Exhibit 10.10
EXHIBIT F TO THE THIRD
AMENDED AND RESTATED
CREDIT AGREEMENT AS
SEPARATELY EXECUTED
THIRD AMENDED AND RESTATED
HOLDINGS GUARANTY
Dated December 19, 1997
From
FITNESS HOLDINGS, INC.
in favor of
THE LENDERS PARTY TO THE CREDIT AGREEMENT
REFERRED TO HEREIN,
THE HEDGE BANKS REFERRED TO IN
THE CREDIT AGREEMENT
and
BANQUE NATIONALE DE PARIS,
as Existing Issuing Bank, Swing Line Bank and as Administrative Agent
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TABLE OF CONTENTS
Page
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SECTION 1 Guaranty; Limitation of Liability................................1
SECTION 2 Guaranty Absolute................................................2
SECTION 3 Waivers..........................................................3
SECTION 4 Payments Free and Clear of Taxes, Etc............................5
SECTION 5 Representations and Warranties...................................6
SECTION 6 Affirmative Covenants............................................7
SECTION 7 Negative Covenants...............................................8
SECTION 8 Amendments; No Waiver; Etc.......................................9
SECTION 9 Notices, Etc.....................................................9
SECTION 10 No Waiver; Remedies..............................................9
SECTION 11 Right of Setoff..................................................9
SECTION 12 Indemnification.................................................10
SECTION 13 Continuing Guaranty; Assignments Under the Credit Agreement.....10
SECTION 14 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial; Etc .....................................................10
(i)
THIRD AMENDED AND RESTATED HOLDINGS GUARANTY
THIRD AMENDED AND RESTATED HOLDINGS GUARANTY dated December 19,
1997, made by Fitness Holdings, Inc., a Delaware corporation (the "Guarantor"),
in favor of the Lenders (the "Lenders") party to the Credit Agreement (as
hereinafter defined), the Hedge Banks referred to therein and Banque Nationale
de Paris, as the Existing Issuing Bank (the "Issuing Bank"), as the Swing Line
Bank (the "Swing Line Bank") and as Administrative Agent (the "Administrative
Agent") for the Lender Parties and Agents (as defined in the Credit Agreement)
thereunder.
PRELIMINARY STATEMENTS.
1. 24 Hour Fitness, Inc., a California corporation ("24 Hour
Fitness"), is the borrower under a Second Amended and Restated Credit Agreement
dated as of March 14, 1997, as amended (the "Existing Credit Agreement"), with
the lenders named therein and Banque Nationale de Paris ("BNP") as issuing bank
and agent. Pursuant to a Second Amended and Restated Guaranty dated March 14,
1997, as amended (the "Existing Guaranty"), the Guarantor guaranteed all of the
obligations of 24 Hour Fitness under the Existing Credit Agreement.
2. The Lenders, the Issuing Bank, the Swing Line Bank, and the
Agents are parties to a Third Amended and Restated Credit Agreement dated as of
December 19, 1997 (as amended, supplemented or otherwise modified, the "Credit
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined) with 24 Hour Fitness (the "Borrower") and the
Guarantor. The Guarantor will derive substantial direct and indirect benefit
from the transactions contemplated by the Credit Agreement. It is a condition
precedent to the making of Advances by the Lenders and the Swing Line Bank under
the Credit Agreement, the issuing of Letters of Credit by the Issuing Bank under
the Credit Agreement and the entering into the Secured Hedge Agreements (as
defined in the Security Agreement) by the Hedge Banks that the Guarantor, as
owner of 100% of the outstanding shares of stock of the Borrower, shall have
executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders and the Swing Line Bank to make Advances, the Issuing Bank to
issue Letters of Credit and the Hedge Banks to enter into Hedge Agreements, the
Guarantor hereby agrees as follows:
SECTION 1. Guaranty; Limitation of Liability. (a) The Guarantor
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents and the Secured Hedge Agreements, whether for principal, interest
(including, without limitation, interest after the filing of a petition
initiating a proceeding referred to in Section 6.01(f) of the Credit Agreement,
whether or not such interest constitutes an allowed claim for purposes of such
proceeding), premiums, fees, expenses or otherwise (such Obligations of the
Borrower being the "Guarantied Obligations") and agrees to pay any and all
reasonable expenses (including, without limitation, reasonable counsel fees and
expenses) incurred by the Administrative Agent, any Lender Party or any Hedge
Bank in
enforcing any rights under this Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, the Guarantor's liability shall extend
to all amounts that constitute part of the Guarantied Obligations and would be
owed by the Borrower to the Administrative Agent, any Lender Party or any Hedge
Bank under any of the Loan Documents or any Secured Hedge Agreement but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Borrower.
