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EXHIBIT 10.15
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement"), dated as of
October 29, 1998, is made among the Obligors (as defined below), and FOOTHILL
CAPITAL CORPORATION, a California corporation ("Foothill").
WHEREAS, Borrower and Foothill are parties to that certain Loan
and Security Agreement dated as of even date herewith (as amended, modified,
renewed, extended, or replaced from time to time, the "Loan Agreement"),
pursuant to which Foothill has agreed to make certain financial accommodations
to Borrower;
WHEREAS, each Obligor has made or may make certain loans or
advances from time to time to one or more other Obligors;
WHEREAS, each Obligor has agreed to the subordination of such
indebtedness of such other Obligors to such Obligor, upon the terms and subject
to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
covenants, conditions, representations, and warranties set forth herein and for
other good and valuable consideration, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Loan Agreement. All capitalized terms used
in this Agreement and not otherwise defined herein shall have the meanings
assigned to them in the Loan Agreement.
(b) Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Borrower" means Fitzgeralds Gaming Corporation, a Nevada
corporation.
"Dollars" means and refers to United States of America dollars or
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts in the United
States of America.
"Guarantors" means, individually and collectively, Fitzgeralds
South, Inc., a Nevada corporation, Fitzgeralds Reno, Inc., a Nevada corporation,
Fitzgeralds Incorporated, a Nevada corporation, Fitzgeralds Mississippi, Inc., a
Mississippi corporation, Fitzgeralds Las Vegas, Inc., a Nevada
corporation,Fitzgeralds Black Hawk, Inc., a Nevada corporation, Fitzgeralds
Fremont Experience, a Nevada corporation,
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Fitzgeralds Black Hawk II, Inc., a Colorado corporation, and 000 Xxxx Xxxxxx
Limited Liability Company, a Colorado limited liability company.
"Insolvency Event" has the meaning set forth in Section 3.
"Obligors" means, individually and collectively, Borrower and
Guarantors.
"Senior Debt" means the Obligations and other indebtedness and
liabilities of the Obligors to Foothill under or in connection with the Loan
Agreement and the other Loan Documents, including all unpaid principal of the
Loans, all interest accrued thereon, all fees due under the Loan Agreement and
the other Loan Documents, and all other amounts payable by the Obligors to
Foothill thereunder or in connection therewith, whether now existing or
hereafter arising, and whether due or to become due, absolute or contingent,
liquidated or unliquidated, determined or undetermined.
"Subordinated Debt" means, with respect to each Obligor, all
indebtedness, liabilities, and other obligations of each other Obligor owing to
such Obligor in respect of any and all loans or advances made by such Obligor to
such other Obligor whether now existing or hereafter arising, and whether due or
to become due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, including all fees and all other amounts payable by such other
Obligor to such Obligor under or in connection with any documents or instruments
related thereto.
"Subordinated Debt Payment" means any payment or distribution by
or on behalf of the Obligors, directly or indirectly, of assets of the Obligors
of any kind or character, whether in cash, property, or securities, including on
account of the purchase, redemption, or other acquisition of Subordinated Debt,
as a result of any collection, sale, or other disposition of collateral, or by
setoff, exchange, or in any other manner, for or on account of the Subordinated
Debt.
(c) Interpretation. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section,
subsection, clause, schedule, and exhibit references are to this Agreement
unless otherwise specified. References to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto. References to statutes or regulations are to be construed
as including all statutory and regulatory provisions consolidating, amending, or
replacing the statute or regulation referred to. The captions and headings are
for convenience of reference only and shall not affect the construction of this
Agreement.
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SECTION 2 Subordination to Payment of Senior Debt. As to each
Obligor, all payments on account of the Subordinated Debt shall be subject,
subordinate, and junior, in right of payment and exercise of remedies, to the
extent and in the manner set forth herein, to the prior payment, in full, in
cash or cash equivalents of the Senior Debt.
