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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT
NO. 1
TO
FORM T-3
FOR APPLICATION FOR QUALIFICATION OF INDENTURE
UNDER THE TRUST INDENTURE ACT OF 1939
Bally
Total Fitness Holding Corporation
(Name of Applicant)
8700 West Bryn Mawr Avenue
Chicago, Illinois
(Address of principal executive office)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
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Title of Class
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Amount |
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13-5/8% Senior Subordinated Notes
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$90,000,000 |
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
On, or as soon as practicable following the Effective Date of the Applicants Joint
Prepackaged Chapter 11 Plan of Reorganization.
Marc D. Bassewitz
Senior Vice President, Secretary and General Counsel
8700 West Bryn Mawr Avenue
Chicago, Illinois 60631
(773) 399-7606
(Name and address of agent for service)
With a copy to:
Mark D. Gerstein, Esq.
Latham & Watkins LLP
Sears Tower Suite 5800
233 South Wacker Drive
Chicago, Illinois 60606
(312) 876-7700
The
obligor hereby amends this application for qualification on such date
or dates as may be necessary to delay its effective date until:
(1) the 20th day after the filing of a further amendment that
specifically states that it will supersede this application for
qualification or (ii) such date as the Commission, acting
pursuant to Section 307(c) of the Trust Indenture Act of 1939,
as amended (the Trust Indenture Act), may determine upon
the written request of the obligor.
EXPLANATORY
NOTE
This Amendment No. 1 to Form T-3 (this Amendment) is being filed solely to:
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incorporate the amendments (the Plan Amendments) to the Plan (as defined below) filed
by the Company with the bankruptcy court following the initial filing of the Application
for Qualification of Indentures on Form T-3 (File No. 022-28841) filed by Bally Total
Fitness Holding Corporation (the Company) with the Securities and Exchange Commission on
July 24, 2007 (the Form T-3); |
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incorporate the resignation of Ronald G. Eidell as Senior Vice President, Chief
Financial Officer of the Company (the Management Change); and |
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replace U.S. Bank National Association, as Trustee, with HSBC Bank USA, National
Association, as Trustee (the HSBC Substitution). |
As explained below, the Plan Amendments allow the Company to consummate the Noteholder
Proposal (as defined below) or the Harbinger Proposal (as defined below) in connection with its
Chapter 11 reorganization. The New Senior Subordinated Notes (as defined below) to be issued under
the New Senior Subordinated Notes Indenture to be qualified hereby would only be issued if the
Noteholder Proposal is consummated.
In order to incorporate Plan Amendments and the Management Change, this Amendment amends and
restates (i) Item 2. Securities Act Exemption Applicable, (ii) Item 4. Directors and Officers,
(iii) Item 5. Principal Owners of Voting Securities, (iv) Item 7. Capitalization and (v) Item 8.
Analysis of Indenture Provisions.
In order to incorporate the HSBC Substitution, this Amendment amends and restates (i) Exhibit
T3C, the New Senior Subordinated Notes Indenture and (ii) Exhibit T3G, Form T-1 qualifying HSBC
Bank USA, National Association as Trustee under the New Senior Subordinated Notes Indenture.
This Amendment is not intended to amend or delete any other part of the Form T-3.
GENERAL
Item 1. General Information
(a) Bally Total Fitness Holding Corporation is a Delaware corporation.
