FILED: NEW YORK COUNTY CLERK 10/10/ :26 PM INDEX NO /2010 NYSCEF DOC. NO. 778 RECEIVED NYSCEF: 10/10/2017

Transcription

1 JX MILL EXECUTION COPY EIGHTH AMENDMENT (Term Loan Agreement) This EIGHTH AMENDMENT dated as of July 15, 2010 (this "Amendment") is to the Term Loan Agreement dated as of January 25, 2008 (as heretofore amended, the "Loan Agreement") between GILLETT FOOTBALL, LLC (the "Borrower") and MILL FINANCIAL, LLC (the "Lender"). Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Loan Agreement. WHEREAS, the parties hereto desire to amend the Loan Agreement in certain respects; NOW, THEREFORE, the parties hereto agree as follows: SECTION 1 Amendment. On the Effective Date (as defined in Section 3), the definition of "Maturity Date" in Section 1.1 of the Loan Agreement shall be amended as follows: -Maturity Date" means the earliest of (a) August 13, 2010, (b) the date the Loan is paid in full or (c) the date the Loan becomes immediately due and payable pursuant to Section 6.2. SECTION 2 Representations and Warranties. The Borrower represents and warrants to the Lender that, after giving effect to the effectiveness hereof, (a) each representation and warranty set forth in Section 4 of the Loan Agreement is true and correct as of the Effective Date, with the same effect as if made on such date (excluding any representation or warranty that speaks as of a particular earlier date, in which case such representation or warranty was true and correct as of such earlier date); (b) no Default or Unmatured Default exists; (c) the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations under the Loan Agreement as amended hereby (the "Amended Loan Agreement"): (i) are within the Borrower's powers, (ii) have been duly authorized by all necessary limited liability company action on the Borrower's part, and (iii) do not and will not (A) require any consent or approval of any governmental agency or authority, (B) conflict with or contravene (1) any provision of law, (2) the organizational documents of the Borrower or (3) any agreement, indenture, instrument or other document, or any judgment, order or decree, that is binding upon the Borrower or any of its properties or (C) require, or result in, the creation or imposition of any Lien on any asset of the Borrower (other than Liens in favor of the Lender); and (d) the Amendment and the Amended Loan Agreement are legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to general principles of equity. SECTION 3 Conditions to Effectiveness. This Amendment shall become effective on the date (the "Effective Date") that the Lender has received all of the following: 3.1 A confirmation substantially in the form of Exhibit A signed by each Guarantor other than Gillett Family Ski, LLC