SECTION 3 Subordination Upon Any Distribution of Assets of the
Obligors. As to each Obligor, in the event of any payment or distribution of
assets of any other Obligor of any kind or character, whether in cash, property,
or securities, upon the dissolution, winding up, or total or partial liquidation
or reorganization, readjustment, arrangement, or similar proceeding relating to
such other Obligor or its property, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership, arrangement, or similar proceedings or
upon an assignment for the benefit of creditors, or upon any other marshaling or
composition of the assets and liabilities of such other Obligor, or otherwise
(such events, collectively, the "Insolvency Events"): (i) all amounts owing on
account of the Senior Debt shall first be paid, in full, in cash, or payment
provided for in cash or in cash equivalents, before any Subordinated Debt
Payment is made; and (ii) to the extent permitted by applicable law, any
Subordinated Debt Payment to which such Obligor would be entitled except for the
provisions hereof, shall be paid or delivered by the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, or other liquidating agent
making such payment or distribution directly to Foothill for application to the
payment of the Senior Debt in accordance with clause (i), after giving effect to
any concurrent payment or distribution or provision therefor to Foothill in
respect of such Senior Debt.
SECTION 4 Payments on Subordinated Debt.
(a) Permitted Payments. So long as no Event of Default has
occurred and is continuing, each Obligor may make, and each other Obligor shall
be entitled to accept and receive, payments on account of the Subordinated Debt
in the ordinary course of business.
(b) No Payment Upon Senior Debt Defaults. Upon the occurrence of
any Event of Default, and until such Event of Default is cured or waived, each
Obligor shall not make, and each other Obligor shall not accept or receive, any
Subordinated Debt Payment.
SECTION 5 Subordination of Remedies. As long as any Senior Debt
shall remain outstanding and unpaid, following the occurrence of any Event of
Default and until such Event of Default is cured or waived, each Obligor shall
not, without the prior written consent of Foothill:
(a) accelerate, make demand, or otherwise make due and payable
prior to the original due date thereof any Subordinated Debt or bring suit or
institute any other actions or proceedings to enforce its rights or interests in
respect of the obligations of any other Obligor owing to such Obligor;
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(b) exercise any rights under or with respect to guaranties of
the Subordinated Debt, if any;
(c) exercise any rights to set-offs and counterclaims in respect
of any indebtedness, liabilities, or obligations of such Obligor to any other
Obligor against any of the Subordinated Debt; or
(d) commence, or cause to be commenced, or join with any creditor
other than Foothill in commencing, any bankruptcy, insolvency, or receivership
proceeding against any other Obligor.
SECTION 6 Payment Over to Foothill. In the event that,
notwithstanding the provisions of Sections 3, 4, and 5, any Subordinated Debt
Payments shall be received in contravention of such Sections 3, 4, and 5 by any
Obligor before all Senior Debt is paid, in full, in cash or cash equivalents,
such Subordinated Debt Payments shall be held in trust for the benefit of
Foothill and shall be paid over or delivered to Foothill for application to the
payment, in full, in cash or cash equivalents of all Senior Debt remaining
unpaid to the extent necessary to give effect to such Sections 3, 4, and 5,
after giving effect to any concurrent payments or distributions to Foothill in
respect of the Senior Debt.
SECTION 7 Authorization to Foothill. If, while any Subordinated
Debt is outstanding, any Insolvency Event shall occur and be continuing with
respect to any other Obligor or its property: (i) Foothill is hereby irrevocably
authorized and empowered (in the name of each Obligor or otherwise), but shall
have no obligation, to demand, xxx for, collect, and receive every payment or
distribution in respect of the Subordinated Debt and give acquittance therefor
and to file claims and proofs of claim and take such other action (including
voting the Subordinated Debt) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of Foothill; and (ii)
each Obligor shall promptly take such action as Foothill reasonably may request
(A) to collect the Subordinated Debt for the account of Foothill and to file
appropriate claims or proofs of claim in respect of the Subordinated Debt, (B)
to execute and deliver to Foothill such powers of attorney, assignments, and
other instruments as it may request to enable it to enforce any and all claims
with respect to the Subordinated Debt, and (C) to collect and receive any and
all Subordinated Debt Payments.
SECTION 8 Certain Agreements of Each Obligor.
(a) No Benefits. Each Obligor understands that there may be
various agreements between Foothill and the other Obligor evidencing and
governing the Senior Debt, and each Obligor acknowledges and agrees that such
agreements are not intended to confer any benefits on such Obligor and that
Foothill shall have no obligation to such Obligor or any other Person to
exercise any rights, enforce any remedies, or take any actions which may be
available to them under such agreements.
