sc13d

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TCHKt0C2YgT69UNy9EbwrHsS0rCjv139HzM5uIdo0e9aPnk+HzS44278nyvesEZL hDFzMTULb+JqB5yfNMEE7A== 0000950129-05-008225.txt : 20050815 0000950129-05-008225.hdr.sgml : 20050815 20050815123651 ACCESSION NUMBER: 0000950129-05-008225 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050815 DATE AS OF CHANGE: 20050815 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OneTravel Holdings, Inc. CENTRAL INDEX KEY: 0000722839 STANDARD INDUSTRIAL CLASSIFICATION: LAND SUBDIVIDERS & DEVELOPERS (NO CEMETERIES) [6552] IRS NUMBER: 232265039 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-35710 FILM NUMBER: 051024727 BUSINESS ADDRESS: STREET 1: 1150 HAMMOND DR NE STE C3200 CITY: ATLANTA STATE: 2Q ZIP: 30328-8143 BUSINESS PHONE: (404) 531-0432 MAIL ADDRESS: STREET 1: 1150 HAMMOND DR NE STE C3200 CITY: ATLANTA STATE: 2Q ZIP: 30328-8143 FORMER COMPANY: FORMER CONFORMED NAME: RCG Companies INC DATE OF NAME CHANGE: 20050526 FORMER COMPANY: FORMER CONFORMED NAME: RCG COMPANIES INC DATE OF NAME CHANGE: 20031223 FORMER COMPANY: FORMER CONFORMED NAME: ERESOURCE CAPITAL GROUP INC DATE OF NAME CHANGE: 20001113 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Terra Networks Associates, S.L. CENTRAL INDEX KEY: 0001336162 IRS NUMBER: 000000000 STATE OF INCORPORATION: U3 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: VIA DE LAS DOS CASTILLAS 33 STREET 2: POZUELO DE ALARCON CITY: MADRID STATE: U3 ZIP: 28224 BUSINESS PHONE: 34.91.452.4233 MAIL ADDRESS: STREET 1: VIA DE LAS DOS CASTILLAS 33 STREET 2: POZUELO DE ALARCON CITY: MADRID STATE: U3 ZIP: 28224 SC 13D 1 h28046bsc13d.htm TERRA NETWORKS ASOCIADAS, S.L. FOR ONETRAVEL HOLDINGS, INC. sc13d

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

ONETRAVEL HOLDINGS, INC.

(Name of Issuer)

COMMON STOCK, PAR VALUE $0.04 PER SHARE
(Title of Class of Securities)

749328100
(CUSIP Number)

Joanna Franyie Romano, Esq.
General Counsel
Terra Networks USA
95 Merrick Way, Suite 706
Coral Gables, Florida 33134
(786) 552-1356
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)

August 14, 2005
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-l(e), 13d-1(f) or 13d-1(g), check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D


CUSIP No. 749328100	Page 3 of 8 Pages

NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)

TERRA NETWORKS ASOCIADAS, S.L.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*

(a) o

(b) o

SEC USE ONLY

SOURCE OF FUNDS

OO

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Spain

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7.	SOLE VOTING POWER - -1,004,115-

	8.	SHARED VOTING POWER - -0-

	9.	SOLE DISPOSITIVE POWER -1,004,115-

	10.	SHARED DISPOSITIVE POWER -0-

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

1,004,115

12.

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

9%

14.

TYPE OF REPORTING PERSON

OO

SCHEDULE 13D

ITEM 1. SECURITY AND ISSUER.

This Schedule 13D relates to shares of Common Stock, $0.04 par value per share (the “Common Stock”), of OneTravel Holdings, Inc., a Delaware corporation (the “Issuer”). The principal executive office of the Issuer is 6836 Morrison Boulevard, Suite 200, Charlotte, North Carolina 28211.

ITEM 2. IDENTITY AND BACKGROUND.

This Schedule 13D is filed on behalf of Terra Networks Asociadas, S.L., a “Sociedad Limitada” (a limited liability company) organized under the laws of the Kingdom of Spain (the “Reporting Person”). The principal place of business of the Reporting Person is Via de las Dos Castillas 33, Pozuelo de Alarcon, 28224, Madrid, Spain. The principal business of the Reporting Person is providing Internet access, portal and value added services. The Reporting Person has not, during the past five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). The Reporting Person has not, during the past five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction, as a result of which it became or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

On April 15, 2005, the Issuer closed a merger transaction (the “Merger”) through which its wholly-owned subsidiary, OT Acquisition Corporation, a Texas corporation (the “Merger Sub”), merged with and into OneTravel, Inc., a Texas corporation (“OneTravel”). As part of the Merger, the OneTravel shareholders received (i) $13 million, subject to a working capital adjustment; and (ii) six month, interest free, secured, convertible promissory notes in the aggregate principal amount of $12.5 million (collectively, the “OneTravel Promissory Notes”). As a shareholder of OneTravel, the Reporting Person received a promissory note in the original principal amount of $6,903,293.65 (the “Note”). The original maturity date of the Note is October 12, 2005. The Note is convertible into shares of Common Stock at the option of the Reporting Person at a conversion price of $6.875 per share, which is the adjusted conversion price following the one for ten reverse stock split of the Issuer which became effective on July 7, 2005 (the “Reverse Stock Split”). Although convertible, Common Stock may not be issued to the Reporting Person until the maturity date of the Note and then only if the stockholders of the Issuer approve the issuance of such Common Stock. The Issuer has the right to extend the maturity of the Note by up to five months upon payment of an extension fee to the Reporting Person of $69,033.00 per each one month extension.

The Common Stock is listed for trading on the American Stock Exchange. The Note makes the conversion of the principal amount of the Note contingent upon the approval of the stockholders of the Issuer. The Rules of the American Stock Exchange require stockholder approval prior to the issuance of common stock, or securities convertible into common stock, which could result in an increase in outstanding common shares of 20% or more. The issuance of shares of Common Stock in connection with the Merger upon conversion of all of the OneTravel Promissory Notes would result in an increase in the outstanding shares of Common Stock of 20% or more. Therefore, the Issuer obtained the approval of its stockholders for the issuance of additional shares of Common Stock as needed for the conversion of all of the OneTravel Promissory Notes at its annual meeting held on June 24, 2005.

Since the stockholders of the Issuer have approved the issuance of additional shares of Common Stock as needed for the conversion of all of the OneTravel Promissory Notes, as of August 14, 2005, the Reporting Person may acquire the beneficial ownership of 1,004,115 shares of Common Stock within sixty (60) days; provided, that the Issuer does not exercise one of its five options to extend the maturity date for an additional term of thirty days prior to September 12, 2005 (i.e., within the thirty day period following August 14, 2005). As of the date of this Schedule 13D, the Reporting Person has not elected to convert the principal amount of the Note into shares of Common Stock.

The Issuer has agreed to file a registration statement with the Securities and Exchange Commission registering for resale all shares of Common Stock issuable upon conversion of the principal amount of the Note.

ITEM 4. PURPOSE OF THE TRANSACTION.