2 JX MILL A letter agreement substantially in the form of Exhibit B signed by Wachovia, as administrative agent under the Gillett Facility, and each Guarantor other than Gillett Family Ski, LLC. SECTION 4 Capitalization and Continuation of Deferred Extension Fees. 4.1 The parties hereto agree that payment of the Deferred Extension Fee, as defined in the Second Amendment to the Loan Agreement dated as of July 27, 2009, shall be deferred until the Maturity Date, provided that on July 27, 2010, the Deferred Extension Fee, together with all deferred interest accrued thereon through such date, will be capitalized and added to the principal of the Loan. 4.2 In connection with the Sixth Amendment to the Loan Agreement dated as of March 19, 2010 (the "Sixth Amendment"), the Lender agreed to defer the payment of the Sixth Amendment Extension Fee (as defined in the Sixth Amendment) until the Maturity Date (as amended by the Sixth Amendment); the Lender has agreed to further defer the payment of the Sixth Amendment Extension Fee until the Maturity Date (as amended hereby). In consideration of such additional deferral, the Borrower confirms and agrees that it will continue to pay interest on the unpaid amount of the Sixth Amendment Extension Fee for the period from the Effective Date to the Maturity Date (as amended hereby) at the rate of 19% per annum. All such interest shall be due and payable on the Maturity Date (as amended hereby). 4.3 In connection with the Seventh Amendment to the Loan Agreement dated as of June 30, 2010 (the "Seventh Amendment"), pursuant to Section 4 thereof, the Borrower requested and the Lender agreed, that the Borrower would pay an extension fee in the amount of $500,000, payment of which would be deferred until July 30, 2010 (the "Seventh Amendment Extension Fee"); the Lender has agreed to further defer the payment of the Seventh Amendment Extension Fee until the Maturity Date (as amended hereby). In consideration of such additional deferral, the Borrower confirms and agrees that it will continue to pay interest on the unpaid amount of the Seventh Amendment Extension Fee for the period from the Effective Date to the Maturity Date (as amended hereby) at the rate of 19% per annum. All such interest shall be due and payable on the Maturity Date (as amended hereby). SECTION 5 Confirmation. The parties hereto acknowledge and agree that the aggregate unpaid principal amount of the Loan on July 15, 2010 is $89,788, The aggregate amount payable by the Borrower under the Loan Documents as of July 15, 2010 is as follows: (a) $89,788, of principal, which accrues interest at 19% per annum (14% of which is deferred interest (which shall be capitalized and added to the principal of the Loan annually on the anniversary of the original closing date of the Loan Agreement (January 25)) and 5% of which is cash interest); (b) the $2,500,000 Deferred Extension Fee (as described above), which Deferred Extension Fee shall continue to bear interest at 19% per annum until July 27, 2010, whereupon such Deferred Extension Fee together with all deferred interest accrued thereon through such date will be capitalized and added to the principal of the Loan; (c) the $5,000,000 Sixth Amendment Extension Fee (as described above), which Sixth Amendment Extension Fee shall continue to bear interest at 19% per annum; (d) the $500,000 Seventh Amendment Extension Fee (as described above), which Seventh Amendment Extension Fee shall continue to bear interest at 19% per annum; and (e) the $1,050,000 exit fee pursuant to Section 2.5 of the

3 JX MILL Loan Agreement (as amended by the Seventh Amendment). The parties hereto further acknowledge and agree that as of the date hereof, Exhibit C sets forth a true and correct computation of the total amount due under the Loan Agreement on the Maturity Date (as amended hereby), excluding any of the Lender's costs and expenses (including reasonable attorneys' fees, costs, expenses and charges) owing pursuant to the Loan Agreement. SECTION 6 Interest Reserve Account. The Borrower confirms and agrees that it will continue to deposit into the Interest Reserve Account, in immediately available funds on or before the last day of each calendar month, an amount equal to the portion of the cash interest that has accrued on the Loan during such month pursuant to Section 2.2(a) of the Loan Agreement. The Borrower and the Lender agree that the failure of the Borrower to deposit such funds into the Interest Reserve Account within two Business Days after the last day of any calendar month shall result in an immediate Default under Section 6.1(a)(ii) of the Loan Agreement. SECTION 7 Post-Closing Deliveries. 7.1 Confirmation. The Borrower covenants and agrees that on or before August 11, 2010, it will deliver (a) a confirmation substantially in the form of Exhibit A signed by Gillett Family Ski, LLC and each Person party to a Negative Pledge and (b) a letter agreement substantially in the form of Exhibit B signed by Gillett Family Ski, LLC. The Borrower and the Lender agree that the failure of the Borrower to deliver such confirmation and letter agreement on or before August 11, 2010 shall result in an immediate Default under Section 6.1(b) of the Loan Agreement. 7.2 Deal Documents & Legal Fees. The Borrower covenants and agrees that on or before August 11, 2010, (a) it will deliver true and correct copies of each of the Gillett Facility and Liverpool Facility, together with all agreements and other documents, including collateral documents, delivered thereunder or in connection therewith on or prior to the Effective Date not previously delivered to the Lender, in each case as in effect on the Effective Date; and (b) it will remit payment of all reasonable costs and expenses (including reasonable attorneys' fees and charges) incurred by the Lender in connection with the preparation, execution and delivery of this Amendment, to the extent then billed. The Borrower and the Lender agree that the failure of the Borrower to deliver such documents and pay such fees on or before August 11, 2010 shall result in an immediate Default under Section 6.1 of the Loan Agreement. SECTION 8 Entire Agreement Ratification. This Amendment embodies the entire agreement of the parties and supersedes any prior agreements or understandings with respect to the subject matter hereof. Except to the extent expressly set forth herein, all of the terms and conditions of the Loan Agreement and the other Loan Documents shall remain unchanged and in full force and effect. SECTION 9 Reference in Other Documents. After the date of the effectiveness hereof, references to the Loan Agreement in any other agreement or document (including any other Loan Document) shall be deemed to be a reference to the Amended Loan Agreement