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(b) No Interference. Each Obligor acknowledges that each other
Obligor has granted to Foothill a security interest in all of such other
Obligor's assets, and agrees not to interfere with or in any manner oppose a
disposition of any Collateral by Foothill in accordance with applicable law.
(c) Reliance by Foothill. Each Obligor acknowledges and agrees
that Foothill will have relied upon and will continue to rely upon the
subordination provisions provided for herein and the other provisions hereof in
entering into the Loan Documents and making or issuing the Loans thereunder.
(d) Waivers. Except as provided under the Loan Agreement, each
Obligor waives any and all notice of the incurrence of the Senior Debt or any
part thereof and any right to require marshaling of assets.
(e) Obligations of Each Obligor Not Affected. Each Obligor agrees
that at any time and from time to time, without notice to or the consent of such
Obligor, without incurring responsibility to such Obligor, and without impairing
or releasing the subordination provided for herein or otherwise impairing the
rights of Foothill hereunder: (i) the time for any other Obligor's performance
of or compliance with any of its agreements contained in the Loan Documents may
be extended or such performance or compliance may be waived by Foothill; (ii)
the agreements of any other Obligor with respect to the Loan Documents may from
time to time be modified by such other Obligor and Foothill for the purpose of
adding any requirements thereto or changing in any manner the rights and
obligations of such other Obligor or Foothill thereunder; (iii) the manner,
place, or terms for payment of Senior Debt or any portion thereof may be altered
or the terms for payment extended, or the Senior Debt may be renewed in whole or
in part; (iv) the maturity of the Senior Debt may be accelerated in accordance
with the terms of any present or future agreement by any other Obligor and
Foothill; (v) any Collateral may be sold, exchanged, released, or substituted
and any Lien in favor of Foothill may be terminated, subordinated, or fail to be
perfected or become unperfected; (vi) any Person liable in any manner for Senior
Debt may be discharged, released, or substituted; and (vii) all other rights
against the other Obligors, any other Person, or with respect to any Collateral
may be exercised (or Foothill may waive or refrain from exercising such rights).
(f) Rights of Foothill Not to Be Impaired. No right of Foothill
to enforce the subordination provided for herein or to exercise its other rights
hereunder shall at any time in any way be prejudiced or impaired by any act or
failure to act by any Obligor or Foothill hereunder or under or in connection
with the other Loan Documents or by any noncompliance by such other Obligor with
the terms and provisions and covenants herein or in any other Loan Document,
regardless of any knowledge thereof Foothill may have or otherwise be charged
with.
(g) Financial Condition of the Obligors. Except as provided under
the Loan Agreement, each Obligor shall not have any right to require Foothill to
obtain or
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disclose any information with respect to: (i) the financial condition or
character of any other Obligor or the ability of such other Obligor to pay and
perform Senior Debt; (ii) the Senior Debt; (iii) the Collateral or other
security for any or all of the Senior Debt; (iv) the existence or nonexistence
of any guarantees of, or any other subordination agreements with respect to, all
or any part of the Senior Debt; (v) any action or inaction on the part of
Foothill or any other Person; or (vi) any other matter, fact, or occurrence
whatsoever.
(h) Acquisition of Liens or Guaranties. Each Obligor shall not,
without the prior consent of Foothill, acquire any right or interest in or to
any Collateral not owned by such Obligor or accept any guaranties for the
Subordinated Debt.
SECTION 9 Subrogation.
(a) Subrogation. Until the payment and performance in full of all
Senior Debt, each Obligor shall not have, and shall not directly or indirectly
exercise, any rights that it may acquire by way of subrogation under this
Agreement, by any payment or distribution to Foothill hereunder or otherwise.
Upon the payment and performance in full of all Senior Debt, each Obligor shall
be subrogated to the rights of Foothill to receive payments or distributions
applicable to the Senior Debt until the Subordinated Debt shall be paid in full.
For the purposes of the foregoing subrogation, no payments or distributions by
any Obligor to Foothill of any cash, property, or securities to which any other
Obligor would be entitled except for the provisions of Section 3, 4, or 5 shall,
as among such Obligor, its creditors (other than Foothill), and the other
Obligors, be deemed to be a payment by such Obligor to or on account of the
Senior Debt.
