10.73
WAIVER OF COVENANT COMPLIANCE LETTER AGREEMENT
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VIA FEDEX
March 14, 2002
The Sports Club Company
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
Mr. ▇▇▇ ▇'▇▇▇▇▇, CFO
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Waiver of Covenant Compliance
Gentlemen:
Reference is made to that certain Fourth Amended and Restated Loan
Agreement, dated as of April 1, 1999, by and among the undersigned and the
borrowers listed on the signature pages below, as amended pursuant to that
certain First Amendment to Fourth Amended and Restated Loan Agreement, dated as
of December 3, 1999, that certain Second Amendment to Fourth Amended and
Restated Loan Agreement, dated as of August 10, 2000 and that certain Third
Amendment to Fourth Amended and Restated Loan Agreement, dated as of June 1,
2001 (as the same may hereafter be amended, modified and extended and/or
restated from time to time, the "Loan Agreement").
Borrowers and Guarantors have requested that the Agent and the Banks
waive certain specific Defaults which have occurred and are continuing, and/or
may occur and continue, under the Loan Agreement, and the Agent and the Banks
are willing to do so upon the terms and conditions specified below. Therefore,
when countersigned by you in the spaces provided below, the following will
constitute our agreements as to the waiver of such Defaults:
1. Waiver of Defaults. Effective as of the Effective Date (as defined below) and
to expire no later than May 31, 2002, the Agent and the Banks hereby waive (a)
Borrowers' failure to comply with the financial covenants specified in Sections
6.13, 6.14 and 6.21(b) of the Loan Agreement, in each case with respect to the
fiscal quarter ended December 31, 2001 and (b) Borrowers' anticipated failure to
comply with the financial covenants specified in Sections 6.13, 6.14 and 6.21(b)
of the Loan Agreement with respect to the fiscal quarter ended March 31, 2002.
This waiver is strictly limited as provided above and will not extend to any
fiscal quarter other than those ended December 31, 2001 and March 31, 2002 or to
any other matter, event or transaction not specifically referred to in the
immediately preceding sentence. Expect for the matters specifically waived in
that sentence, all terms and conditions of the Loan Agreement and all other Loan
Documents remain unchanged and in full force and effect. The Agent and the Banks
reserve all of their respective powers, rights, remedies, claims, causes of
action, defenses and privileges under or in respect of the Loan Agreement and
the other Loan Documents, and each Borrower and Guarantor acknowledges that
neither the waivers reflected herein nor the Agent's or any Bank's present
awareness of the existence of any Default or Event of Default: (a) imposes any
obligation on the Agent or any Bank to defer the enforcement of its powers,
rights, remedies, claims, causes of action, defenses or privileges under the
Loan Agreement or any of the
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Loan Documents as to any matters not waived herein, such enforcement action to
be taken in the sole discretion of the Agent and/or the Banks, as the case may
be, when it or they determine that it is appropriate to do so; or (b) affects or
diminishes any Borrower's or Guarantor's obligation to comply with any term or
provision of the Loan Agreement or any other Loan Document.
Without limiting the generality of the foregoing, Borrowers and
Guarantors acknowledge that the Maturity Date is and remains May 31, 2002 and
that on the Maturity Date all of the Loans and Obligations must be paid and/or
performed in full; that no waiver contained herein will affect in any manner the
Loans or the Obligations which will so become due and payable in full on the
Maturity Date; that the Maturity Date will not be extended for any additional
period unless and until such time, if any, as the Agent and all Banks execute
and deliver to Borrowers definitive written agreements agreeing to extend the
same; and that any such extension of the Maturity Date may be granted or
withheld by the Agent and the Banks in their sole and absolute discretion.
2. Guarantors' Reaffirmation. By executing this letter agreement, each
Guarantor hereby acknowledges the waivers by the Agent and the Banks specified
in Section 1 above and, notwithstanding such waivers, hereby reaffirms as of the
Effective Date each of the covenants and agreements made by it in its respective
Guaranty and agrees that each of such covenants and agreements will remain
unmodified and in full force and effect from and after the Effective Date.
3. Conditions Precedent. The satisfaction of the following will be
conditions precedent for the benefit of the Agent and the Banks to the
effectiveness of the waivers specified above, and the date on which all of the
following conditions precedent are satisfied is referred to herein as the
"Effective Date:"
3.1. Reaffirmation of Intercreditor Agreement. The Agent will
have received a Reaffirmation of Intercreditor Agreement in the form of Exhibit
A to this letter agreement, duly executed by each of the parties to the same.
3.2. Bank Expenses. All legal fees, costs and other expenses not
to exceed $1,000.00 which the Agent and the Banks have incurred in connection
with this letter agreement as of the Effective Date but which have not
previously been reimbursed by Borrowers will have been so reimbursed by
Borrowers.
4. Representations and Warranties. Each Borrower hereby represents and
warrants to the Agent and the Banks that no event has occurred and is continuing
that is a Default, other than the Defaults waived pursuant to Section 1 above.
5. Counterparts. This letter agreement may be executed in multiple
counterparts, each of which will constitute an original and all of which, taken
together, will constitute but one and the same instrument.
6. Governing Law. This letter agreement will be governed by, and
construed in accordance with, the laws of the State of California.
Please indicate your acceptance of the foregoing by executing the
enclosed counterparts of this letter agreement in the spaces provided below and
returning the same
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to the undersigned, whereupon this letter agreement will be considered a binding
agreement.
AGENT:
COMERICA BANK-CALIFORNIA, a
California banking corporation, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
BANKS:
COMERICA BANK-CALIFORNIA, a California
banking corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
BORROWERS:
THE SPORTS CLUB COMPANY, INC.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Co-Chief Executive Officer
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▇▇▇▇▇▇▇ REALTY, INC. LA/IRVINE SPORTS CLUBS, LTD.
a California corporation a California limited partnership
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: Sports Club, Inc. of
----------------------------------- California, general partner
▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Secretary
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
and President
SPORTS CLUB, INC. OF CALIFORNIA TALLA NEW YORK, INC.,
a California corporation a New York corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------- ------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer Its:President
and President
IRVINE SPORTS CLUB, INC., SCC NEVADA, INC.,
a California corporation a Nevada corporation,
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------- --------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer Its:President
and President
THE SPORTSMED COMPANY, INC.,
a California corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
and President
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SCC SPORTS CLUB, INC.,
a Texas corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
and President
HFA SERVICES, INC.,
a California corporation,
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
and President
NY SPORTS CLUB, INC.
a Delaware corporation,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Secretary
SF SPORTS CLUB, INC.
a Delaware corporation,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Secretary
WASHINGTON D.C. SPORTS CLUB, INC.,
a Delaware corporation,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Secretary
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GUARANTORS:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
MDP VENTURES, II, LLC,
A New York limited liability company
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Its
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