Item 2. Securities Act Exemption Applicable
As described in the proposed joint prepackaged Chapter 11 plan of reorganization of the Company and its affiliate
debtors (the Plan), a copy of which is filed as Exhibit T3E-3 to this Form T-3, the Company has accepted alternative restructuring proposals from (i) Anschutz Investment Company, Goldman
Sachs & Co. and funds advised by Tennenbaum Capital Partners, LLC (the Sponsoring Subordinated
Noteholders) and (ii) Harbinger Capital Partners Master Fund I, Ltd. and Harbinger Capital
Partners Special Situations Fund L.P. (Harbinger). Subject to the terms and conditions of the
Plan, when the Plan becomes effective on the date on which all conditions to consummation of the
Plan have been satisfied or waived (the Effective Date), either (i) the restructuring proposal
funded by the Sponsoring Subordinated Noteholders (the Noteholder Proposal) or (ii) the
restructuring proposal funded by Harbinger will be consummated (the Harbinger Proposal). If the
Noteholder Proposal is consummated pursuant to the Plan, the Company will
issue up to $90,000,000 of 13-5/8% Senior Subordinated Notes (the New Senior Subordinated Notes)
under an indenture to be qualified hereby (the New Senior Subordinated Notes Indenture) to
holders of the Companys existing 9-7/8% Senior Subordinated Notes due 2007 (the Prepetition
Senior Subordinated Notes), who will receive their pro rata share of 13-5/8% Subordinated Notes,
13-5/8% Junior Subordinated Notes, new common stock in the Company and rights to purchase the New
Senior Subordinated Notes for cash pursuant to a rights offering (the Rights Offering). As
described in the Disclosure Statement, the Company has agreed to pay the Backstop Parties a
Backstop Commitment Fee in consideration for their entry into the Subscription and Backstop
Purchase Agreement, pursuant to which the Backstop Parties have agreed to purchase New Senior
Subordinated Notes in the Rights Offering.
The Company solicited pre-petition acceptances of the Plan and commenced a bankruptcy case on July 31, 2007. As originally filed with the bankruptcy court,
the Plan contemplated only the Noteholder Proposal. Prior to the commencement of its bankruptcy
case, the Company filed applications to qualify four indentures governing four series of debt
securities to be issued pursuant to the Noteholder Proposal, if the Noteholder Proposal is
consummated, including the New Senior Subordinated Notes Indenture. Concurrently with this
Amendment, the Company will file applications to qualify two indentures governing two series of
debt securities to be issued pursuant to the Harbinger Proposal, if the Harbinger Proposal is
consummated, but that will not be issued if the Noteholder Proposal is consummated. The Company
filed the Plan Amendments with the bankruptcy court on August 13, 2007 and August 17, 2007. If the
Noteholder Proposal is consummated under the Plan and the New Senior Subordinated Notes are exchanged for Prepetition Senior Subordinated Notes pursuant
to the Plan, the issuance of the New Senior Subordinated Notes would be exempt from registration
under the Securities Act of 1933, as amended (the Securities Act), pursuant to the exemption
provided by Sections 1145(a)(1) and 1145(a)(2) of Title 11 of the United States Bankruptcy Code. To
the extent that the solicitation of acceptances of the Plan constitutes an offer of new securities
not exempt from registration under Sections 1145 (a)(1) and 1145(a)(2), the Company relied on Section 3(a)(9) of the Securities Act and Section 4(2) of the Securities Act and, to the extent
applicable, Regulation D promulgated thereunder.
1
Generally, Section 1145(a)(1) exempts an offer and sale of securities under a plan of
reorganization from registration under the Securities Act and state securities laws if three
principal requirements are satisfied: (i) the securities must be offered and sold under a plan of
reorganization and must be securities of the debtor, an affiliate participating in a joint plan
with the debtor or a successor to the debtor under the plan; (ii) the recipients of the securities
must hold a prepetition or administrative expense claim against the debtor or an interest in the
debtor; and (iii) the securities must be issued entirely in exchange for the recipients claim
against or interest in the debtor, or principally in such exchange and partly for cash or property.
Section 1145(a)(2) exempts an offer of a security through any right to subscribe that was sold in
the manner specified in Section 1145(a)(1), or the sale of a security upon the exercise of such a
right. The Company believes that the offer of the New Senior Subordinated Notes under the
solicitation of acceptances for the Plan and the exchange of New Senior Subordinated Notes for
Prepetition Senior Subordinated Notes under the Plan will satisfy the requirements of either
Section 3(a)(9) or Section 4(2) of the Securities Act and Sections 1145(a)(1) and 1145(a)(2) of the
Bankruptcy Code, respectively, and, therefore, such offer and exchange is exempt from the
registration requirements referred to above.