(b) Payments Over to the Obligors. If any payment or distribution
to which any Obligor would otherwise have been entitled but for the provisions
of Section 3, 4, or 5 shall have been applied pursuant to the provisions of
Section 3, 4, or 5 to the payment of all amounts payable under the Senior Debt,
such Obligor shall be entitled to receive from Foothill any payments or
distributions received by Foothill in excess of the amount sufficient to pay in
full all amounts payable under or in respect of the Senior Debt. If any such
excess payment is made to Foothill, Foothill shall promptly remit such excess to
such Obligor and until so remitted shall hold such excess payment for the
benefit of such Obligor.
SECTION 10 Continuing Agreement; Reinstatement.
(a) Continuing Agreement. This Agreement is a continuing
agreement of subordination and shall continue in effect and be binding upon each
Obligor until payment and performance in full of the Senior Debt. The
subordinations, agreements, and priorities set forth herein shall remain in full
force and effect regardless of whether any party hereto in the future seeks to
rescind, amend, terminate, or reform, by litigation or otherwise, its respective
agreements with any other Obligor.
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(b) Reinstatement. This Agreement shall continue to be effective
or shall be reinstated, as the case may be, if, for any reason, any payment of
the Senior Debt by or on behalf of the other Obligor shall be rescinded or must
otherwise be restored by Foothill, whether as a result of an Insolvency Event or
otherwise.
SECTION 11 Transfer of Subordinated Debt. Each Obligor may not
assign or transfer its rights and obligations in respect of the Subordinated
Debt without the prior written consent of Foothill, and any such transferee or
assignee, as a condition to acquiring an interest in the Subordinated Debt shall
agree to be bound hereby, in form satisfactory to Foothill.
SECTION 12 Obligations of the Obligors Not Affected. The
provisions of this Agreement are intended solely for the purpose of defining the
relative rights of each Obligor against the other Obligors, on the one hand, and
of Foothill against such other Obligors, on the other hand. Nothing contained in
this Agreement shall (i) impair, as between each Obligor and each other Obligor,
the obligation of such other Obligor to pay its obligations with respect to the
Subordinated Debt as and when the same shall become due and payable, or (ii)
otherwise affect the relative rights of each Obligor against each other Obligor,
on the one hand, and of the creditors (other Foothill) of such other Obligor
against such other Obligor, on the other hand.
SECTION 13 Endorsement of Obligor Documents; Further Assurances
and Additional Acts.
(a) Endorsement of Obligor Documents. At the request of Foothill,
all documents and instruments evidencing any of the Subordinated Debt, if any,
shall be endorsed with a legend noting that such documents and instruments are
subject to this Agreement, and each Obligor shall promptly deliver to Foothill
evidence of the same.
(b) Further Assurances and Additional Acts. Each Obligor shall
execute, acknowledge, deliver, file, notarize, and register at its own expense
all such further agreements, instruments, certificates, financing statements,
documents, and assurances, and perform such acts as Foothill reasonably shall
deem necessary or appropriate to effectuate the purposes of this Agreement, and
promptly provide Foothill with evidence of the foregoing reasonably satisfactory
in form and substance to Foothill.
SECTION 14 Notices. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including by
facsimile transmission) and shall be mailed, sent, or delivered in accordance
with the notice provisions contained in the Loan Agreement. For the purposes
hereof, the address of each party hereto shall be as set forth in the Loan
Agreement or, as to any such party, such other address as shall be designated by
such party in a written notice to the other parties hereto.
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SECTION 15 No Waiver; Cumulative Remedies. No failure on the part
of Foothill to exercise, and no delay in exercising, any right, remedy, power,
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, remedy, power, or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power, or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers, and privileges that may
otherwise be available to Foothill.
SECTION 16 Costs and Expenses.
(a) Payments by Borrower. Borrower agrees to pay to Foothill on
demand the reasonable out-of-pocket costs and expenses of Foothill, and the
reasonable fees and disbursements of counsel to Foothill, in connection with the
negotiation, preparation, execution, delivery, and administration of this
Agreement, and any amendments, modifications, or waivers of the terms thereof.
(b) Payments by the Obligors. Each of the Obligors jointly and
severally agrees to pay to Foothill on demand all costs and expenses of
Foothill, and the fees and disbursements of counsel, in connection with the
enforcement or attempted enforcement of, and preservation of rights or interests
under, this Agreement, including any losses, costs and expenses sustained by
Foothill as a result of any failure by any Obligor to perform or observe its
obligations contained in this Agreement.