(b) (i) Each Guarantor and by its acceptance of this Guaranty, the
Administrative Agent and each other Lender, hereby confirms that it is the
intention of all such parties that this Guaranty not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to this Guaranty. To effectuate the foregoing
intention, the Administrative Agent, the other Lenders and the Guarantors hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty
shall not exceed the greater of (A) the net benefit realized by such Guarantor
from the proceeds of the Advances made from time to time by the Borrower to such
Guarantor or to any subsidiary of such Guarantor and (B) the maximum amount that
will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under this Guaranty, result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, "Bankruptcy Law" means Title 11,
U.S. Code, or any similar Federal or state law for the relief of debtors.
(ii) Each Guarantor agrees that in the event any payment shall be
required to be made to the Lenders under this Guaranty or any other guaranty,
such Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and each other guarantor so as to maximize the
aggregate amount paid to the Lenders under the Loan Documents.
SECTION 2. Guaranty Absolute. The Guarantor guaranties that the
Guarantied Obligations will be paid strictly in accordance with the terms of the
Loan Documents and the Secured Hedge Agreements, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent, any Lender Party or any
Hedge Bank with respect thereto. The Obligations of the Guarantor under this
Guaranty are independent of the Guarantied Obligations and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the Borrower or
whether the Borrower is joined in any such action or actions. The liability of
the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of, and the Guarantor hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any and all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any Secured Hedge Agreement or any agreement or instrument relating
thereto;
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(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guarantied Obligations or any other
amendment or waiver of or any consent to departure from any Loan Document
or any Secured Hedge Agreement, including, without limitation, any
increase in the Guarantied Obligations resulting from the extension of
additional credit to the Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or nonperfection of any Collateral
or any taking, release, amendment or waiver of or consent to departure
from any other guaranty for all or any of the Guarantied Obligations;
(d) any manner of application of Collateral or proceeds thereof to
all or any of the Guarantied Obligations or any manner of sale or other
disposition of any Collateral for all or any of the Guarantied Obligations
or any other property and/or assets of the Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Guarantor or any of its Subsidiaries; or
(f) any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any
representation by the Administrative Agent, any Lender Party or any Hedge
Bank) that might otherwise constitute a defense available to, or a
discharge of, the Borrower, the Guarantor or any other guarantor or
surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guarantied Obligations is rescinded
or must otherwise be returned by the Administrative Agent, any Lender Party or
any Hedge Bank upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had not been made.
SECTION 3. Waivers. (a) The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guarantied Obligations and this Guaranty and any requirement that the
Administrative Agent, any Lender Party or any Hedge Bank protect, secure,
perfect or insure any Lien or any property and/or assets subject thereto or
exhaust any right or take any action against the Borrower or any other Person or
any Collateral.
(b) The Guarantor acknowledges that the Administrative Agent may,
without notice to or demand upon the Guarantor and without affecting the
liability of the Guarantor under this Guaranty, foreclose any mortgage relating
to the interests of one or more Loan Parties in properties located in the State
of California (or elsewhere) by nonjudicial sale, and the Guarantor hereby
waives any defense to the recovery by the Administrative Agent, any Lender Party
or any Hedge Bank against the Guarantor of any deficiency or otherwise to the
enforcement of this Guaranty after any such nonjudicial sale and any defense or
benefits that may be afforded by Sections 580a, 580d and 726 of the California
Code of Civil Procedure (the "California Code") or any statute or law in any
other jurisdiction having similar effect.