No sales of securities of the same class as the New Senior Subordinated Notes have been or are
to be made by the Company by or through an underwriter at or about the same time as the
solicitation of acceptances and exchange for which the exemption is claimed. No other
consideration has been, or is to be, given, directly or indirectly, to any person in connection
with the transaction, except for customary payments to be made in respect of (1) preparing,
printing and mailing the Disclosure Statement and related documents, (2) the engagement of
MacKenzie Partners, Inc., as voting agent for the solicitation of pre-petition acceptances of the
Plan, (3) payments of the fees and expenses of the Companys legal and financial advisors and (4)
payment of the Backstop Commitment Fee to the Backstop Parties, as described above, in respect of
which the Company believes that the offer and sale of the New Senior Subordinated Notes will
satisfy the requirements of Section 4(2) of the Securities Act and, to the extent applicable,
Regulation D promulgated thereunder. Neither the voting agent nor the Companys financial advisors
solicited acceptances in connection with the Companys solicitation of approval for the Plan or
made recommendations as to acceptance or rejection of the Plan. The compensation payable to the
agents and advisors is not conditioned on the acceptance of the Plan.
AFFILIATIONS
Item 3. Affiliates
(a) An organizational chart showing the affiliates of the Company as of the date of this
Application for Qualification on Form T-3 (Application) is attached hereto as Exhibit T3H and is
incorporated herein by reference. Unless otherwise indicated, each subsidiary is wholly owned by
its parent.
The Company expects all of these entities to exist upon consummation of the Plan.
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(b) Certain directors and executive officers of the Company may be deemed to be affiliates
of the Company by virtue of their positions with the Company. See Item 4, Directors and Executive
Officers.
(c) Certain persons who may be deemed to be affiliates of the Company by virtue of their
holdings of the voting securities of the Company. See Item 5, Principal Owners of Voting
Securities.
MANAGEMENT AND CONTROL
Item 4. Directors and Officers
The following table lists the name of, and offices held by, each executive officer and
director of the Company. The address of each person listed below is c/o Bally Total Fitness Holding
Corporation, 8700 West Bryn Mawr Avenue, Chicago, Illinois 60631.
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Name |
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Office / Position |
Don R. Kornstein
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Director, Interim Chairman, Chief Restructuring Officer |
Julie Adams
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Senior Vice President, Membership Services |
Marc D. Bassewitz
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Senior Vice President, Secretary and General Counsel |
William G. Fanelli
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Senior Vice President, Finance and Corporate Development |
Michael A. Feder
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Chief Operating Officer |
Gail J. Holmberg
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Senior Vice President, Chief Information Officer |
Thomas S. Massimino
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Senior Vice President, Operations |
Harold Morgan
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Senior Vice President, Chief Administrative Officer |
John H. Wildman
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Senior Vice President, Sales and Interim Chief Marketing Officer |
Theresa R. Willows
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Senior Vice President, Customer Care and Member Services |
Charles J. Burdick
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Director |
Barry R. Elson
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Director |
Eric Langshur
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Director |
Item 5. Principal Owners of Voting Securities
(a) Voting Securities as of the Date of Application. The following tables set forth certain
information concerning the beneficial ownership of the voting securities of the Company by persons
known by the Company to beneficially own more than 10% of its outstanding voting securities as of
August 17, 2007:
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Percentage of |
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Title of Class |
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Voting Securities |
Name and Complete Mailing Address |
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Owned |
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Amount Owned |
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Owned |
Pardus Capital Management L.P.
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Common Stock |
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6,105,500 shares
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14.8 |
% |
1001 Avenue of the Americas, Suite 1100
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Par Value $.01
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New York, New York 10018 |
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Emanuel R. Pearlman
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Common Stock |
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4,619,450 shares
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11.2 |
% |
Liberation Investment Group LLC
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Par Value $.01
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Liberation Investments, Ltd. |
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Liberation Investments, L.P. |
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330 Madison Avenue, 6th Floor |
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New York, NY 10017 |
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(b) Voting Securities as of the Effective Date. The Company expects that, as of the Effective
Date each of the Sponsoring Subordinated Noteholders may own in excess of 10% of the Companys voting securities if the Noteholder proposal is consummated.