The Reporting Person acquired the Note in the Merger as merger consideration and if the Reporting Person elects to convert the principal amount of the Note into shares of Common Stock it will do so to hold such shares for investment. The Reporting Person does not have any specific plans or proposals relating to the acquisition of shares of Common Stock or the disposition of shares of Common Stock. However, depending upon market conditions and other factors, the Reporting Person may, from time to time, either jointly or individually, acquire additional shares of Common Stock or dispose of the Note or all or any portion of the shares of Common Stock received if the Reporting Person elects to convert the principal amount of the Note into shares of Common Stock.

The Reporting Person does not have any specific plans or proposals which relate to or would result in: (a) any extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (b) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (c) any change in the present board of directors or management of the Issuer, including plans or proposals relating to changes in the number or terms of directors or filling any existing vacancies on the Issuer’s board; (d) any material change in the present capitalization or dividend policy of the Issuer; (e) any other material change in the Issuer’s business or corporate structure; (f) changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (g) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (h) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or (i) any action similar to any of those enumerated above; but it reserves the right to propose or undertake or participate in any of the foregoing actions in the future.

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.

(a)

As of August 14, 2005, the Reporting Person beneficially owns of 1,004,115 shares of Common Stock which are issuable upon conversion of the Note. The Note is convertible at the option of the Reporting Person. The 1,004,115 shares of Common Stock beneficially owned by the Reporting Person constitutes 9% of the outstanding shares of Common Stock of the Issuer.

(b)

The Reporting Person has the sole power to vote and direct the voting of, and to dispose or direct the disposition of, all 1,004,115 shares of Common Stock that the Reporting Person may acquire if it elects to convert the principal amount of the Note into shares of Common Stock.

(c)

None.

(d)

No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the 1,004,115 shares of Common Stock covered by this Schedule 13D.

(e)

Not applicable.

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

The Note was made by the Issuer in favor of the Reporting Person as part of the merger consideration for the Merger pursuant to the terms of that certain Agreement and Plan of Merger, dated February 10, 2005, by and among the Issuer, the Merger Sub, OneTravel, the Reporting Person, Amadeus Americas, Inc., a Delaware corporation (“Amadeus”), Avanti Management, Inc., a Pennsylvania corporation (“Avanti” and together with Amadeus and the Reporting Person, the “Shareholders”), and a Shareholder Representative named therein, a copy of which is filed with this Schedule 13D as Exhibit 1. The terms of the Note are set forth in that certain Convertible Promissory Note, dated April 15, 2005, a copy of which is filed with this Schedule 13D as Exhibit 2. The Shareholders (including the Reporting Person), the Issuer and Libra Securities, LLC, a Delaware limited liability company (“Libra Securities”), entered into a Registration Rights Agreement, dated April 15, 2005 (the “Registration Rights Agreement”), a copy of which is filed with this Schedule 13D as Exhibit 3, pursuant to which the Issuer agreed to register the resale of the Common Stock issuable upon conversion of the OneTravel Promissory Notes. The Reporting Person and the Issuer entered into a Security Agreement, dated April 15, 2005 (the “Security Agreement”), a copy of which is filed with this Schedule 13D as Exhibit 4, pursuant to which the Issuer granted the Reporting Person a security interest in certain of its assets to secure the payment of the principal amount of the Note. The Shareholders (including the Reporting Person) and Libra Securities are also party to that certain Intercreditor Agreement, dated April 15, 2005 (the “Intercreditor Agreement”), a copy of which is filed with this Schedule 13D as Exhibit 5, pursuant to which the Shareholders (including the Reporting Person) and Libra Securities established their relative rights to exercise remedies under their respective security agreements with the Issuer.

To the best of the knowledge of the Reporting Person, except for the Merger Agreement, the Note, the Registration Rights Agreement, the Security Agreement and the Intercreditor Agreement described herein, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Person and any other person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.

The following exhibits are filed herewith:

	1.		Agreement and Plan of Merger, by and among RCG Companies Incorporated, OT Acquisition Corporation, OneTravel, Inc., Terra Networks Asociadas, S.L., Amadeus Americas, Inc., Avanti Management, Inc., and a Shareholder Representative named therein, dated February 10, 2005, incorporated herein by reference and filed as Exhibit 10.1 on the Issuer’s Form 8-K filed on April 19, 2005.

	2.		Convertible Promissory Note made by RCG Companies Incorporated in favor of Terra Networks Asociadas, S.L. in the original principal amount of $6,903,293.65, dated April 15, 2005.

	3.		Registration Rights Agreement, by and among RCG Companies Incorporated, Terra Networks Asociadas, S.L., Amadeus Americas, Inc., Avanti Management, Inc. and Libra Securities, LLC, dated April 15, 2005, incorporated herein by reference and filed as Exhibit 10.2 on the Issuer’s Form 8-K filed on April 19, 2005.

	4.		Security Agreement, by and between RCG Companies Incorporated and Terra Networks Asociadas, S.L., dated as of April 15, 2005.

	5.		Intercreditor Agreement, by and among Terra Networks Asociadas, S.L., Amadeus Americas, Inc., Avanti Management, Inc. and Libra Securities, LLC, dated April 15, 2005.

SIGNATURES

After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information contained in this Schedule 13D is true, complete and correct.

Dated: August 12, 2005


TERRA NETWORKS ASOCIADAS, S.L.
By:	/ s / Joanna Franyie Romano
	Name:	Joanna Franyie Romano
	Title:	Counsel

EXHIBIT INDEX

1.		Agreement and Plan of Merger, by and among RCG Companies Incorporated, OT Acquisition Corporation, OneTravel, Inc., Terra Networks Asociadas, S.L., Amadeus Americas, Inc., Avanti Management, Inc., and a Shareholder Representative named therein, dated February 10, 2005, incorporated herein by reference and filed as Exhibit 10.1 on the Issuer’s Form 8-K filed on April 19, 2005.

2.		Convertible Promissory Note made by RCG Companies Incorporated in favor of Terra Networks Asociadas, S.L. in the original principal amount of $6,903,293.65, dated April 15, 2005.

3.		Registration Rights Agreement, by and among RCG Companies Incorporated, Terra Networks Asociadas, S.L., Amadeus Americas, Inc., Avanti Management, Inc. and Libra Securities, LLC, dated April 15, 2005, incorporated herein by reference and filed as Exhibit 10.2 on the Issuer’s Form 8-K filed on April 19, 2005.

4.		Security Agreement, by and between RCG Companies Incorporated and Terra Networks Asociadas, S.L., dated as of April 15, 2005.

5.		Intercreditor Agreement, by and among Terra Networks Asociadas, S.L., Amadeus Americas, Inc., Avanti Management, Inc. and Libra Securities, LLC, dated April 15, 2005.

EX-99.2 2 h28046bexv99w2.htm CONVERTIBLE PROMISSORY NOTE exv99w2

Exhibit 2

THIS SECURITY AND THE SECURITIES RECEIVABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE OFFERING OF THIS SECURITY AND THE SECURITIES RECEIVABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REVIEWED OR APPROVED BY ANY STATE’S SECURITIES ADMINISTRATOR. THIS SECURITY AND THE SECURITIES RECEIVABLE UPON THE CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS REGISTERED OR QUALIFIED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO COUNSEL FOR THE CORPORATION STATING THAT REGISTRATION, QUALIFICATION OR OTHER SUCH ACTIONS ARE NOT REQUIRED UNDER ANY SUCH LAWS.

