of any unpaid interest that has accrued on the Initial Term Loans prior to the First Amendment Effective Date, 1.50%, and (B) in the case of any interest accruing on the Initial Term Loans on and after the First Amendment Effective Date, 1.25%, and”.

 

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1.2 Amendments to Section 4: Commitment Commission; Fees; Reductions of Commitment

A. Section 4.01 of the Credit Agreement is hereby amended by deleting clause (h) thereof in its entirety and replacing it with the following text:

“(h) At the time of the effectiveness of any Repricing Event that is consummated after August 22, 2012 and prior to August 23, 2013, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with Initial Term Loans that are either repaid, converted or subjected to a pricing reduction in connection with such Repricing Event (including each Lender that withholds its consent to such Repricing Event and is replaced as a Replaced Lender under Section 2.13), a fee in an amount equal to 1.0% of (x) in the case of a Repricing Event described in clause (i) of the definition thereof, the aggregate principal amount of all Initial Term Loans prepaid or converted in connection with such Repricing Event and (y) in the case of a Repricing Event described in clause (ii) of the definition thereof, the aggregate principal amount of all Initial Term Loans outstanding on such date that are subject to an effective pricing reduction pursuant to such Repricing Event. Such fees shall be earned, due and payable upon the date of the effectiveness of such Repricing Event.”

1.3 Amendments to Section 5: Prepayments; Payments; Taxes

A. Section 5.01(a) of the Credit Agreement is hereby amended by deleting clause (vi) thereof in its entirety and replacing it with the following text:

“(vi) any prepayment of Initial Term Loans made after August 22, 2012 and prior to August 23, 2013 in connection with a Repricing Event shall be accompanied by the payment of the fee described in Section 4.01(h).”

1.4 Amendments to Section 9: Affirmative Covenants

A. Section 9.09 of the Credit Agreement is hereby amended to replace the text “then outstanding.” appearing therein with the following text: “outstanding from time to time following the First Amendment Effective Date.”

Section 2. CONDITIONS TO EFFECTIVENESS

Section 1 of this First Amendment shall become effective only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):

A. Amendment. Holdings, the Borrower, the Subsidiary Guarantors, the Required Lenders and each Lender with outstanding Initial Term Loans (including any Replacement Lender) shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile (or other electronic) transmission) their signed counterparts to the Administrative Agent.

B. Amendment Fee. On or prior to the First Amendment Effective Date, the Borrower shall have paid to the Administrative Agent, for the ratable benefit of each Lender with outstanding Initial Term Loans (including any Replacement Lender) that has executed a counterpart to this First Amendment and delivered the same to the Administrative Agent, an amendment fee equal to 1.00% of the aggregate principal amount of the outstanding Initial Term Loans held by each such consenting Lender on the First Amendment Effective Date (such fee, the “Amendment Fee”). For the avoidance of doubt, the Amendment Fee shall not be payable unless and until the other conditions set forth in Section 2 have been met, except for the payment of fees pursuant to this Section 2B.

 

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C. Other Fees and Expenses. The Borrower shall have paid all other costs, fees, expenses and other amounts due and payable pursuant to the Credit Documents and any other fee due and payable to the Administrative Agent or any affiliate thereof as may have been separately agreed to by the Borrower and the Administrative Agent or such Affiliate in connection with this First Amendment, including the reasonable fees and expenses of White & Case LLP.

For the avoidance of doubt, to the extent that the Borrower replaces any Non-Consenting Term Loan Lender (as defined below) with a Replacement Lender in accordance with Section 2.13 of the Credit Agreement, such Non-Consenting Term Loan Lender shall receive from the Borrower, concurrently with such replacement, the payment of the applicable fee provided for in Section 4.01(h) of the Credit Agreement as in effect immediately prior to the First Amendment Effective Date. As used herein, the term “Non-Consenting Term Loan Lender” shall mean each Lender with outstanding Initial Term Loans that does not provide its consent to this First Amendment.

Section 3. CREDIT PARTY REPRESENTATIONS AND WARRANTIES

In order to induce the Lenders to enter into this First Amendment and to amend the Credit Agreement in the manner provided herein, each Credit Party represents and warrants to each Lender that the following statements are true and correct:

A. Power and Authority. Each Credit Party has the corporate, partnership or limited liability company power and authority, as the case may be, to execute, deliver and perform the terms and provisions of this First Amendment and has taken all necessary corporate, partnership or limited liability company action, as the case may be, to authorize the execution, delivery and performance by it of this First Amendment. Each Credit Party has duly executed and delivered this First Amendment, and this First Amendment constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

B. Approvals. No order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, (i) the execution, delivery and performance of this First Amendment or (ii) the legality, validity, binding effect or enforceability of this First Amendment (except for those that have otherwise been obtained or made).

C. No Violation. Neither the execution, delivery or performance by any Credit Party of this First Amendment, nor compliance by it with the terms and provisions hereof, (i) will contravene in any material respect any provision of any law, statute, rule or regulation or any order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a

 

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default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject, or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement, partnership agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party or any of its Subsidiaries.

D. Incorporation of Representations and Warranties From Credit Agreement. The representations and warranties contained in Section 8 of the Credit Agreement are and will be true and correct in all material respects on and as of the First Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date; provided, that, if a representation and warranty is qualified as to materiality, with respect to such representation and warranty the materiality qualifier set forth above shall be disregarded for purposes of this condition.

E. Absence of Default. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this First Amendment that would constitute a Default or an Event of Default.

Section 4. ACKNOWLEDGMENT AND CONSENT

Each of Holdings, the Borrower and each Subsidiary Guarantor has read this First Amendment and consents to the terms hereof and hereby acknowledges and agrees that any Guaranty and any Security Document to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, and shall not be impaired or limited by the execution or effectiveness of this First Amendment.

Each Subsidiary Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this First Amendment, such Subsidiary Guarantor is not required by the terms of the Credit Agreement or any other Credit Document to consent to the amendments to the Credit Agreement effected pursuant to this First Amendment and (ii) nothing in the Credit Agreement, this First Amendment or any other Credit Document shall be deemed to require the consent of any Subsidiary Guarantor to any future amendments to the Credit Agreement as amended hereby.

 

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Section 5. MISCELLANEOUS

A. Reference to and Effect on the Credit Agreement and the Other Credit Documents.

(i) On and after the First Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended hereby.

(ii) The parties hereto agree that this First Amendment is a Credit Document.

(iii) Except as specifically amended by this First Amendment, the Credit Agreement and the other Credit Documents shall remain in full force and effect and are hereby ratified and confirmed.

(iv) The execution, delivery and performance of this First Amendment shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of Administrative Agent or any Lender under, the Credit Agreement or any of the other Credit Documents.

B. Headings. Section and subsection headings in this First Amendment are included herein for convenience of reference only and shall not constitute a part of this First Amendment for any other purpose or be given any substantive effect.

C. Applicable Law. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

D. Counterparts. This First Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Any party delivering an executed counterpart of this First Amendment by telefacsimile or electronic mail also shall deliver an original executed counterpart of this First Amendment but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this First Amendment.

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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

 

 

 

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