SECTION 17 Survival. All covenants, agreements, representations
and warranties made in this Agreement shall, except to the extent otherwise
provided herein, survive the execution and delivery of this Agreement, and shall
continue in full force and effect so long as any Senior Debt remains unpaid.
Without limiting the generality of the foregoing, the obligations of each
Obligor under Section 16 shall survive the satisfaction of the Senior Debt.
SECTION 18 Benefits of Agreement. This Agreement is entered into
for the sole protection and benefit of the parties hereto and their successors
and assigns, and no other Person shall be a direct or indirect beneficiary of,
or shall have any direct or indirect cause of action or claim in connection
with, this Agreement.
SECTION 19 Binding Effect. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by each Obligor and Foothill and
their respective successors and permitted assigns.
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SECTION 20 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
SECTION 21 Submission to Jurisdiction. EACH OBLIGOR HEREBY (i)
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA
AND THE FEDERAL COURTS OF THE UNITED STATES SITTING IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
COURTS, OR AT THE SOLE OPTION OF FOOTHILL, IN ANY OTHER COURT IN WHICH FOOTHILL
SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY (iii) IRREVOCABLY WAIVES (TO THE
EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT NOW OR HEREAFTER MAY
HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY OF
THE FOREGOING COURTS, AND ANY OBJECTION ON THE GROUND THAT ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND (iv)
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 22 Entire Agreement; Amendments and Waivers.
(a) Entire Agreement. This Agreement constitutes the entire
agreement of each of the Obligors and Foothill with respect to the matters set
forth herein and supersedes any prior agreements, commitments, drafts,
communications, discussions, and understandings, oral or written, with respect
thereto.
(b) Amendments and Waivers. No amendment to any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by each of the Obligors and Foothill; and no waiver of any provision
of this Agreement, or consent to any departure by any Obligor therefrom, shall
in any event be effective unless the same shall be in writing and signed by
Foothill. Any such amendment, waiver, or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 23 Conflicts. In case of any conflict or inconsistency
between any terms of this Agreement, on the one hand, and any documents or
instruments in respect of the Subordinated Debt, on the other hand, then the
terms of this Agreement shall control.
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SECTION 24 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 25 Interpretation. This Agreement is the result of
negotiations between, and have been reviewed by the respective counsel to, the
Obligors and Foothill and is the product of all parties hereto. Accordingly,
this Agreement shall not be construed against Foothill merely because of
Foothill's involvement in the preparation hereof.
SECTION 26 Counterparts. This Agreement 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 taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of this Agreement by telefacsimile shall be equally
effective as delivery of an executed original counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by telefacsimile
also shall deliver an original executed counterpart but the failure to deliver
an original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Agreement. This Agreement shall become effective as
to each Obligor upon the execution and delivery of a counterpart hereof by such
Obligor (whether or not a counterpart hereof shall have been executed and
delivered by any other Obligor).
SECTION 27 Termination of Agreement. Upon payment and performance
in full of the Senior Debt, this Agreement shall terminate and Foothill shall
promptly execute and deliver to each Obligor such documents and instruments as
shall be necessary to evidence such termination; provided, however, that the
obligations of each Obligor under Section 16 shall survive such termination.
[Signature page to follow.]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Agreement as of the date first written above.
FITZGERALDS GAMING CORPORATION,
a Nevada corporation
FITZGERALDS SOUTH, INC., a Nevada
corporation
FITZGERALDS MISSISSIPPI, INC., a
Mississippi corporation
FITZGERALDS LAS VEGAS, INC., a Nevada
corporation
FITZGERALDS FREMONT EXPERIENCE
CORPORATION, a Nevada corporation
FITZGERALDS RENO, INC., a Nevada
corporation
FITZGERALDS INCORPORATED, a Nevada
corporation
FITZGERALDS BLACK HAWK, INC., a
Nevada corporation
FITZGERALDS BLACK HAWK II, INC., a
Colorado corporation
000 XXXX XXXXXX LIMITED LIABILITY
COMPANY, a Colorado limited liability
company
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Senior Vice President, Chief Financial
Officer, Treasurer, and Secretary of each of
the above-listed companies
FOOTHILL CAPITAL CORPORATION, a
California corporation
By: /s/ XXXXX XXXXX
--------------------------------
Title: Vice President
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