CONVERTIBLE PROMISSORY NOTE


$6,903,293.65		April 15, 2005

RCG COMPANIES INCORPORATED, a Delaware corporation (the “Corporation”), hereby promises to pay to the order of Terra Networks Asociadas, S.L., (or a permitted assignee hereunder, the “Lender”), the principal amount of Six Million Nine Hundred Three Thousand Two Hundred Ninety Three Dollars and Sixty Five Cents ($6,903,293.65) in accordance with the provisions of this Convertible Promissory Note (this “Note”).

This Note is issued as partial consideration for the consummation of the transactions set forth in that certain Agreement and Plan of Merger by and among the Corporation, the Lender, Onetravel, Inc., a Texas corporation, and the other parties named therein (the “Merger Agreement”). This Note is subject to that certain Security Agreement, of even date herewith, by and among the Corporation and the Lender (the “Security Agreement”).

1. Principal Amount. The amount on the face of this Note shall constitute the principal amount of this Note (the “Principal Amount”). The Principal Amount shall not bear interest.

2. Payment of Principal Amount. To the extent this Note has not been converted as set forth herein, the Corporation shall pay the Principal Amount of this Note in full on the date that is one hundred eighty (180) days after the date hereof, or on the next succeeding Business Day if such date is not a Business Day (after giving effect to any Extension thereof pursuant to the following sentence, the “Maturity Date”). Notwithstanding the foregoing, the Corporation may extend, upon five (5) days’ written notice, the Maturity Date by up to six (6) periods of thirty (30) days each (each, an “Extension”), by payment of the sum of $69,033.00 in cash prior to the Maturity Date in effect pursuant to this Section 2 before the effect of any such Extension; provided, however, that in the event that the Corporation pays the Closing Deposit Amount (as

defined in the Merger Agreement), the number of Extensions available to the Corporation shall be no more than five (5). This Note may be prepaid by the Corporation, in whole or in part, at any time prior to the Maturity Date.

3. Conversion of the Note into Common Stock.

(a) Optional Payment in Cash or Conversion. Upon written notice delivered not less than thirty (30) days prior to the Maturity Date, the Lender may require in its sole discretion that the Principal Amount of this Note shall be (i) paid by the Corporation at the Maturity Date by wire transfer of immediately available funds to an account designated by the Lender without presentment or notation of payment, or (ii) subject to the provisions of Section 3(f) below, converted into Common Stock pursuant to the terms set forth in Section 3(b) below upon surrender of this Note to the Corporation (a “Conversion”). In the event that such written notice is not delivered in accordance with this Section 3(a), at the Maturity Date, a Conversion of this Note shall automatically occur.

(b) Computation of the Number of Shares of Common Stock upon Conversion. In the event of a Conversion, as of the Maturity Date, the Lender shall receive a number of fully paid and non-assessable shares of Common Stock, equal to the amount computed by dividing (i) the Principal Amount by (ii) the Conversion Price (the “Conversion Shares”). Notwithstanding the foregoing, the Corporation shall not issue any fractional shares upon any conversion hereunder. If the conversion would result in the issuance of a fraction of a Conversion Share less than 0.5, the Corporation shall round such fraction of a Conversion Share down to the nearest whole Conversion Share. If the conversion would result in the issuance of a fraction of a Conversion Share equal to or greater than 0.5, the Corporation shall round such fraction of a Conversion Share up to the nearest whole Conversion Share.

(c) Notices. In the event of a Conversion, prior to or upon the Maturity Date, the Corporation shall give written notice to the Lender setting forth the Lender’s Principal Amount and the number of Conversion Shares to be received.

(d) Note Conversion Deliveries. In the event of a Conversion, on the Maturity Date, the following shall occur:

(i) the Lender shall surrender its originally executed Note to the Corporation, and such Note shall be deemed canceled;

(ii) the Corporation shall deliver to the Lender a certificate or certificates representing the number of shares of Common Stock, issuable by reason of such conversion and computed in accordance with Section 3(b) above, in such name or names and such denomination or denominations as the Lender has specified; and

(iii) the Lender will deliver a certificate to the Corporation stating that the representations and warranties of the Lender set forth in Section 11.5 of the Merger Agreement are true and correct as of the Maturity Date.

(e) Issuance Taxes. The issuance of certificates for Common Stock upon such conversion shall be made without charge to the Lender for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issuance of Conversion Shares (but excluding any income or similar taxes attributable to the Lender). Upon such conversion, the Corporation shall take all such actions as are necessary in order to insure that the Conversion Shares issuable with respect to such Conversion shall be validly issued, fully paid and nonassessable. Upon such conversion, the Lender shall be entitled to the same rights and benefits accorded to the other holders of Common Stock.

(f) Limitation on Number of Shares Issuable Hereunder. The Corporation shall not be obligated to issue any Conversion Shares unless the Corporation obtains approval by the Corporation’s stockholders of the Corporation’s issuance of all of the Conversion Shares. In the event that upon any Conversion of this Note the Lender shall not be permitted to receive all of the Conversion Shares otherwise issuable to the Lender due to the provisions of this Section 3(f), the Corporation shall pay the remaining Principal Amount of this Note at the Maturity Date in cash by wire transfer of immediately available funds. At the next meeting of the Corporation’s stockholders, the Corporation will seek the approval by the stockholders of Lender’s ability to convert the Note into all the Conversion Shares and the Corporation’s Board of Directors shall recommend such approval.

4. Negative Covenants. Without the approval of the Lender, the Corporation shall not:

(a) create or suffer to exist any lien upon or security interest in any of its assets, other than the liens and security interests in favor of the Lender granted by the Corporation in accordance with the Security Agreement executed of even date herewith, or which are “Permitted Liens” thereunder, and other liens for other Notes of even date herewith, and liens that are junior to the obligations under this Note (collectively, “Permitted Liens”);

(b) merge, dissolve, liquidate, consolidate with or into another Person, or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any person;

(c) sell, transfer, license, lease, or otherwise dispose (including pursuant to any sale and leaseback transaction) of any of its property, except: (i) dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (ii) dispositions in the ordinary course of business; and (iii) dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the

proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property;

(d) declare or make, directly or indirectly, any dividend or other distribution (whether in cash, securities, or other property) with respect to any capital stock or other equity interest of the Corporation or any subsidiary thereof, or any payment (whether in cash, securities, or other property) on account of the purchase, redemption, retirement, acquisition, cancellation, or termination of any such capital stock or other equity interest, or on account of any return of capital to the Corporation’s stockholders, partners or members (or the equivalent person thereof) (each, a “Restricted Payment”), except that, so long as no Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (i) each subsidiary may make Restricted Payments to the Corporation and any other person that owns an equity interest in such subsidiary, ratably according to their respective holdings of the type of equity interest in respect of which such Restricted Payment is being made; (ii) the Corporation and each subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common equity interests of such person; and (iii) the Corporation may purchase, redeem, or otherwise acquire equity interests issued by it or securities convertible into or exercisable for equity interests with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common equity interests or securities convertible into or exercisable for equity interests, and may also redeem the Financing Securities at an initial scheduled redemption date that is at least 20 days after the Maturity Date and all available extensions;

(e) engage in any material line of business substantially different from those lines of business conducted by the Corporation on the date hereof or any business substantially related or incidental thereto; or

(f) enter into any contract (other than this promissory note, the Security Agreement, and any comparable document contemplated under the Merger Agreement) that limits the ability of any subsidiary of the Corporation to make distributions or dividends to the Corporation or to otherwise transfer property to the Corporation.

