INDEX NO. 652055/2010 FILED: NEW YORK COUNTY CLERK 10/10/2017 10:34 PM NYSCEF DOC. NO. 1170 RECEIVED NYSCEF: 10/10/2017 Mill Financial, LLC 6350 Rolling Mill Place, Suite 102 Springfield, Virginia 22152 May 16, 2011 Booth Creek Management Col]Joration and the other Guarantors referenced herein 950 Red Sandstone Road, Unit 43 Vail, Colorado 81657 Re: t Forbearance Agreement - Mill Financial, LLC v. George N. Gillett, Jr., et al Ladies and Gentlemen: Reference is made to (A) that certain Tenn Loan Agreement, dated as of January 25, 2008 (as amended, modified or supplemented to the date hereof, the "Term Loan Agreement"), between Gillett Football, LLC (the "Borrower") and Mill Financial, LLC (the "Lender") and (B) each Guaranty (Unlimited) (collectively, the "Guaranties") executed by (i) George N. Gillett, Jr. ("Gillett"), (ii) Booth Creek Management Corporati01,1, (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, (xii) Gilvest GP, LLC, and (xiii) Gillett Summit, LLC (the entities listed in the foregoing clauses (ii) through (xiii), the "Entity Guarantors" and, together with Gillett, the "Guarantors") for the benefit of the Lender. Capitalized terms used in this letter agreement (this "Agreement") and not otherwise defined herein shall have the meanings ascribed to them in the Term Loan Agreement. 1. The Lender has commenced that certain action against the Guarantors in the Supreme Court of the State of New York, County of New York (the "Court"), identified as Index No. 652055/2010 in respect of their respective obligations under the Guaranties (the "Guarantor Action"). 2. Until the earlier of four months from the date hereof or the occurrence and contiuance of a Termination Event (as defined below), the Lender shall forbear from seeking an entry of judgment against the Guarantors in connection with the Guarantor Action or otherwise, including, without limitation, any submission or entry of the Confession of Judgment (as defined below). For the avoidance of doubt, the foregoing forbearance shall not prohibit the Lender from amending the Guarantor Action to join additional parties who are not affiliated with or related to any of the Guarantors as defendants to the Guarantor Action. Subject to the terms set forth herein, the Lender is hereby expressly reserving all rights, powers and remedies provided for in NY:1331392.ll ~~! DX0067-0001 MILL00027414
FILED: NEW YORK COUNTY CLERK 10/10/2017 10:34 PM INDEX NO. 652055/2010 NYSCEF DOC. NO. 1170 RECEIVED NYSCEF: 10/10/2017 the Term Loan Agreement, the Guaranties, the other Loan Documents at law or in equity, whether now or hereafter existing. 3. The effectiveness of this Agreement is conditioned upon the satisfaction of the following conditions precedent: (a) the execution and delivery of counterparts of this Agreement, duly executed by the Guarantors and the Lender; and (b) receipt by the Lender of the Confession of Judgment (as defined below) executed by each Entity Guarantor. 4. The occurrence of any of the following shall constitute a "Termination Event" hereunder: (a) the occurrence of any breach or default by the Guarantors of any of the provisions of this Agreement; (b) the failure by the Borrower after the date hereof to make an interest payment to the Lender on the last day of each month in the amount of $250,000, and such failure shall continue unremedied for a period of five Business Days; (c) (i) any Guarantor commences, with respect to itself (A) any case or proceeding before any court or other governmental authority relating to bankruptcy, reorganiz.ation, insolvency, liquidation, receivership, dissolution, winding~up or relief of debtors or (B) any general assignment for the benefit of creditors, marshalling of assets for creditors or similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case undertaken lulder any U.S. Federal, state or foreign law, including the United States Federal Bankruptcy Reform Act of 1978 (11 U.S.C. 101, et seq.), (ii) any Guarantor takes any action to effectuate or authorize any of the foregoing under clause ( c )(i) above, (iii) any case or proceeding of the type described in clause (c)(i) above is commenced or filed against any Guarantor and (A) such case or proceeding shall not be dismissed within 60 days after