4 JX MILL SECTION 10 Miscellaneous. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. The provisions of Sections 1.2, 9.2, 9.3, 9.4, 9.7, 9.8, 9.9, 9.10 and 9.11 of the Loan Agreement are incorporated herein by reference, mutatis mutandis. [Signature pages follow]

5 JX MILL IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written. GILLETT~FOOTBALL, LL as Borrower By: Name: Geo w N. Gillett, Jr. Title: Class A Member S-1 Eighth Amendment to Term Loan Agreement

6 MILL FINANCIAL, LLC, as Lender Name: Ronald '. Devine Title: Manager S-2 Eighth Amendment In rqr m tntin Agreement JX MILL

7 JX M I LL EXHIBIT A FORM OF CONFIRMATION Dated as of July 15, 2010 To: Mill Financial, LLC, as lender under the Loan Agreement referred to below Please refer to: (a) the Term Loan Agreement dated as of January 25, 2008 (as heretofore amended, the "Loan Agreement") between Gillett Football, LLC (the "Borrower") and Mill Financial, LLC (the "Lender"); (b) the Eighth Amendment dated as of the date hereof to the Loan Agreement (the "Eighth Amendment"); (c) the Membership Interest Pledge Agreement dated as of January 25, 2008 between the Borrower and the Lender; (d) the Membership Interest Pledge Agreement dated as of January 25, 2008 between Football Investments, LLC and the Lender; (e) each Guaranty (Unlimited) dated as of January 25, 2008 executed in favor of the Lender by (i) George N. Gillett, Jr., (ii) Booth Creek Management Corporation, (iii) Gillett Family Ski, LLC, (iv) Booth Creek Partners Limited II, L.L.L.P., (v) Gillett Coleman, LLC, (vi) Gillett Wheat LLC, (vii) Football Investments, LLC, (viii) Gillett GEMS, LLC, (ix) Booth Creek Inc., (x) Spraddle Creek Auto Investment, LLC, (xi) Spraddle Creek Automotive Real Estate, LLC and (xii) Gilvest GP, LLC; (f) the Guaranty (Unlimited) dated as of June 5, 2008 executed in favor of the Lender by Gillett Summit, LLC; and (g) each of the Negative Pledge Agreements dated as of February 8, 2008 executed in favor of the Lender with respect to ownership interests in (i) BC Ranch, LLC, (ii) Gillett Family Limited Partnership (Quebec), (iii) Grand Targhee Resort, LLC, (iv) Spraddle Creek Auto Sales, LLC and (v) Spraddle Creek Auto Sales Two, LLC; Each document referred to in items (c) through (g) above is called a "Credit Document". Capitalized terms used but not defined herein shall have the meanings set forth in the Loan Agreement as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment and the Eighth Amendment thereto (as so amended, the "Amended Loan