In addition, the Corporation will provide written notice to Lender prior to, incurring any indebtedness, other than the indebtedness hereunder, indebtedness incurred in contemplation of the repayment of the indebtedness hereunder, indebtedness incurred in the ordinary course of the Corporation’s business and indebtedness in favor of the other parties to the Merger Agreement;

5. Events of Default.

(a) Events of Default. For purposes of this Note, an Event of Default shall be deemed to have occurred if:

(i) The Corporation fails to properly (a) pay the entire Principal Amount of this Note when due at the Maturity Date or (b) convert this Note on the terms and conditions specified herein;

	(ii)		Any Event of Default exists under the Convertible Promissory Notes dated of even date herewith, executed by the Corporation in favor of each of Amadeus Americas, Inc. f/k/a Amadeus NMC Holding, Inc., a Delaware corporation, Avanti Management, Inc., a Pennsylvania corporation, and Libra Securities, L.L.C.;

	(iii)		the Corporation, pursuant to or within the meaning of Title 11, U.S. Code, or any similar Federal or state law for the relief of debtors (collectively, “Bankruptcy Law”), (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a receiver, trustee, assignee, liquidator or similar official (a “Custodian”), (D) makes a general assignment for the benefit of its creditors or (E) admits in writing that it is generally unable to pay its debts as they become due;

	(iv)		a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Corporation in an involuntary case, (B) appoints a Custodian of the Corporation or (C) orders the liquidation of the Corporation;

	(v)		the Corporation breaches in any material respect any representation, warranty, covenant or other term or condition of this Note, Section 9.7(c) of the Merger Agreement or the Security Agreement, except, in the case of a breach of a covenant which is curable, only if such breach continues for a period of at least thirty (30) consecutive calendar days after written notice thereof to the Corporation; or

	(vi)		the maturity of greater than $2,000,000 in the aggregate of indebtedness for borrowed money of the Corporation and its subsidiaries is accelerated and becomes due prior to its stated maturity date due to a breach or default by the Corporation and its subsidiaries of any representation, warranty, covenant or agreement contained in the agreements governing such indebtedness.

(b) Consequences of Events of Default. If an Event of Default has occurred and be continuing, for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or otherwise), the Principal Amount of this Note shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Corporation; provided, that, notwithstanding the foregoing, the rights and remedies of the Lender upon an Event of Default are governed by that certain Intercreditor Agreement dated of even date herewith, executed by the Corporation, the Lender, Amadeus Americas, Inc. f/k/a Amadeus NMC Holding,

Inc., a Delaware corporation, Avanti Management, Inc., a Pennsylvania corporation, and Libra Securities, L.L.C.

6. Replacement of Note. Upon receipt of evidence satisfactory to the Corporation of the loss, theft, destruction or mutilation of this Note and, if requested in the case of any such loss, theft or destruction, upon delivery of an indemnity bond or other agreement or security satisfactory to the Corporation or, in the case of any such mutilation, upon surrender and cancellation of this Note, the Corporation will issue a new Note of like tenor and amount, in replacement of such lost, stolen, destroyed or mutilated Note.

7. Amendment and Waiver. Except as otherwise expressly provided herein, the provisions of this Note may be amended and the Corporation may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Corporation has obtained the written consent of the holder of this Note.

8. Assignment. This Note may not be transferred or assigned by the Lender without the prior written consent of the Corporation. Any transfer shall be made in accordance with applicable securities laws. In the event of a transfer of this Note in accordance with the terms hereof, the Lender shall be deemed to have assigned its rights under the Security Agreement to such assignee.

9. Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with Section 16.1 of the Merger Agreement.

10. Remedies, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and the Security Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Lender’s right to pursue actual damages for any failure by the Corporation to comply with the terms of this Note. The Corporation acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Lender and that the remedy at law for any such breach may be inadequate. The Corporation therefore agrees that, in the event of any such breach or threatened breach, the Lender shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.

11. Payment of Collection, Enforcement and Other Costs. If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the Lender otherwise takes action to collect amounts due under this Note or to enforce the provisions of this Note, or (b) there occurs any bankruptcy, reorganization, receivership of the Corporation or other proceedings affecting the Corporation’s creditors’ rights and involving a claim under this Note, then the Corporation shall pay the costs incurred by the Lender for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including but not limited to reasonable attorneys fees and disbursements.

12. Failure or Indulgence not Waiver. No failure or delay on the part of the Lender in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

13. Waiver of Notice. To the extent permitted by law, the Corporation hereby waives demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note.

14. Security Agreement. The Corporation and the Lender have entered into a Security Agreement dated of even date herewith, which secures the prompt and complete payment, performance and observance when due (whether at stated maturity, by acceleration or otherwise) of all of the “Obligations” defined therein.

15. Registration Rights. The Corporation and the Lender shall enter into a registration rights agreement of even date herewith regarding the registration of the Common Stock with the United States Securities and Exchange Commission.

16. Definitions. For the purposes of this Note, the following terms have the meaning set forth below:

(a) “Business Day” shall mean a day other than Saturday, Sunday or a public holiday on which banks are closed under the laws of the State of New York.

(b) “Common Stock” shall mean shares of the Corporation’s common stock, $0.04 par value per share.

(c) “Conversion Price” shall initially be $0.6875. In the event that the conversion price of the Series C Convertible Preferred Stock of the Corporation is adjusted to the Reset Amount pursuant to Section 6(f)(ii) of the Series C Certificate of Designations as a consequence of the Reverse Stock Split, then at such time the Conversion Price shall automatically adjust to an amount equal to 125% of the conversion price of the Series C Preferred Stock of the Corporation as adjusted to reflect the Reset Amount; provided, however, that the Lender will be entitled to the benefit of this adjustment to the Conversion Price only if the Lender delivers to the Corporation no later than fourteen (14) days following the date of issuance of this Note an agreement in writing confirming that neither it nor any Person acting on its behalf or pursuant to any understanding with it has or will engage in or close out any transactions in the securities of the Corporation (including Short Sales) from the date hereof through the earlier of (i) the Business Day following the Reset Period, or (ii) 270 days from the date hereof; provided, further, that the Corporation shall notify the Lender in writing within one (1) Business Day should any such adjustment occur. In addition, the Conversion Price and the amount and kind of securities issuable upon conversion of this Note shall be subject to adjustment from time to time in accordance with the provisions of this Section 16(c).

(1) Adjustments to Conversion Price.

(i) Subdivision or Combination of Common Stock. In case the Corporation shall at any time subdivide (by any stock split, stock dividend or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision shall be proportionately reduced, and, conversely, in case the outstanding shares of Common Stock shall be combined into a smaller number of shares, the Conversion Price in effect immediately prior to such combination shall be proportionately increased.

