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Exhibit 4.8
SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated as of November
6, 2000 ("Agreement"), by and among TOWN SPORTS INTERNATIONAL, INC., a New York
corporation (the "Company"), BRUCKMANN, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & CO., L.P., a Delaware
limited partnership ("BRS"), ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (collectively, the "Executives"), CANTERBURY MEZZANINE
CAPITAL, L.P., a Delaware limited partnership ("Canterbury"), CANTERBURY DETROIT
PARTNERS, L.P., a Delaware limited partnership ("Canterbury Detroit" and,
together with Canterbury, the "Canterbury Group"), FARALLON CAPITAL PARTNERS,
L.P., a California limited partnership ("FCP"), FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P., a California limited partnership ("FCIP"), RR CAPITAL PARTNERS,
L.P., a Delaware limited partnership ("RRC"), FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P., a California limited partnership ("FII" and, together with
FCP, FCIP, and RRC, the "Farallon Investors", and individually, a "Farallon
Investor"), ROSEWOOD CAPITAL, L.P., a Delaware limited partnership (the
"Rosewood Investor") and CAPITALSOURCE HOLDINGS LLC, a Delaware limited
liability company ("CapitalSource").
WHEREAS, the Company, BRS, the Executives, Canterbury, the Farallon
Investors and certain other shareholders of the Company are parties to that
certain Registration Rights Agreement, dated as of December 10, 1996 (as amended
from time to time, the "Registration Rights Agreement"; capitalized terms used
and not otherwise defined herein having the definitions provided therefor in the
Registration Rights Agreement).
WHEREAS, CapitalSource has acquired shares of the Company's Class A
Common, pursuant to the Stock Purchase Agreement, dated as of November 6, 2000,
by and among CapitalSource and the Company (as the same may be amended, restated
or modified from time to time, the "CapitalSource Purchase Agreement").
WHEREAS, the parties hereto wish to amend the Registration Rights
Agreement in accordance with the terms thereof as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Amendments to Section 1 -- "Definitions". (a) Section 1 of the
Registration Rights Agreement is hereby amended by inserting the following
definitions in alphabetical order in such Section 1:
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"CapitalSource Registrable Securities" means (i) any shares of
Common Stock issued or issuable to CapitalSource or its affiliates or partners
on or after the date hereof and (ii) any shares of capital stock of the Company
issued or issuable with respect to the securities referred to in clause (i) by
way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. For
purposes of this Agreement, a Person will be deemed to be a holder of
CapitalSource Registrable Securities whenever such Person has the right to
acquire directly or indirectly such CapitalSource Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected. Such
securities will cease to be CapitalSource Registrable Securities when sold
pursuant to Rule 144 or any offering registered under the Securities Act.
Notwithstanding the foregoing, the Series A-2 Shares (as defined in the
CapitalSource Purchase Agreement) shall not be deemed Registrable Securities
hereunder until following the Determination Date (as defined in the
CapitalSource Purchase Agreement).
"Registrable Securities" means the BRS Registrable Securities, the
Farallon Registrable Securities, the Rosewood Registrable Securities, the
Canterbury Registrable Securities, the Executive Registrable Securities and the
CapitalSource Registrable Securities.
2. Amendment to Section 2 - "Demand Registrations." Section 2 of the
Registration Rights Agreement is hereby amended to replace paragraph 2(c) in its
entirety as follows:
"(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), (i) the holders of BRS
Registrable Securities will be entitled to request an unlimited number of
Short-Form Registrations, (ii) the holders of Farallon Registrable Securities
will be entitled to request up to three (3) Short-Form Registrations, (iii) the
holders of Canterbury Registrable Securities will be entitled to request up to
two (2) Short-Form Registrations and (iv) the holders of CapitalSource
Registrable Securities will be entitled to request up to one (1) Short-Form
Registration, in each case, in which the Company will pay all Registration
Expenses. A registration will not count as the permitted Short Form Registration
until it has become effective and unless the holder of Registrable Securities
are able to register and sell 90% of the Registrable Securities requested to be
included in such registration; it being understood and agreed that the requisite
holders of Registrable Securities making a request for a Demand Regulation
hereunder may withdraw from such registration at any time prior to the effective
date of such Demand Registration, in which case such request will not count as
one of the permitted Demand Registrations for such holders, irrespective of
whether or not such registration is effected. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Exchange Act, the Company will use its best efforts to make Short-Form
Registrations available for the sale of Registrable Securities. All
registrations requested pursuant to Sections 2(b) and 2(c) are referred to
herein as "Demand Registrations.""
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3. Amendments to Section 10 -- "Notices". Section 10 of the
Registration Rights Agreement is hereby amended to insert the following address
for notices, demands and other communications to be sent to Canterbury Detroit
after such address for Canterbury:
To Capital Source:
Capital Source Holdings LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
4. Miscellaneous.
(a) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(b) GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(c) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) References. Any reference to the Registration Rights Agreement
contained in any notice, request, certificate, or other document executed
concurrently with or after the execution and delivery of this Agreement shall be
deemed to include this Agreement unless the context shall otherwise require.
(e) Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Agreement are not intended to and do not serve to
effect a novation as to the Registration Rights Agreement. The parties hereto
expressly do not intend to extinguish the
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Registration Rights Agreement. Instead, it is the express intention of the
parties hereto to reaffirm the obligations created under the Registration Rights
Agreement. The Registration Rights Agreement as amended hereby remains in full
force and effect.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TOWN SPORTS INTERNATIONAL, INC.
By:/s/ ▇.▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
BRUCKMANN, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & CO., L.P.
By: BRS Partners, Limited Partnership
Its: General Partner
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
CANTERBURY DETROIT PARTNERS, L.P.
By: Canterbury Detroit, LLC
Its: General Partner
By: /s/ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Member
CANTERBURY MEZZANINE CAPITAL, L.P.
By: Canterbury Capital, LLC
Its: General Partner
By: /s/ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Member
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FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
FARALLON CAPITAL INSTITUTIONAL PARTNERS,
L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member
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FARALLON CAPITAL INSTITUTIONAL PARTNERS
II, L.P.
By: Farallon Partners, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Member:
ROSEWOOD CAPITAL, L.P.
By: Rosewood Capital Associates, L.P.
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
CAPITALSOURCE HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
General Counsel
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EXECUTIVE SIGNATURE PAGE
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