8 JX MILL Agreement"), and the rules of interpretation set forth in Section 1.2 of the Amended Loan Agreement shall apply as if set forth in full herein. Each of the undersigned confirms to the Lender that each Credit Document to which such undersigned is a party continues in full force and effect on the date hereof after giving effect to the Eighth Amendment and is the legal, valid and binding obligation of such undersigned, enforceable against such undersigned in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to general principles of equity. Each of the undersigned further confirms to the Lender that (i) the obligations and liabilities guaranteed under each Gillett Guaranty and secured under each other Credit Document, in each case to which such undersigned is a party, include all obligations and liabilities of the Borrower under the Amended Loan Agreement and (ii) each reference in each Credit Document to which such undersigned is a party to the "Term Loan Agreement" or similar terms shall, on and after the date hereof, be deemed to be a reference to the Amended Loan Agreement. Each of the undersigned acknowledges and confirms that the Lender has complied with all of its obligations and duties under each Credit Document to which such undersigned is a party through the date hereof and that, accordingly, none of the undersigned has any claim against the Lender in any manner relating thereto. [Signature pages follow]

9 JX M I LL IN WITNESS WHEREOF, the undersigned have executed and delivered this Confirmation as of the date first above written. GEORGE N. GILLETT, JR, in his individual capacity, and as President of: BOOTH CREEK MANAGEMENT CORPORATION, and as President of: BOOTH CREEK INC., and as the President of GILLETT FAMILY G.P. (QUEBEC) Inc. as: sole member of GILVEST GP, LLC, general partner of GILVEST II, LLLP, and as the Managing General Partner of: BOOTH CREEK PARTNERS LIMITED II, L.L.L.P., and as the Managing General Partner of: BOOTH CREEK PARTNERS LIMITED II, L.L.L.P., as the sole member of GLT HOLDINGS, LLC, and as the Class A Member of each of: GILLETT COLEMAN, LLC GILLETT GEMS, LLC GILLETT WHEAT LLC, GILLETT SUMMIT LLC, GILLETT FOOTBALL, LLC, SPRADDLE CREEK AUTO INVESTMENT, LLC, and as the Class A Member of SPRADDLE CREEK AUTO INVESTMENT, LLC, as the Manager of SPRADDLE CREEK AUTOMOTIVE REAL ESTATE, LLC, and as the sole Member of: GILVEST GP, LLC Signature page to Confirmation (Eighth Amendment)

10 JX MILL NORMAN WAITE, JR., as trustee of GNG JR SKI 2007 TRUST, as the Class A Member of: GILLETT FAMILY SKI, LLC Signature page to Confirmation (Eighth Amendment)

11 JX M I LL JEFFREY J. JOYCE as Executive Vice President and Treasurer of FOOTBALL INVESTMENTS, LLC Signature page to Confirmation (Eighth Amendment)

12 JX MILL ALEXANDER F. GILLETT FOSTER L. GILLETT GEORGE N. GILLETT, III ROSE F. GILLETT Signature page to Confirmation (Eighth Amendment)