(ii) Reorganization or Reclassification. If any capital reorganization or reclassification of the capital stock of the Corporation (other than in connection with a merger or reorganization, which is covered by (iii) below) shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities, properties or assets (including cash) with respect to or in exchange for Common Stock, then, as a condition of such reorganization or reclassification, lawful and adequate provisions shall be made whereby the Lender shall thereupon have the right to receive upon the conversion of this Note, upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately theretofore receivable upon the conversion of this Note, such shares of stock, securities, property or assets (including cash) as may be issued or payable with respect to or in exchange for the shares of Common Stock immediately theretofore receivable upon such conversion had such reorganization or reclassification not taken place, and in any such case appropriate provisions shall be made with respect to the rights and interests of the Lender to the end that the provisions hereof (including without limitation provisions for adjustments of the Conversion Price) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise of such conversion rights.

(iii) Mergers and Consolidations. If the Corporation shall merge or consolidate with or into any other Person, then the Lender shall have the right to receive upon conversion of this Note, upon the terms and conditions specified therein, and in lieu of the shares of Common Stock immediately theretofore receivable upon the conversion of this Note, such shares of stock, securities, property or assets (including cash) as may be issued or payable with respect to or in exchange for the shares of Common Stock immediately theretofore receivable upon such conversion had the Lender converted this Note immediately prior to such merger or consolidation.

(2) Notice of Adjustment. Upon any adjustment of the Conversion Price, then and in each such case the Corporation shall give prompt written notice thereof (but in no event in less than ten (10) Business Days), by delivery in person, certified or registered

mail, return receipt requested, telecopier or telex, addressed to the Lender at the address of the Lender, as provided to the Corporation, which notice shall state the Conversion Price resulting from such adjustment, setting forth in reasonable detail the method upon which such calculation is based.

(3) Due Issuance of Shares Upon Conversion. The Corporation covenants and agrees that all shares of Common Stock or any such other securities which may be issued upon any whole or partial conversion of this Note will, upon issuance, be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof.

(4) Stock to be Reserved. The Corporation will at all times reserve and keep available out of its authorized Common Stock, solely for the purpose of issuance upon the conversion of this Note as herein provided, such number of shares of Common Stock as shall then be issuable upon the conversion hereof. The Corporation covenants that, to the extent permitted by law, it will from time to time take all such action as may be required to assure that the par value per share of the Common Stock is at all times equal to or less than the Conversion Price in effect at the time. The Corporation will not take any action that results in any adjustment of the Conversion Price if the total number of shares of Common Stock issued and issuable after such action upon conversion of this Note would, when added to the number of shares of Common Stock then reserved for issuance, exceed the total number of shares of Common Stock then authorized by the Corporation’s Certificate of Incorporation.

(5) Issue Tax. The issuance of certificates for shares of Common Stock upon conversion of this Note shall be made without charge to the Lender for any United States issuance tax in respect thereof, provided that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the Lender.

(6) Closing of Books. The Corporation will at no time close its transfer books against the transfer of any shares of Common Stock issued or issuable upon the conversion of the Note in any manner which interferes with the timely conversion of such Note, except as may otherwise be required to comply with applicable securities laws.

(d) “Financing Securities” shall mean the Common Stock, convertible notes, convertible preferred stock and/or warrants issued by the Corporation in connection with its financing of the acquisition of Onetravel, Inc. under the Merger Agreement.

(e) “Person” shall mean any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated association, corporation or other entity or any government entity.

(f) “Reset Amount” shall have the meaning set forth in the Series C Certificate of Designations.

(g) “Reset Period” shall have the meaning set forth in the Series C Certificate of Designations.

(h) “Reverse Stock Split” shall have the meaning set forth in the Series C Certificate of Designations.

(i) “Securities Act” shall mean the Securities Act of 1933, as amended, or any similar federal law then in force.

(j) “Series C Certificate of Designations” shall mean the Certificate of Designations of the Corporation with respect to the Series C Preferred Stock of the Corporation.

(k) “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps, and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated holders.

17. Severability. Whenever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

18. Entire Agreement. This Note, the Merger Agreement and the Security Agreement and the other writings referred to herein or therein contain the entire agreement among the Corporation and the Lender with respect to the transactions contemplated hereby and supersede all prior agreements or understandings, written or oral, between the Corporation and the Lender.

19. Amendments; Waiver. This Note may be amended, or any provision of this Note may be waived, only in a writing signed by the Corporation and the Lender.

20. Construction; Headings. This Note shall be deemed to be jointly drafted by the Corporation and the Lender and shall not be construed against any Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation of, this Note.

21. Governing Law. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware.

[signature page follows]

     IN WITNESS WHEREOF, the Corporation has, through its duly authorized officer, executed and delivered this Note as of the date first written above.

RCG COMPANIES INCORPORATED

By:   /s/ Marc E. Bercoon
Name:   Marc E. Bercoon
Its: CFO

EX-99.4 3 h28046bexv99w4.htm SECURITY AGREEMENT DATED APRIL 15, 2005 exv99w4

Exhibit 4

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (this “Agreement”) dated as of April 15, 2005, is among RCG Companies Incorporated, a Delaware corporation (together with its successors and assigns, “Debtor”), and Terra Networks Asociadas, S.L., a company organized and existing under the laws of the Kingdom of Spain (“Secured Party”).

W I T N E S S E T H:

WHEREAS, this Agreement is made pursuant to the Agreement and Plan of Merger, dated February 10, 2005, by and among OneTravel, Inc., a Texas corporation, the Debtor, Amadeus Americas, Inc. f/k/a Amadeus NMC Holding, Inc., a Delaware corporation (“Amadeus”), Terra Networks Asociadas, S.L., a company organized and existing under the laws of the Kingdom of Spain (“Terra”), Avanti Management, Inc., a Pennsylvania corporation (“Avanti”), and OT Acquisition Corporation, a Texas corporation (the “Merger Agreement”);

WHEREAS, Debtor has entered into a Convertible Promissory Note dated as of the date hereof with the Secured Party (the “Promissory Note”); and

WHEREAS, all of Debtor’s obligations, liabilities and indebtedness under the Promissory Note are to be secured pursuant to this Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:

1. Definitions. The following terms have the following meanings (such definitions to be applicable to both the singular and plural forms of such terms):

Arrangement means (i) any written lease, agreement, contract, commitment or license or (ii) any enforceable understanding or enforceable oral lease, agreement, contract, commitment or license; by which Debtor (a) has or may acquire any rights, (b) has or may become subject to any obligation or liability, or (c) any of the assets owned or used by it is or may become bound.