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Without limitation of the foregoing, the Guarantor (i) acknowledges
that following, and as a result of, the completion of any such nonjudicial sale
involving interests in real property located in the State of California, the
Guarantor may not be permitted to assert or enforce rights of subrogation,
reimbursement, exoneration, contribution or indemnification or any other rights
or remedies against the Borrower or any other Loan Party for recovery of amounts
paid by the Guarantor in respect of any Guarantied Obligations or otherwise,
(ii) understands that, in the absence of the waiver set forth in clause (iii)
below, the Guarantor may have a defense to the enforcement by any of the
Administrative Agent, the Lender Parties and the Hedge Banks of, and to any
recovery by any of the Administrative Agent, the Lender Parties and the Hedge
Banks against the Guarantor under, this Guaranty following any such nonjudicial
sale, by reason of the fact that the Administrative Agent's election to proceed
with the completion of any such nonjudicial sale may prevent the Guarantor from
asserting or enforcing rights of subrogation, reimbursement, exoneration,
contribution or indemnification or other rights or remedies as set forth in
clause (i) above, (iii) hereby knowingly waives any such defense and any similar
defense that might otherwise be available to the enforcement of, or to any
recovery by any of the Administrative Agent, the Lender Parties and the Hedge
Banks against the Guarantor under, this Guaranty following any such nonjudicial
sale, notwithstanding the fact that such nonjudicial sale may prevent the
Guarantor from asserting or enforcing such rights and remedies, and (iv) further
knowingly waives any claim against any of the Administrative Agent, the Lender
Parties and the Hedge Banks (including any claim for recovery or on account of
any payments made by the Guarantor under any of the Loan Documents or any
Secured Hedge Agreement) and any right to assert any setoff or counterclaim
against any of the Administrative Agent, the Lender Parties and the Hedge Banks,
and agrees that its obligations under the Loan Documents shall not be impaired
or otherwise affected, in either case as a result of any such loss of
subrogation, contribution or reimbursement rights or other rights or remedies
for any reason.
(c) The Guarantor hereby further irrevocably waives any defense or
benefits that may be derived from California Code Sections 2808, 2809, 2810,
2815, 2819, 2845, 2849 or 2850 and comparable provisions of the laws of any
other jurisdiction and all other suretyship defenses it would otherwise have
under the laws of California or any other jurisdiction.
(d) The Guarantor hereby irrevocably waives any duty on the part of
the Administrative Agent, any Lender Party or any Hedge Bank to disclose to the
Guarantor any matter, fact or thing relating to the business, operation or
condition of the Borrower or its property and assets now or hereafter known by
the Administrative Agent, such Lender Party or such Hedge Bank.
(e) The Guarantor hereby irrevocably waives any claim or other right
that it may now or hereafter acquire against the Borrower or any other insider
guarantor that arises from the existence, payment, performance or enforcement of
the Guarantor's Obligations under this Guaranty, any other Loan Document or any
Secured Hedge Agreement, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Administrative Agent, any
Lender Party or any Hedge Bank against the Borrower or such other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common
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law, including, without limitation, the right to take or receive from the
Borrower or such other insider guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim, remedy or right, until all of the Obligations and all
other amounts payable under this Guaranty shall have been paid in full and
Commitments shall have expired or terminated. If any amount shall be paid to the
Guarantor in violation of the immediately preceding sentence at any time prior
to the later of (i) the cash payment in full of the Guarantied Obligations and
all other amounts payable under this Guaranty and (ii) the Termination Date,
such amount shall be held in trust for the benefit of the Administrative Agent,
the Lenders Parties and the Hedge Banks and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guarantied Obligations
and all other amounts payable under this Guaranty, whether matured or unmatured,
in accordance with the terms of the Loan Documents and the Secured Hedge
Agreements or to be held by the Administrative Agent as Collateral for any
Guarantied Obligations or other amounts payable under this Guaranty thereafter
arising.
(f) The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in this Section 3 are knowingly made in
contemplation of such benefits.
(g) The Guarantor hereby waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and applies to all
Guarantied Obligations, whether existing now or in the future.