13 JX MILL EXHIBIT B FORM OF LETTER AGREEMENT (INTERCREDITOR AGREEMENT) [See attached.]

14 JX MILL Mill Financial, LLC do Springfield Financial Company, LLC 6350 Rolling Mill Place, Suite 102 Springfield, Virginia Attention: Ronald C. Devine Each of the Obligors under the Intercreditor Agreement do Booth Creek Management Corporation 950 Red Sandstone Road, Unit 43 Vail, Colorado Attention: George N. Gillett, Jr. Wells Fargo Bank, National Association Specialty Finance Group 401 S. Tryon Street, 19th Floor NC1111 Charlotte, North Carolina July 15, 2010 Re: Consent under Intercreditor Agreement to Extensions ofmaturities Gentlemen: 1. Please refer to the Intercreditor Agreement dated as of January 25, 2008, among Wells Fargo Bank, National Association, successor to Wachovia Bank, National Association, as administrative agent for the Wachovia Lenders ("Agent"), Mill Financial, LLC ("Mill"), the various Group One Obligors party thereto, the various Group Two Obligors party thereto, and George N. Gillett, Jr. (that intercreditor agreement, as amended, restated, supplemented, or otherwise modified, the "Intercreditor Agreement"). Defined terms used but not defined in this letter agreement are as defined in the Intercreditor Agreement. 2. Section 3.2 of the Intercreditor Agreement provides that Mill may extend the final maturity of the Mill Debt beyond the maturity date set forth in the Mill Debt Documents in effect on the date of the Intercreditor Agreement with the prior consent of Agent (such consent not to be unreasonably withheld or delayed). Agent previously has consented to an extension of the final maturity of the Mill Debt to July 30, Agent hereby (1) consents to the extension of the final maturity of the Mill Debt to a date not later than August 13, 2010 and (2) waives any default under the Intercreditor Agreement that could arise, absent this letter agreement, solely as a direct result of such extension of the final maturity of the Mill Debt. The effectiveness of the consent and waiver granted under this section with respect to any such extension of the final maturity of the Mill Debt is subject to the condition that Mill has provided Agent a copy of the final version of the applicable amendment to the Mill Loan Agreement. 4. The terms of the Intercreditor Agreement remain unmodified and in full force and

15 JX M I LL effect. 5. The laws of the State of New York, without giving effect to its principles of conflicts of law, govern all matters arising out of this letter agreement. 6. This letter agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns. 7. This letter agreement may be executed in one or more counterparts, each of which when so executed will be deemed to be an original, but all of which when taken together will constitute one and the same instrument. A party will be deemed to have agreed to and accepted this letter agreement as of the date of this letter agreement upon that party's delivery of an executed counterpart to this letter agreement. [Remainder of page intentionally left blank]

16 JX MILL If this letter agreement correctly reflects the terms agreed by Agent and Mill, please sign a copy of this letter agreement in the space provided below and return it to us. Very truly yours, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent By: Name: Title: Consent

17 JX M I LL MILL FINANCIAL, LLC By: Name: Ronald C. Devine Title: Manager Consent

18 JX M I LL OBLIGORS: GEORGE N. GILLETT, JR., in his individual capacity as an Obligor, and as President of: BOOTH CREEK MANAGEMENT CORPORATION, as an Obligor, and as President of: BOOTH CREEK INC., as an Obligor and as the Managing General Partner of: BOOTH CREEK PARTNERS LIMITED II, L.L.L.P., as an Obligor and as the Class A Member of each of: GILLETT COLEMAN, LLC GILLETT GEMS, LLC GILLETT WHEAT LLC, GILLETT SUMMIT LLC, each as an Obligor, GILLETT FOOTBALL, LLC, as the Company, SPRADDLE CREEK AUTO INVESTMENT, LLC, as an Obligor and as the Manager of: SPRADDLE CREEK AUTOMOTIVE REAL ESTATE, LLC, as an Obligor, and as the sole Member of: GILVEST GP, LLC, as an Obligor NORMAN WAITE, JR., as trustee of GNG JR SKI 2007 TRUST, as the Class A Member of: GILLETT FAMILY SKI, LLC, as an Obligor Consent

19 JX M I LL EXHIBIT C LOAN SCHEDULE [See attached.]

20 geg N JX Mill Financial LLC and Gillett Football, LLC Eighth Amendment Schedule June 30 thru August 13 Day Balance Cash PIK Daily Cash Balance Daily PIK Balance Exit Fee Deferred Extension Fee Deferred Extension Fee Interest Ending Balance Notes 30* Carried Froward from 6/29/10 1-Jul ** Includes 500,000 Deferred fee mm plus 475,000 interest Capitalized per agreement

21 9e N JX Mill Financial LLC and Gillett Football, LLC Eighth Amendment Schedule June 30 thru August 13 Day Balance Cash PIK Daily Cash Balance Daily PIK Balance Exit Fee Deferred Extension Fee Deferred Extension Fee Interest Ending Balance Aug Notes