commencement thereof or (B) an order for relief (or similar order under non-u.s. law) is ordered in such case or proceeding, or (iv) any Guarantor acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator or similar Person for itself; ( d) any creditor of any Guarantor pursues or exercises any rights or remedies against such Guarantor in respect of any indebtedness in excess of $5,000,000; (e) We lls Fargo pursues or exercises any rights or remedies against the Lender in respect of any indebtedness incurred by the Lender in connection with the Term Loan Agreement; or Agreement. (t) the expiration of the period of four months after the date of this 5. Each of the Guarantors agrees that it shall (a) promptly notify the Lender of any material developments, and promptly upon receipt thereof, provide to the Lender copies 2 DX0067-0002 ~~ MILL00027 415
FILED: NEW YORK COUNTY CLERK 10/10/2017 10:34 PM NYSCEF DOC. NO. 1170 INDEX NO. 652055/2010 RECEIVED NYSCEF: 10/10/2017 of all correspondence, notices, requests or other written material, whether in physical or electronic form, received or distributed by it, in each case, relating to material developments, of KOP Investment, LLC and any of its subsidiaries or the investments of Gillett or Tom Hicks in any of the foregoing and (b) except as has been disclosed to the Lender.prior to the date hereof, not enter into any agreement or consent with respect to KOP Investment, LLC and any of its subsidiaries or the investments of Gillett or Tom Hicks in any of the foregoing without the prior written consent of the Lender. 6. Simultaneously with the execution and delivery of this Agreement, the Borrower and each Entity Guarantor shall execute and deliver to the Lender an Affidavit of Confession of Judgment and Judgment by Confession in substantially the form attached hereto as Exhibit A hereto (the "Confession of Judgment"). Upon the occurrence of a Termination Event, the Lender shall have the right to submit the Confession of Judgment to the clerk of the Supreme Court of the State of New York, County of New York, and to enter a confession of judgment against the Entity Guarantors, in favor of the Lender, in the amount set forth in the Confession of Judgment. Neither the delivery of the Confession of Judgment nor the presentation of the Confession of Judgment on a suit upon the Guaranties, including, without limitation, the Guarantor Action, shall in any way serve as a waiver or relinquishment of any right the Lender tmay have to seek payment of the entire amount of the Guaranteed Debt (as defined in each of the Guaranties) in accordance with the terms of the Guaranties, the entire Loan in accordance with the terms of the Term Loan Agreement or to pursue any remedy or exercise any right under any of the Loan Documents. As set forth in the Term Loan Agreement, the Borrower and Guarantors are liable for the attorneys' fees incurred by the Lender in conjunction with the origination and administration of the Term Loan Agreement. As of the date of this Agreement, the outstanding balance of such attorneys' fees (as invoiced by the Mayer Brown LLP law firm) is $630,002.05. This unpaid fee balance has been included in the Confession of Judgment. 7. No Defenses; Waiver. The Borrower and Guarantors agree and acknowledge that they have no claims, defenses, offsets, recoupments or counterclaims to the enforcement of any of their obligations to the Lender under the Loan Documents. Any claims, defenses, setoffs, or counterclaims, if any, held by the Borrower or Guarantors, are hereby forever waived, released, and discharged, whether known or unknown and however arising. Each Guarantor and the Borrower, for itself, its respective officers, directors, shareholders, members and managers, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each hereby releases and discharges the Lender, its agents, officers, directors, attorneys, employees, affiliates, successors and assigns, jointly and severajly; from any and all manner of action and actions, cause or causes of action, suits, debts, sums of money, accounts, covenants, contracts, controversies, obligations, liabilities, agreements, promises, expenses, damages, claims or demand of every nature and kind whatsoever, if any, at law or in equity, whether now accrued or hereafter maturing and whether known or unknown that the Borrower or any Guarantor now has or hereafter can, shall, or may have by reason of any matter, cause or thing relating to or arising out of the Loan or the Guaranties, induding,.without limitation, those which may arise or could arise by reason of the making, administration, disbursement, documentation, demand for payment, foreclosure or modification of the Loan. 3 @f DX0067-0003 MILL00027416