UNDERWRITERS
Item 6. Underwriters
(a) Within the three years prior to the date of filing this application, no person acted as
underwriter of any securities of the Company which were outstanding as of the date of this
application.
(b) No person is acting as principal underwriter of the securities proposed to be offered
pursuant to the New Senior Subordinated Notes Indenture.
CAPITAL SECURITIES
Item 7. Capitalization
(a) Capitalization as of the Date of Application. The following table sets forth information,
as of August 17, 2007, certain information with respect to each authorized class of securities of the
Company:
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Title of Class |
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Amount Authorized |
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Amount Outstanding |
Common Stock, par value $.01 per share |
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60,200,000 shares |
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41,221,512 shares |
Preferred Stock, par value $.10 per share |
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10,000,000 shares |
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No shares
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Series A Junior Participating Preferred Stock |
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602,000 shares |
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No shares
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Series B Junior Participating Preferred Stock |
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100,000 shares |
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No shares
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10-1/2 % Senior Notes Due 2011 |
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$ |
235,199,000 |
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9-7/8% Series D Senior Subordinated Notes Due 2007 |
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$ |
297,538,000 |
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9-7/8% Series B Senior Subordinated Notes Due 2007 |
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$ |
236,000 |
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The Common Stock of the Company is the only class of voting securities of the Company. Each
share of Common Stock of the Company is entitled to one vote.
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(b) Capitalization as of the Effective Date. The following table sets forth, as
of the Effective Date if the Noteholder proposal is consummated, certain information with respect to each authorized class of securities of the
Company:
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Title of Class |
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Amount Authorized |
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Amount Outstanding |
Common Stock, par value $.01 per share
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450,000 shares
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300,000 shares |
Preferred Stock, par value $.10 per share
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200,000 shares
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No shares |
12-3/8% Senior Second Lien Notes
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$247,337,500
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$247,337,500 |
13-5/8% New Senior Subordinated Notes
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approximately
$90,000,000
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approximately
$90,000,000 |
13-5/8% New Subordinated Notes
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approximately
$80,000,000
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approximately
$80,000,000 |
13-5/8% New Junior Subordinated Notes
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approximately
$70,000,000
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approximately
$70,000,000 |
INDENTURE SECURITIES
Item 8. Analysis of Indenture Provisions
The New Senior Subordinated Notes will be subject to the New Senior Subordinated Notes
Indenture between the Company and HSBC Bank USA, National Association, as trustee (the Trustee). The
following is a general description of certain provisions of the New Senior Subordinated Notes
Indenture, and the description is qualified in its entirety by reference to the form of Indenture
filed as exhibit T3C herewith. Capitalized terms used below and not defined herein have the
meanings ascribed to them in the New Senior Subordinated Notes Indenture.
(a) Events of Default; Withholding of Notice of Default.
The occurrence of any of the following events will constitute an Event of Default under the
New Senior Subordinated Notes Indenture: (i) failure to pay any interest on any of the New Senior
Subordinated Notes when due, continued for 30 days; (ii) failure to pay the principal of, or
premium, if any, on the New Senior Subordinated Notes at Maturity; (iii) failure by the Company to
comply with certain covenants and such failure continues for 30 days after notice; (iv) failure by
the Company to comply with certain covenants regarding sales of assets or repurchases of the New
Senior Subordinated Notes upon certain events; (v) default under any indebtedness of the Company or
any Subsidiary which individually or in the aggregate is in excess of $10,000,000 and either (a) is
caused by a failure to pay principal of such indebtedness when due an prior to the expiration of
the grace period provided in such indebtedness or (b) results in the acceleration of such
indebtedness; (vi) failure by the Company or any of its Subsidiaries to pay final judgments
aggregating in excess of $10,000,000, which judgments are not paid, stayed or otherwise discharged
for a period of 60 days; (vii) the rendering of a decree, judgment or order by a court of competent
jurisdiction against the Company or any of its Significant Subsidiaries under any bankruptcy or
similar law which remains undischarged or unstayed for a period of 60 days; or (viii) certain
events of bankruptcy or insolvency with respect to the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing (other than an Event of Default described in
clauses (vii) or (viii) of the preceding paragraph), the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding New Senior Subordinated Notes, by a notice in writing
to the Company, may declare the unpaid principal of, and accrued and unpaid interest on, and other
Obligations under, such New Senior Subordinated Notes to be due and payable immediately.