Collateral means all of the assets of the Debtor, wherever located, now owned or in the future existing or acquired by Debtor, and all proceeds and products thereof, and any substitutes or replacements therefore, including but not limited to the following items and types of property of the Debtor:

(a) All personal property and fixture property of every kind and nature including, without limitation, all accounts, chattel paper (whether tangible or electronic), goods (including inventory, equipment, and any accessions thereto), software, instruments, investment property, documents, deposit accounts, money, commercial tort claims, letters of credit or letter-of-credit rights, supporting obligations, tax refunds, and general intangibles (including payment intangibles);

(b) All rights, titles, and interests of Debtor in and to all outstanding stock, equity, or other investment securities owned by Debtor, including, without limitation, all capital stock of any subsidiary of the Debtor;

(c) All rights, titles, and interests of Debtor in and to all promissory notes and other instruments payable to Debtor, including, without limitation, all inter-company notes from subsidiaries (“Collateral Notes”) and all rights, titles, interests, and liens and encumbrances Debtor may have, be, or become entitled to under all present and future loan agreements, security agreements, pledge agreements, deeds of trust, mortgages, guarantees, or other documents assuring or securing payment of or otherwise evidencing the Collateral Notes;

(d) The Partnership Interests (as defined below) and all rights of Debtor with respect thereto, including, without limitation, all of Debtor’s distribution rights, income rights, liquidation interest, accounts, contract rights, general intangibles, notes, instruments, drafts, and documents relating to the Partnership Interests;

(e) (i) All copyrights (whether statutory or common law, registered or unregistered), works protectable by copyright, copyright registrations, copyright licenses, and copyright applications of Debtor, including, without limitation, all of Debtor’s right, title, and interest in and to all copyrights registered in the United States Copyright Office or anywhere else in the world; (ii) all renewals, extensions, and modifications thereof; (iii) all income, licenses, royalties, damages, profits, and payments relating to or payable under any of the foregoing; (iv) the right to sue for past, present, or future infringements of any of the foregoing; and (v) all other rights and benefits relating to any of the foregoing throughout the world; in each case, whether now owned or hereafter acquired by Debtor (“Copyrights”);

(f) (i) All patents, patent applications, patent licenses, and patentable inventions of Debtor, including, without limitation, registrations, recordings, and applications thereof in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof, and all of the inventions and improvements described and claimed therein; (ii) all continuations, divisions, renewals, extensions, modifications, substitutions, reexaminations, continuations-in-part, or reissues of any of the foregoing; (iii) all income, royalties, profits, damages, awards, and payments relating to or payable under any of the foregoing; (iv) the right to sue for past, present, and future infringements of any of the foregoing; and (v) all other rights and benefits relating to any of the foregoing throughout the world; in each case, whether now owned or hereafter acquired by Debtor (“Patents”);

(g) (i) All trademarks, trademark licenses, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, certification marks, collective marks, logos, other business identifiers, all registrations, recordings, and applications thereof, including, without limitation, registrations, recordings, and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any

political subdivision thereof; (ii) all reissues, extensions, and renewals thereof; (iii) all income, royalties, damages, and payments now or hereafter relating to or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements of any of the foregoing; (iv) the right to sue for past, present, and future infringements of any of the foregoing; (v) all rights corresponding to any of the foregoing throughout the world; and (vi) all goodwill associated with and symbolized by any of the foregoing, in each case, whether now owned or hereafter acquired by Debtor (“Trademarks”);

(h) All of Debtor’s computer software, programs and databases (including, without limitation, source code, object code and all related applications and data files), firmware and documentation and materials relating thereto, together with any and all maintenance rights, service rights, programming rights, hosting rights, test rights, improvement rights, renewal rights and indemnification rights and any substitutions, replacements, improvements, error corrections, updates and new versions of any of the foregoing;

(i) All of Debtor’s rights, titles, and interests in other proprietary rights not included in the Copyrights, Patents and Trademarks, whether now owned or hereafter acquired by Debtor, including without limitation: (i) any knowledge or information that is material to Debtor’s business and that enables Debtor to operate its business with the accuracy, efficiency, or precision necessary for commercial success, or otherwise affords Debtor a commercial advantage for the possession or knowledge thereof; (ii) any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof that is material to the operation of Debtor’s business and developed by Debtor, its employees, or agents, which could potentially be eligible for protection as Patent(s), but whether or not currently the subject of Patent(s); and (iii) all information or other items recognized as “trade secrets” under state or federal law and all comparable rights recognized in foreign jurisdictions or conventions or by treaty;

(j) (i) All of debtor’s rights, titles, and interests in, to, and under the Arrangements, including, without limitation, all rights of Debtor to receive moneys due and to become due under or pursuant to the Arrangements, (ii) all rights of Debtor to receive proceeds of any insurance, indemnity, warranty, or guaranty with respect to the Arrangements, (iii) all claims of Debtor for damages arising out of or for breach of or default under the Arrangements, and (iv) all rights of Debtor to compel performance and otherwise exercise all rights and remedies under the Arrangements;

(k) All present and future automobiles, trucks, truck tractors, trailers, semi-trailers, or other motor vehicles or rolling stock, now owned or hereafter acquired by such Debtor;

(l) Any and all material deposit accounts, bank accounts, investment accounts, or securities accounts, now owned or hereafter acquired or opened by Debtor and any account which is a replacement or substitute for any of such accounts, together with all monies, instruments, certificates, checks, drafts, wire transfer receipts, and other property deposited therein and all balances therein;

(m) All present and future distributions, income, increases, profits, combinations, reclassifications, improvements, and products of, accessions, attachments, and other additions to, tools, parts, and equipment used in connection with, and substitutes and replacements for, all or part of the Collateral described above;

(n) All present and future accounts, contract rights, general intangibles, chattel paper, documents, instruments, cash and noncash proceeds, and other rights arising from or by virtue of, or from the voluntary or involuntary sale or other disposition of, or collections with respect to, or insurance proceeds payable with respect to, or proceeds payable by virtue of warranty or other claims against the manufacturer of, or claims against any other Person with respect to, all or any part of the Collateral heretofore described in this clause or otherwise; and

(o) All present and future security for the payment to any company of any of the Collateral described above and goods which gave or will give rise to any such Collateral or are evidenced, identified, or represented therein or thereby.

Event of Default means the occurrence of any Event of Default as defined in the Promissory Note.

Jurisdiction of Organization means the jurisdiction under whose law Debtor is organized on the date hereof.

Obligations means the obligations of the Debtor under the Promissory Note.

Partnerships shall mean (a) any partnership, joint venture, or limited liability company in which Debtor shall, at any time, become a limited or general partner, venturer, or member, or (b) any partnership, joint venture, or corporation formed as a result of the restructure, reorganization, or amendment of the Partnerships.

Partnership Agreements shall mean partnership agreements, joint venture agreements, or organizational agreements for any of the Partnerships (together with any modifications, amendments or restatements thereof), and “Partnership Agreement” means any one of the Partnership Agreements.

Partnership Interests shall mean all of Debtor’s right, title and interest now or hereafter accruing under the Partnership Agreements with respect to all distributions, allocations, proceeds, fees, preferences, payments, or other benefits, which Debtor now is or may hereafter become entitled to receive with respect to such interests in the Partnerships and with respect to the repayment of all loans now or hereafter made by Debtor to the Partnerships.

Permitted Liens means (a) liens for taxes, assessments, governmental charges or levies or mechanics’ and other statutory liens which are not material in amount relative to the property affected and which are not yet delinquent or can be paid without penalty or are being contested in good faith by appropriate proceedings in respect thereof; (b) imperfections of title which are not substantial in amount relative to the property affected and which do not materially interfere

with the present use of the property subject thereto or affected thereby; and (c) liens arising from travel agency regulations relating to customer funds.

Records means information which is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.

UCC means the Uniform Commercial Code as in effect in the Jurisdiction of Organization from time to time; provided that, as used in Section 9 hereof, “UCC” shall mean the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.

2. Grant of Security Interest. As security for the prompt and complete payment, performance and observance when due (whether at stated maturity, by acceleration or otherwise) of all of the Obligations, Debtor hereby assigns to Secured Party and grants to Secured Party a continuing security interest in and to (and a setoff right against) the Collateral.