SECTION 4. Payments Free and Clear of Taxes, Etc. (a) Any and all
payments made by the Guarantor hereunder shall be made in accordance with
Section 2.12 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes except taxes incurred due to a
connection between a Lender Party and a taxing jurisdiction or taxes due to the
failure of a Lender Party to comply with regulatory requirements. If the
Guarantor shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to the Administrative Agent, any Lender Party or any Hedge
Bank, (i) the sum payable shall be increased as may be necessary so that, after
making all required deductions (including deductions applicable to additional
sums payable under this Section 4), the Administrative Agent, such Lender Party
or such Hedge Bank, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Guarantor shall
make such deductions and (iii) the Guarantor shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law. If any Lender Party determines, in its sole discretion, that it
has actually and finally realized in a year in which a payment under the Loan
Document is made or in any subsequent year, by reason of a refund, deduction or
credit of any Taxes paid or reimbursed by the Guarantor in respect of payments
under the Loan Documents, a current monetary benefit that it would otherwise not
have obtained, and that would result in the total payments under this Section 4
exceeding the amount to make such Lender Party whole, such Lender Party shall
pay to the Guarantor, with reasonable promptness following the date on which it
actually realizes such benefit, an amount equal to the lesser of the amount of
such benefit or the amount of such excess, in each case net of all out-of-pocket
expenses in securing such refund, deduction or credit.
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(b) In addition, the Guarantor agrees to pay any present or future
Other Taxes.
(c) The Guarantor will indemnify the Administrative Agent, each
Lender Party and each Hedge Bank for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4) paid by the Administrative
Agent, such Lender Party or such Hedge Bank, as the case may be, and any
liability (including penalties, additions to tax, interest and expenses
(including, without limitation, reasonable fees and disbursements of counsel))
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date the Administrative Agent, such Lender Party or such
Hedge Bank, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Guarantor shall furnish to the Administrative Agent, at its address referred to
in Section 8.02 of the Credit Agreement, the original receipt of payment thereof
or a certified copy of such receipt if any receipt is issued therefor or, if no
such receipt is issued, appropriate evidence of payment thereof. If no Taxes are
payable in respect of any payment hereunder by the Guarantor through an account
or branch outside the United States or on behalf of the Guarantor by a payor
that is not a United States person, the Guarantor shall furnish, or shall cause
such payor to furnish, to the Administrative Agent, at such address, a
certificate from the appropriate taxing authority or authorities or an opinion
of counsel acceptable to the Administrative Agent, in either case stating that
such payment is exempt from or not subject to Taxes.
(e) Without prejudice to the survival of any other agreement of the
Guarantor hereunder, the agreements and obligations of the Guarantor contained
in this Section 4 shall survive the payment in full of the Guarantied
Obligations and all other amounts payable under this Guaranty.
SECTION 5. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed would not
have a Material Adverse Effect and (iii) has all requisite corporate power
and authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted. All of the
outstanding capital stock of the Borrower has been validly issued, is
fully paid and non-assessable and is owned by the Guarantor free and clear
of all Liens, except those created under the Collateral Documents.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty are within the Guarantor's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene
the Guarantor's charter or bylaws, (ii) violate any law (including,
without limitation, the Securities Exchange Act of 1934 and the
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Racketeer Influences and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or
award, (iii) conflict with or result in the breach of, or constitute a
default under, any loan agreement, contract, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting the Guarantor,
any of its Subsidiaries or any of its or their properties or (iv) except
for the Liens created under the Collateral Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of the Guarantor or any of its Subsidiaries. The Guarantor is
not in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award, or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which would be reasonably
likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery,
recordation, filing or performance by the Guarantor of this Guaranty and
(ii) the exercise by the Administrative Agent, any Lender Party or any
Hedge Bank of its rights under this Guaranty.
(d) This Guaranty has been duly executed and delivered by the
Guarantor. This Guaranty is the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms.
(e) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(f) The Guarantor has, independently and without reliance upon the
Administrative Agent, any Lender Party or any Hedge Bank and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Guaranty.
SECTION 6. Affirmative Covenants. (a) The Guarantor covenants and
agrees that, so long as any part of the Guarantied Obligations shall remain
unpaid, any Letter of Credit shall be outstanding, any Lender Party shall have
any Commitment or any Hedge Bank shall have any obligation under any Secured
Hedge Agreement, the Guarantor will at all times require, perform or observe,
and will cause the Borrower and each of its Subsidiaries, including Foreign
Subsidiaries, to perform or observe, all of the terms, covenants and agreements
that the Loan Documents, including, without limitation, the provisions of
Section 5.04 of the Credit Agreement, and the Secured Hedge Agreements state
that the Guarantor or the Borrower or any other Loan Party is to perform or
observe or that the Guarantor or the Borrower is to cause any Loan Party's
Subsidiaries, including Foreign Subsidiaries, to perform or observe.