Notwithstanding the foregoing, if an Event of Default related to the Company and described in
clauses (vii) or (viii) of the preceding paragraph occurs, the unpaid principal of, and accrued and
unpaid interest on, and other Obligations under all outstanding New Senior Subordinated Notes will
become immediately due and payable without further action or notice. Any such declaration with
respect to the New Senior Subordinated Notes may be annulled by the Holders of a majority in
aggregate principal amount of the outstanding New Senior Subordinated Notes upon the conditions
provided in the New Senior Subordinated Notes Indenture.
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(b) Execution, Authentication, Delivery and Dating; Application of Money Collected.
The New Senior Subordinated Notes may be executed on behalf of the Company by one of its
Chairman of the Board, its President, its Chief Executive Officer, its Chief Financial Officer or
one of its Vice Presidents and attested by its Secretary or one of its Assistant Secretaries. The
signatures of any of these officers on the New Senior Subordinated Notes may be manual or
facsimile. Each Guarantor shall execute a Guarantee in the manner set forth in the New Senior
Subordinated Notes Indenture.
Notes bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such New
Senior Subordinated Notes or did not hold such offices at the date of such New Senior Subordinated
Notes
On the Issue Date, the Company may deliver New Senior Subordinated Notes in the outstanding
aggregate principal amount of $90,000,000 executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such Notes;
and the Trustee in accordance with such Company Order shall authenticate and make available for
delivery such Notes as provided in the New Senior Subordinated Notes Indenture and not otherwise.
(c) Satisfaction and Discharge.
The New Senior Subordinated Notes Indenture will be discharged and cease to be of further
effect as to all of the New Senior Subordinated Notes issued, when (i) either (a) the Company
delivers to the Trustee all outstanding New Senior Subordinated Notes for cancellation or (b) all
such New Senior Subordinated Notes become due and payable, whether at maturity, within one year of
maturity or on a redemption date specified in a proper notice to the Trustee; (ii) the Company has
paid or caused to be paid all amounts payable to discharge the entire Indebtedness, including the
principal, premium (if any) and accrued interest; and (iii) the Company delivers to the Trustee an
Officers Certificate and an Opinion of Independent Counsel, each stating that all conditions have
been complied with and such satisfaction and discharge will not result in a violation of the New
Senior Subordinated Notes Indenture.
(d) Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end of its fiscal year an
Officers Certificate stating that a review of the activities of the Company during such fiscal
year has been made with a view to determining whether the Company has fulfilled all of its
obligations and is in compliance with all covenants under the New Senior Subordinated Notes
Indenture and, if there has been a Default, specifying each Default and the nature and status
thereof. If a Default or Event of Default occurs and is continuing, the Company will deliver to
the Trustee, within 10 business days after becoming aware of its occurrence, a certificate
describing the Default or Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
Item 9. Other Obligors
No person other than the Company is an obligor of the New Senior Subordinated Notes.
Contents of application for qualification. This application for qualification comprises:
(a) Pages
numbered 1 to 8, consecutively.
(b) The
statement of eligibility and qualification on Form T-1 of HSBC Bank
USA, National Association under the Indenture to be qualified.