3. Warranties. Debtor warrants that: (i) no financing statements, other than any which may have been filed on behalf of Secured Party or as disclosed on Schedule 3 attached hereto, covering any of the Collateral is on file in any public office; (ii) Debtor is the lawful owner of all Collateral free of all liens and claims other than the security interests hereunder, liens with respect to the financing statements disclosed on Schedule 3 attached hereto, and Permitted Liens, with full power and authority to execute this Agreement and perform Debtor’s obligations hereunder, and to subject the Collateral to the security interest hereunder; (iii) this Agreement is a legal, valid and binding obligation of Debtor, enforceable in accordance with its terms, except that the enforceability of this Agreement may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); (iv) Debtor’s Jurisdiction of Organization is Delaware, Debtor’s chief executive office and principal place of business is located in Charlotte, North Carolina, Debtor’s tax identification number and organizational identification number are correctly set forth on the financing statement listing Secured Party as “Secured Party,” and Debtor maintains a place of business in the following locations: Atlanta, Georgia and Charlotte, North Carolina.

4. Collections, etc. Until such time during the occurrence a continuance of an Event of Default as the Secured Parties shall notify Debtor of the revocation of such power and authority, Debtor (a) will, at its own expense, endeavor to collect, as and when due, all amounts due under any of the Collateral as Debtor may deem advisable, and (b) may grant, in the ordinary course of business, to any party obligated on any Collateral, any rebate, refund or allowance to which such party may be lawfully entitled, and may accept, in connection therewith, the return of Goods, the sale or lease of which shall have given rise to such Collateral. The Secured Party, however, may, at any time that an Event of Default exists, whether before or after any revocation of such power and authority or the maturity of any of the Obligations, notify any parties obligated on any of the Collateral to make payment to the Secured Party of any amounts due or to become due thereunder and enforce collection of any of the Collateral by suit or otherwise and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder or evidenced

thereby. Upon the request of the Secured Party during the occurrence and continuance of an Event of Default, Debtor will, at its own expense, notify any or all parties obligated on any of the Collateral to make payment to the Secured Party of any amounts due or to become due thereunder.

Upon request by the Secured Party during the occurrence and continuance of an Event of Default, Debtor will forthwith, upon receipt, transmit and deliver to the Secured Party, in the form received, all cash, checks, drafts and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Secured Party) which may be received by Debtor at any time in full or partial payment or otherwise as proceeds of any of the Collateral. Except as the Secured Party may otherwise consent in writing, any such items which may be so received by Debtor after receipt of the Secured Party’s request pursuant to the preceding sentence, will not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Secured Party until delivery is made to the Secured Party. Debtor will comply with the terms and conditions of any consent given by the Secured Party pursuant to the foregoing sentence.

The Secured Party (or any designee of the Secured Party) is authorized to endorse, in the name of the Debtor, any item, howsoever received by the Secured Party, representing any payment on or other proceeds of any of the Collateral; provided Secured Party shall only be entitled to exercise such authorization upon the occurrence and during the continuance of an Event of Default.

5. Certificates, Schedules and Reports. Debtor will from time to time, as the Secured Party may reasonably request, deliver to the Secured Party such schedules, certificates and reports respecting all or any of the Collateral at the time subject to the security interest hereunder. Any such schedule, certificate or report shall be executed by a duly authorized officer of Debtor and shall be in such form and detail as the Secured Party may specify. Debtor shall immediately notify the Secured Party of the occurrence of any event causing any loss or depreciation in the value of any Collateral which is material to Debtor taken as a whole, and such notice shall specify the amount of such loss or depreciation.

6. Agreements of Debtor. Debtor (a) will deliver such financing statements (and hereby authorizes Secured Party to file any financing statement as Secured Party deems necessary to perfect its security interest in the Collateral) and, upon request of the Secured Party, other documents (and pay the cost of filing or recording the same in all public offices reasonably deemed appropriate by the Secured Party) and do such other acts and things all as the Secured Party may from time to time request to establish and maintain a valid security interest in the Collateral to secure the payment of the Obligations; (b) will keep its Records concerning the Collateral in such a manner as will enable the Secured Party or its designees to determine at any time the status of the Collateral; (c) will furnish to the Secured Party such information concerning Debtor and the Collateral as the Secured Party may from time to time reasonably request; (d) will permit the Secured Party and their designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours to inspect Debtor’s Collateral, and to inspect and audit all Records and other papers in the possession of Debtor

pertaining to the Collateral, and will, upon request of the Secured Party during the existence of a Default, deliver to the Secured Party all of such Records and papers; (e) will promptly pay when due all material license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Collateral; (f) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (g) will keep all of the tangible Collateral in the United States of America; (h) will reimburse the Secured Party for all expenses, including reasonable attorney’s fees and charges, incurred by the Secured Party in seeking to collect or enforce any rights in respect of Debtor’s Collateral; and (i) will not change its Jurisdiction of Organization from that which is in effect on the date hereof without ten (10) days’ prior written notice to Secured Party.

7. Events of Default. Whenever an Event of Default exists, the Secured Party may exercise from time to time any right or remedy available to it under applicable law (provided nothing herein shall limit Secured Party’s ability to exercise any right it may otherwise have under the Promissory Note due to the existence of an Event of Default). Debtor agrees, in case of an Event of Default, to assemble, at its expense, all its Collateral at a convenient place or places acceptable to the Secured Party. Any notification of intended disposition of any of the Collateral required by law shall be deemed reasonably and properly given if given at least ten (10) days before such disposition. Any proceeds of any disposition by the Secured Party of any of the Collateral may be applied by the Secured Party to payment of expenses in connection with the Collateral, including reasonable attorney’s fees and charges, and any balance of such proceeds may be applied by the Secured Party toward the payment of such of the Obligations, and in such order of application, as the Secured Party may from time to time elect.

Notwithstanding the foregoing, the rights and remedies of Secured Party upon an Event of Default are governed by that certain Intercreditor Agreement, dated of even date herewith, executed by Amadeus, Terra, Avanti, and Libra Securities, LLC, a Delaware limited liability company.

8. Additional Agreements of Debtor; Authorization of Secured Party.

(a) Debtor hereby irrevocably appoints Secured Party as its attorney-in-fact and proxy, with full authority in the place and stead of Debtor and in the name of Debtor or otherwise, from time to time in such Secured Party’s discretion, to take any action and to execute any instrument which such Secured Party may deem necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, (i) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any Collateral, (ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper in connection with clause (i) above, (iii) to file any claims or take any action or institute any proceedings which such Secured Party may deem necessary or desirable for the collection of any Collateral or otherwise to enforce the rights of such Secured Party with respect to any Collateral, and (iv) to execute assignments, licenses and other documents to enforce the rights of such Secured Party with respect to any Collateral; provided that such Secured Party agrees not to act as attorney-in-fact and proxy of the Debtor unless an Event of Default is then in existence. This power is coupled with an interest and is irrevocable until all of the Obligations are indefeasibly paid in full.

(b) If Debtor fails to perform any agreement contained herein, the Secured Party may perform, or cause performance of, such agreement or obligation, in the name of Debtor or the Secured Party, and the expenses of the Secured Party incurred in connection therewith shall be payable to the Secured Party on demand and shall be secured by the Collateral.