(b) The Guarantor covenants and agrees that it shall furnish to the
Borrower each of the notices and financial statements required to be delivered
by the Borrower pursuant to
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Section 5.03 of the Credit Agreement relating to the Guarantor within the time
periods specified for the delivery of such notices in such Section 5.03.
(c) The Guarantor covenants and agrees that it shall perform and
observe in all material respects all of the terms and provisions of each Related
Document to be performed or observed by it, maintain each such Related Document
in full force and effect, enforce such Related Document in accordance with its
terms, take all such action to such end as may be from time to time reasonably
requested by the Administrative Agent and, upon such request of the
Administrative Agent, make to each other party to each such Related Document
such demands and requests for information and reports or for action as the
Borrower is entitled to make under such Related Document.
SECTION 7. Negative Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guarantied Obligations shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment or any Hedge Bank shall have any obligation under any Secured Hedge
Agreement, the Guarantor will not at any time enter into or conduct any
business, or engage in any activity (including, without limitation, any action
or transaction that is required or restricted with respect to the Borrower and
its Subsidiaries under Sections 5.01 and 5.02 of the Credit Agreement without
regard to any of the enumerated exceptions to such covenants), other than:
(a) holding the capital stock of the Borrower, discharging certain
administrative activities otherwise permitted by the Credit Agreement and
making payments with respect to certain administrative services and tax
liability to the extent contemplated by the Loan Documents (including,
without limitation, Section 5.02(f) of the Credit Agreement);
(b) performing its Obligations under each Loan Document to which it
is a party, including entering into this Agreement and the Holdings Pledge
Agreement;
(c) issuing stock and stock equivalents, including issuing stock in
connection with an initial public offering of the Guarantor's common
stock, and/or repurchasing stock and/or stock equivalents;
(d) declaring and paying dividends and distributions (x) payable
only in common stock of the Guarantor, or (y) as permitted under Section
5.02(f)(i)(F) of the Credit Agreement;
(e) purchasing, redeeming, retiring, defeasing or otherwise
acquiring shares of its capital stock with the proceeds received from the
issuance of new shares of its capital stock with equal or inferior voting
powers, designations, preferences and rights;
(f) making of any payments required by the Holdings Notes and the
other Debt of the Parent Guarantor permitted by clause (j) below;
(g) performing its obligations under the MDC Management Agreement;
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(h) performing its Obligations under the guaranty dated October 24,
1996, from the Guarantor in favor of Landhigh Investments, Inc.;
(i) guarantying obligations of the Borrower in connection with
operating leases entered into in the ordinary course of business; and
(j) issue Debt, provided that such Debt is (x) evidenced by a
promissory note in form and substance satisfactory to the Administrative
Agent which shall be pledged, under the terms of the Collateral Documents,
to the Administrative Agent on behalf of the Secured Parties immediately
upon its creation, (y) is subject to an Intercompany Subordination
Agreement, duly executed by the Guarantor and the Borrower and (z) is
issued solely to the Borrower for the purposes listed in Section
5.02(e)(iv)(B) of the Credit Agreement.
SECTION 8. Amendments; No Waiver; Etc. No amendment or waiver of any
provision of this Guaranty, and no consent to any departure by the Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, do any of the following at any time:
(i) release or limit the liability of the Guarantor hereunder, (ii) postpone any
date fixed for payment hereunder or (iii) amend this Section 8.
SECTION 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Guarantor, addressed to it at the address set forth below the name of
the Guarantor on the signature page hereof, if to the Administrative Agent or
any Lender Party, addressed to it at its address set forth in Section 8.02 of
the Credit Agreement or as to any Hedge Bank or any other party at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section 9. All such
notices and other communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, transmitted by telecopier,
delivered to the telegraph company or confirmed by telex answerback,
respectively, addressed as aforesaid.
