EXHIBIT 10.2
FIRST AMENDMENT TO SERIES 1996-1 SUPPLEMENT TO
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
This First Amendment to Series 1996-1 Supplement to Amended and
Restated Pooling and Servicing Agreement (this "Amendment") made as of April 27,
1999, among H&T Receivable Funding Corporation, a Delaware corporation
("Transferor"), as Transferor, Bally Total Fitness Corporation, a Delaware
corporation (in such capacity, together with any successor in such capacity,
"Servicer" or sometimes referred to herein as "BTFC"), as Servicer, and Chase
Bank of Texas f/k/a Texas Commerce Bank National Association, a national banking
association organized under the laws of the United States ("Trustee"), as
Trustee, on behalf of the 1996-1 Certificateholders.
WHEREAS, Transferor, Servicer and Trustee are a party to that certain
Amended and Restated Pooling and Servicing Agreement (the "Pooling Agreement"),
dated as of December 16, 1996;
WHEREAS, Transferor, Servicer and Trustee are a party to that certain
Series 1996-1 Supplement to the Pooling Agreement (the "Series 1996
Supplement"), dated as of December 16, 1996, pursuant to which the Series 1996-1
Certificates (as defined in the Series 1996 Supplement) were issued;
WHEREAS, the parties hereto desire to amend the Series 1996 Supplement
to extend the amortization period commencement date of the Series 1996-1
Certificates as well as make various other modifications to the Supplement as
provided herein;
WHEREAS, these recitals shall be construed as part of this Amendment
and capitalized terms used but not otherwise defined in this Amendment shall
have the meanings ascribed to them in the Series 1996 Supplement;
WHEREAS, pursuant to Section 13.1(b) of the Pooling Agreement, the
amendments provided for herein require the consent of all of the related
Certificateholders.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Amendment.
1A. The definition of "Amortization Period Commencement Date" in the
Series 1996 Supplement is hereby amended by deleting the term "1999" and
replacing such term with the term "2001."
1B. The definition of "Class A-2 Certificate Rate" in the Series 1996
Supplement is hereby amended by deleting the term "2.57%" in each place such
term appears and replacing such term with the term "3.01%" which shall be
effective from and after May 17, 1999.
1C. The definitions of "Expected Series 1996-1 Termination Date" in
the Series 1996 Supplement, the forms of the Series 1996-1 Certificates attached
as Exhibits A-1 and A-2 to the Series 1996 Supplement and all outstanding Series
1996-1 Certificates are hereby amended by deleting the term "2002" and replacing
such term with the term "2004."
1D. The definition of "Interest Rate Cap" in the Series 1996
Supplement is hereby amended to read "that certain agreement dated December 16
1996 between the Transferor and the Interest Rate Cap Provider, obtained by the
Transferor for the benefit of the Series 1996-1 Certificateholders and naming
the Trustee as the party entitled to receive payments made thereunder as the
same may be amended by the amendment dated April __, 1999 by and among the same
parties, pursuant to which the Interest Rate Cap Provider will be obligated to
pay to the Trust an amount equal to all interest accrued on the Class A-2
Certificates which is allocable to LIBOR being in excess of 3.01%, which certain
agreement will have a termination date of August 15, 2004."
1E. The definition of "Interest Rate Cap Provider" shall mean The
Chase Manhattan Bank or such other provider which will provide the Class A-2
Certificates a rating of at least BBB+ by each respective Rating Agency.
1F. The reference to "Section 8" contained in the definition of
"Series 1996-1 Pay-Out Event" is hereby amended to read "Section 7".
1G. Schedule I referred to in the "Class A-1 Make Whole Payment"
definition and the "Weighted Average Life to Maturity" definition shall now be
Schedule I attached to this Amendment instead of Schedule 1 attached to the
Series 1996 Supplement.
1H. The references to the "August, 1999 Distribution Date" contained
in the forms of the Series 1996-1 Certificates attached as Exhibits A-1 and A-2
to the Series 1996 Supplement and in all outstanding Series 1996-1 Certificates
are hereby amended to read "August, 2001 Distribution Date".
1J. The reference to "60,000,000" contained in Section 7(k) of the
Series 1996 Supplement and the reference to "$70,000,000" contained in Section
4.5(d) of said Supplement are hereby amended to read "125,000,000" and
"$140,000,000," respectively.