(c) The following exhibits in addition to those filed as part of the statement of eligibility
and qualification of such Trustee:
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Exhibit |
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Title |
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Exhibit T3A
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Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Companys
registration statement on Form S-1 filed January 3, 1996,
registration no. 33-99844) |
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Exhibit T3B
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Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 to the Companys Current Report on
Form 8-K, file no. 001-13997, dated May 27, 2005)
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Exhibit T3C*
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Form of Indenture |
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Exhibit T3D
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Not applicable |
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Exhibit T3E-1
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Disclosure Statement With Respect to Joint Prepackaged
Chapter 11 Plan of Reorganization of Bally Total Fitness
Holding Corporation and its Affiliate Debtors and Joint
Prepackaged Chapter 11 Plan of Reorganization of the Company
and its Affiliate Debtors (incorporated by reference to
Exhibit 99.2 to the Companys Current Report on Form 8-K,
file no. 001-13997, dated June 27, 2007) |
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Exhibit T3E-2
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Beneficial Owner Ballot for Voting the 9.875% Senior
Subordinated Notes Due 2007, Series B, and the 9.875% Senior
Subordinated Notes Due 2007, Series D, Issued by Bally Total
Fitness Holding Corporation; Beneficial Owner Ballot for
Voting the 10.5% Senior Notes Due 2011 Issued by Bally Total
Fitness Holding Corporation; Master Ballot for Voting the
10.5% Senior Notes Due 2011 Issued by Bally Total Fitness
Holding Corporation; and Master Ballot for Voting the 9.875%
Senior Subordinated Notes Due 2007, Series B, and the 9.875%
Senior Subordinated Notes Due 2007, Series D, Issued by
Bally Total Fitness Holding Corporation (incorporated by
reference to Exhibit 99.3 to the Companys Current Report on
Form 8-K, file no. 001-13997, dated June 27, 2007) |
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Exhibit T3E-3 |
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First Amended Joint Prepackaged Chapter 11 Plan of Reorganization of Bally Total Fitness Holding
Corporation and its Affiliate Debtors dated August 13, 2007 (incorporated by reference to Exhibit
99.2 to the Companys Current Report on Form 8-K, file no. 001-13997, dated August 22, 2007). |
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Exhibit T3E-4
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Motion of Debtors for Order, Pursuant to Section 1127(A) of the Bankruptcy Code and
Bankruptcy Rule 3019, Authorizing the Debtors to Modify Their Joint Prepackaged Chapter 11 Plan of
Reorganization, dated August 13, 2007 (incorporated by reference to Exhibit 99.2 to the Companys
Current Report on Form 8-K, file no. 001-13997, dated August 14, 2007). |
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Exhibit T3E-5*
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Notice of Emergency Hearing, dated August 13, 2007. |
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Exhibit T3E-6*
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Notice of Filing Modified Plan and Plan Exhibits, dated August 13, 2007. |
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Exhibit T3E-7*
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Notice of Filing Press Release, dated August 16, 2007. |
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Exhibit T3E-8*
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Notice of Filing Further Modified Plan and Plan Exhibits,
dated August 17, 2007. |
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Exhibit T3E-9*
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Memorandum, from Kurtzman
Carson Consultants to holders of record of the Companys notes,
dated August 21, 2007. |
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Exhibit T3F
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Cross-reference sheet showing the location in the Indenture
to Section 310 through 318(a), inclusive, of the Trust
Indenture Act (incorporated by reference to Exhibit T3F to the
Companys Form T-3, file no. 022-28841, filed
July 24, 2007) |
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Exhibit T3G*
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Form T-1 qualifying HSBC Bank
USA, National Association as
Trustee under the New Senior Subordinated Notes Indenture to be
qualified pursuant to this Form T-3 |
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Exhibit T3H
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Organizational Chart (incorporated
by reference to Exhibit T3H to the Companys Form T-3,
file no. 022-28841, filed July 24, 2007) |
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SIGNATURES
Pursuant to the requirements of the Trust Indenture Act of 1939, the Company, Bally Total
Fitness Holding Corporation, a corporation organized and existing under the laws of the State of
Delaware, has duly caused this application to be signed on its behalf by the undersigned, thereunto
duly authorized, and their seal to be hereunto affixed and attested, all in the city of Chicago,
and State of Illinois, on this 22nd day of August, 2007.
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BALLY TOTAL FITNESS HOLDING CORPORATION
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By: |
/s/ Marc D. Bassewitz
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Name: |
Marc D. Bassewitz |
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Its: Senior Vice President, Secretary and General Counsel |
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Attest:
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/s/ Kathleen M. Boege
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Name: Kathleen M. Boege |
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Its: Assistant Secretary |
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