FILED: NEW YORK COUNTY CLERK 10/10/2017 10:34 PM NYSCEF DOC. NO. 1170 INDEX NO. 652055/2010 RECEIVED NYSCEF: 10/10/2017 8. Ratification of Loan. The Borrower and Guarantors ratify, approve and consent to all the disbursements of the Loan made by the Lender or its predecessor(s) and to all action or inaction of the Lender and its predecessor(s) with respect to the Loan and the Guaranties, including but not limited to the administering, disbursing, handling, servicing, securing, demanding, enforcing and collecting of the Loan, and the Borrower and Guarantors acknowledge that the Lender and its predecessor(s) have fully complied with the terms and conditions of the Loan Documents. The Borrower and Guarantors acknowledge and agree that the right to any further advances on the Loan has expired and is terminated. The Borrower and Guarantors hereby affirm and confirm that their obligations under the Loan Documents are in full force and effect, are valid and binding obligations of the Borrower and Guarantors, and are enforceable in accordance with their respective terms. The Borrower and Guarantors acknowledge that the Loan Documents remain unmodified and hereby restate and confirm the covenants, representations, agreements, grants and warranties in the Loan Documents. 9. No Waiver or Implication. The Borrower and Guarantors agree that nothing in this Agreement shall constitute a waiver by the Lender of any default, whether knovvn or unknown, which now or may hereafter exist under the Loan Documents. The Borrower and Guarantors agree that no action, inaction or agreement which has occurred or been granted thereunder, prior hereto or hereafter or otherwise with respect to the nonpayment or nonperformance of the Loan Documents shall require or imply any future forbearance, extension, indulgence, waiver, consent or agreement by the Lender except as set forth specifically in this Agreement. The Borrower and Guarantors hereby acknowledge and agree that the Lender has made no agreement, and is in no way obligated, to grant any future forbearance, extension, indulgence, waiver or consent or enter into any further agreement or modification with respect to. any of the Loan Documents, the indebtedness evidenced by, secured by or relating to the Loan Documents, or any other matter relating thereto. 10.. All of the above terms and conditions have been freely bargained for and are all supported by reasonable and adequate consideration and the provisions herein are material inducements for the Lender entering into this Agreement. 11. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE nm APPLICATION OF LAWS OTHER THAN THOSE OF TIIE STATE OF NEW YORK. 12. This agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Any signature delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto. [Signature Pages Follow] 4 (]f!2 DX0067-0004 MILL00027417
FILED: NEW YORK COUNTY CLERK 10/10/2017 10:34 PM INDEX NO. 652055/2010 NYSCEF DOC. NO. 1170 RECEIVED NYSCEF: 10/10/2017 Very truly yours, MILL FINANCIAL, LLC, as Lender DX0067-0005 &c'( MILL00027418
FILED: NEW YORK COUNTY CLERK 10/10/2017 10:34 PM INDEX NO. 652055/2010 NYSCEF DOC. NO. 1170 RECEIVED NYSCEF: 10/10/2017 Aclmow].edged and Agi-eed: in his ifidividual capacity, and as President of: BOOTH CREEK MANAGEMENT CORPORATION, and as President of: BOOTH CREEK INC., and as President of: FOOTBALL INVESTMENTS, LLC, and as the Managing General Partner of: BOOTII CREEK PAR1NERS LIMITED II, L.L.L.P., and as the Class A Member of each of: GILLETT COLEMAN, LLC GILLETT GEMS, LLC GILLETT WHEAT LLC, GILLETT SUMMIT LLC, SPRADDLE CREEK AlITO 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: GIL VEST GP, LLC N~ as trustee of GNG JR SKI 2007 TRUST, as the Class A Member of: GILLETT FAMILY SKI, LLC DX0067-0006 QcD MILL00027419