2. Conditions to Effectiveness of this Amendment. This Amendment
shall become effective on the date each of the following conditions precedent is
satisfied:
2A. Transferor, Servicer, and Trustee shall have executed and
delivered this Amendment.
2B. Each of the Class A-1 Certificateholders and the Class A-2
Certificateholders shall have consented to this Amendment.
2C. This Amendment shall be provided to each Rating Agency and each
Rating Agency shall confirm its rating of the Certificates.
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2D. The Rate Cap Provider shall provide such interest rate cap
agreement(s) as are appropriate to provide the Class A-2 Certificates a rating
of at least BBB+ by each respective Rating Agency; provided, however, to the
extent the Rate Cap Agreement dated December 16, 1996 provided by The Chase
Manhattan Bank and accepted and agreed to by H&T Receivables Funding Corporation
and assigned to Texas Commerce Bank, National Association, as Trustee continues
to be utilized the definition of "Termination Date" contained therein shall be
amended, if necessary, to provide the above-described minimum rating on the
Class A-2 Certificates.
2E. Counsel to the Transferor will provide an opinion that this
Amendment is in compliance with the Pooling Agreement and the Series 1996
Supplement.
3. Miscellaneous.
3A. Representations. Each of the representations and warranties of
the Transferor set forth in Section 2.3 of the Pooling Agreement is hereby
restated and reaffirmed by the Transferor as of the effective date of this
Amendment as if made herein by the Transferor on said effective date, and each
of the representations and warranties of the Servicer set forth in Section 3.3
of the Pooling Agreement is hereby restated and reaffirmed by the Servicer as of
the said effective date as if made herein by the Servicer on said effective
date. The Transferor and the Servicer hereby agree that, for purposes of Section
7(a) of the Series 1996-1 Supplement, the representations and warranties made
under this Section 3A shall be deemed to have been made in said Supplement. BTFC
and the Transferor represent and warrant that (i) no material adverse change has
occurred with respect to their businesses since BTFC's financial statements
dated December 31, 1998, (ii) no material change has occurred with respect to
the Receivables' performance since the last monthly Settlement Statement and
(iii) no Trust Pay-Out-Event or Series 1996-1 Pay-Out-Event or incipient Trust
Pay-Out-Event or Series 1996-1 Pay-Out-Event exists under the Pooling Agreement
or the 1996 Supplement as the same are both amended, modified and supplemented
under this Agreement.
3B. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
3C. Captions. The various captions in this Amendment are provided
solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Amendment.
3D. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
3E. Severability of Provisions. If any one or more of the provisions
or terms of this Amendment shall be held invalid for any reason whatsoever, then
such provisions or terms shall
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be deemed severable from the remaining provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other provisions of
this Amendment. If the invalidity of any part, provision, representation or
warranty of this Amendment shall deprive any party of the economic benefit
intended to be conferred by this Amendment, the parties shall negotiate in
good-faith to develop a structure the economic effect of which is as nearly as
possible the same as the economic effect of this Amendment without regard to
such invalidity.
3F. Successors and Assigns. This Amendment shall be binding upon,
and shall inure to the benefit of, Transferor, the Servicer, the Trustee, and
their respective successors and assigns.
3G. References. Any reference to the Series 1996 Supplement
contained in any notice, request, certificate, or other document executed
concurrently with or after the execution and delivery of this Amendment shall be
deemed to include this Amendment unless the context shall otherwise require.
3H. Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do not serve to
effect a novation as to the Series 1996 Supplement or the Pooling Agreement. The
parties hereto ratify and reaffirm the Pooling Agreement and the Series 1996
Supplement, as amended hereby, shall remain in full force and effect.
3I. Entire Agreement. This Amendment constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all other understandings, oral or written, with respect to the
subject matter hereof.
* * * * * *
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IN WITNESS WHEREOF, Transferor, the Servicer and the Trustee have
caused this Amendment to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
H&T RECEIVABLE FUNDING CORPORATION,
as Transferor
By: /s/ John W. Dwyer
Printed Name: John W. Dwyer
Title: _____________________________________
BALLY TOTAL FITNESS CORPORATION,
as Servicer
By: /s/ John W. Dwyer
Printed Name: John W. Dwyer
Title: _____________________________________
CHASE BANK OF TEXAS f/k/a TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, not individually
but solely as Trustee
By: /s/ Leah Foshee
Printed Name: Leah Foshee
Title: Vice President
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