SECTION 10. No Waiver; Remedies. No failure on the part of the
Administrative Agent, any Lender Party or any Hedge Bank to exercise, and no
delay in exercising, any right, power or privilege hereunder shall operate as a
waiver thereof or consent thereto; nor shall any single or partial exercise of
any such right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 11. Right of Setoff. Upon a) (a) the occurrence and during
the continuance of any Event of Default and b) (b) the making of the request or
the granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Administrative Agent
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to declare the Notes due and payable pursuant to the provisions of such Section
6.01, each Lender Party and each Hedge Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender Party
or such Hedge Bank, as the case may be, to or for the credit or the account of
the Guarantor against any and all of the Obligations of the Guarantor now or
hereafter existing under this Guaranty, whether or not such Lender Party or such
Hedge Bank shall have made any demand under this Guaranty. Each Lender Party and
each Hedge Bank agrees to notify promptly the Guarantor after any such setoff
and application; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender Party and each Hedge Bank under this Section 11 are in addition to other
rights and remedies (including, without limitation, other rights of setoff) that
such Lender Party and such Hedge Bank may have.
SECTION 12. Indemnification. Without limitation on any other
Obligations of the Guarantor or remedies of the Administrative Agent, Lender
Parties or the Hedge Banks under this Guaranty, the Guarantor shall, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless
the Administrative Agent, Lender Parties and the Hedge Banks from and against,
and shall pay on demand any and all losses, liabilities, damages, costs,
expenses and charges (including the reasonable and documented fees and
disbursements of the legal counsel of the Administrative Agent, Lender Parties
and the Hedge Banks and the reasonable and documented charges of the internal
legal counsel of the Administrative Agent, Lender Parties and the Hedge Banks)
suffered or incurred by any of the Administrative Agent, Lender Parties or the
Hedge Banks as a result of (a) any failure of any Guarantied Obligations to be
the legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the rights of creditors
generally, or (b) any failure of the Borrower to pay and perform any Guarantied
Obligations in accordance with the terms of such Guarantied Obligations.
SECTION 13. Continuing Guaranty; Assignments Under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the indefeasible cash payment in full
of the Guarantied Obligations and all other amounts payable under this Guaranty,
(ii) the Final Maturity Date and (iii) the termination or expiration of all
Secured Hedge Agreements, (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of, and be enforceable by, the
Administrative Agent, the Lender Parties and the Hedge Banks and their
respective successors, transferees and assigns. Without limiting the generality
of the foregoing clause (c), any Lender Party may assign or otherwise transfer
all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitment or
Commitments, the Advances owing to it and any Note or Notes held by it) to any
other Person and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each
case as provided in Section 8.07 of the Credit Agreement. Upon the later of (i)
the payment in full of the Guarantied Obligations and all other amounts payable
under this Guaranty, (ii) the Final Maturity Date, and (Ili) the termination or
expiration of all Secured Hedge Agreements, the Guaranty granted hereby shall
terminate. Upon any such termination, the Administrative Agent
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will, at the Guarantor's expense, execute and delivery to the Guarantor such
documents as the Guarantor shall reasonably request to evidence such
termination.
SECTION 14. Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial; Etc. a) (a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty or any other Loan Document or
Secured Hedge Agreement to which it is or is to be a party, or for recognition
and enforcement of any judgment, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State or, to the
extent permitted by law, in such federal court. The Guarantor irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection or defense that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Guaranty or any of the other Loan Documents to which it is or is to be a party
in any New York State or federal court. The Guarantor hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. The Guarantor
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing herein shall affect the right that
any party may otherwise have to commence or participate in any action, suit or
proceeding relating to this Guaranty, any of the other Loan Documents or any
Secured Hedge Agreement to which it is or is to be a party, or otherwise to
proceed against the Guarantor, in any other jurisdiction.
(c) The Guarantor irrevocably consents to the service of any and all
process in any such action, suit or proceeding by the mailing of copies of such
process to the Guarantor at the address set forth below its name on the
signature page hereof, or by any other method permitted by law. The Guarantor
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(d) To the extent that the Guarantor has or hereafter may acquire
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Guarantor hereby irrevocably waives such inununity in respect of its Obligations
under this Guaranty, any other Loan Document and any Secured Hedge Agreement to
which it is or is to be a party.
(e) The Guarantor hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Guaranty, any other Loan
Document or any Secured Hedge Agreement, the
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transactions contemplated hereby or thereby or the actions of the Administrative
Agent, any Lender Party or any Hedge Bank in the negotiation, administration,
performance or enforcement hereof or thereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
FITNESS HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:Chief Financial Officer
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