(c) The powers conferred on the Secured Party hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Secured Party shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral.

(d) Anything herein to the contrary notwithstanding (i) Debtor shall remain liable under all licenses, contracts and otherwise with respect to any of the Collateral to the extent set forth therein to perform all of its obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by the Secured Party of any of their rights hereunder shall not release Debtor from any of its obligations under any licenses, contracts or otherwise in respect of the Collateral, and (iii) the Secured Party shall not have any obligation or liability by reason of this Agreement under any licenses, contracts or with respect to any of the other Collateral, nor shall the Secured Party be obligated to perform any of the obligations or duties of Debtor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

9. Miscellaneous. The Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of any of the Collateral in its possession if it takes such action for that purpose as Debtor requests in writing, but failure of the Secured Party to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of the Secured Party to preserve or protect any right with respect to such Collateral against prior parties, or to do any act with respect to the preservation of such Collateral not so requested by Debtor, shall be deemed of itself a failure to exercise reasonable care in the custody or preservation of such Collateral.

Any notice provided pursuant to this Agreement shall be given in accordance with the notice provisions of the Merger Agreement.

Debtor agrees to pay all expenses, including reasonable attorney’s fees and charges paid or incurred by the Secured Party in endeavoring to collect the Obligations, or any part thereof, and in enforcing this Agreement against Debtor, and such obligations will themselves be Obligations.

No delay on the part of the Secured Party in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Secured Party of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy.

This Agreement shall remain in full force and effect until the Obligations are paid in full in cash or converted in full pursuant to the terms of the Promissory Note. If at any time all or any part of any payment theretofore applied by the Secured Party to any of the Obligations is or must be rescinded or returned by the Secured Party for any reason whatsoever (including the insolvency, bankruptcy or reorganization of Debtor), such Obligations shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Secured Party, and this Agreement shall continue to be effective or be reinstated, as the case may be, as to such Obligations, all as though such application by the Secured Party had not been made.

This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware applicable to contracts made and to be performed entirely within such State, subject, however, to the applicability of the UCC of any jurisdiction in which any Collateral may be located at any given time if required under the UCC. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

The rights and remedies of, and the privileges and actions permitted to be taken hereunder by, the Secured Party may only be undertaken with the unanimous consent of the Secured Party, and no individual Secured Party may exercise any such right or remedy or undertake any such privilege or action without the express consent of the other Secured Party hereunder.

The rights and privileges of the Secured Party hereunder shall inure to the benefit of its successors and assigns.

This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Debtor represents and warrants to the Secured Party that the representations and warranties made by Debtor herein are true and correct.

[remainder of page intentionally left blank;
signature page follows]

IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first written above.


DEBTOR: RCG COMPANIES INCORPORATED
By:	/ s / Marc E. Bercoon
	Name:	Marc E. Bercoon
	Title:	CFO


SECURED PARTY: TERRA NETWORKS ASOCIADAS, S.L.
By:	/ s / Juan Rovira de Osso
	Name:	Juan Rovira de Osso
	Title:	Director


By:	/ s / Antonio Botas Banuelos
	Name:	Antonio Botas Banuelos
	Title:	Director

SCHEDULE 3

FINANCING STATEMENTS

None.

EX-99.5 4 h28046bexv99w5.htm INTERCREDITOR AGREEMENT DATED APRIL 15, 2005 exv99w5

Exhibit 5

INTERCREDITOR AGREEMENT

THIS INTERCREDITOR AGREEMENT (this “Agreement”) is entered into as of April 15, 2005, among AMADEUS AMERICAS, INC. F/K/A AMADEUS NMC HOLDING, INC., a Delaware corporation (“Amadeus”); TERRA NETWORKS ASOCIADAS, S.L., a company organized and existing under the laws of the Kingdom of Spain (“Terra”); AVANTI MANAGEMENT, INC., a Pennsylvania corporation (“Avanti”); and LIBRA SECURITIES, LLC, a Delaware limited liability company (“Libra Securities” and together with Amadeus, Terra and Avanti, each a “Lender,” and collectively, the “Lenders”), and is consented to by RCG COMPANIES INCORPORATED, a Delaware corporation and the maker of each of the Convertible Promissory Notes referenced below (the “Buyer”).

A. The Buyer has executed a Convertible Promissory Note, dated of even date herewith, in favor of each Lender (each, a “Convertible Promissory Note,” and collectively, the “Convertible Promissory Notes”). The present and future obligations of the Buyer under the Convertible Promissory Notes and related Loan Documents (as defined below) are secured by liens in the Collateral (as defined below).

B. The Lenders are entering into this Agreement to establish their relative rights to exercise remedies with respect to such Collateral under the Security Agreements.

Accordingly, for valuable and acknowledged consideration, the Lenders agree as follows:

1. Definitions. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Convertible Promissory Notes or Security Agreements, as the case may be. As used in this Agreement:

“Collateral” means the “Collateral” as defined in the Security Agreements.

“Default” means, any default that entitles any Lender to accelerate the indebtedness under the Promissory Notes or exercise any other remedy under the other Loan Documents, including, without limitation, any “Event of Default” under the Convertible Promissory Notes.

“Loan Documents” means, collectively, the Convertible Promissory Notes and Security Agreements (including, without limitation, the financing statements and other documents and agreements executed or delivered in connection therewith).

“Security Agreements” means, collectively, (a) the Security Agreement, dated of even date herewith, between the Buyer and Amadeus, (b) the Security Agreement, dated of even date herewith, between the Buyer and Terra, (c) the Security Agreement, dated of even date herewith, between the Buyer and Avanti, and (d) the Security Agreement, dated of even date herewith, between the Buyer and Libra Securities.

2. Cooperation. Each Lender agrees that:

(a) such Lender will from time to time promptly provide such information in its possession to the other Lenders as may be reasonably required by such other Lenders for any purpose under the Loan Documents;

(b) such Lender will from time to time consult with the other Lenders in good faith regarding the enforcement of the Lenders’ rights and remedies under the Loan Documents with a

view to recovering amounts due under the Loan Documents in an efficient and cost-effective manner; and

(c) if, after a Default under any of the Loan Documents, such Lender gains access to the Buyer’s property, assets, or financial information pursuant to the exercise of its rights as a secured creditor of the Buyer, such Lender will provide reasonable access to the other Lenders to the extent such Lender may legally do so.

3. Election to Pursue Remedies.

(a) No Lender shall be entitled to enforce any right arising out of any of the Loan Documents except as set forth herein. Each of the Lenders agrees that no Lender will accelerate any obligations owed to it under the Loan Documents (collectively, “Obligations”) unless all other Lenders have agreed to do the same. Each Lender agrees that no Lender shall have any right individually to realize upon any liens granted under such Lender’s Security Agreement or to otherwise enforce or exercise any remedy in respect thereof, it being understood and agreed that such remedies may be exercised only upon the consent of all Lenders. Each Lender further agrees that it shall not individually institute any judicial action pertaining to the Loan Documents or the Collateral or exercise any other remedy pertaining to the Loan Documents or the Collateral, except with the consent of the other Lenders.

(b) No Lender shall take or direct the appropriate trustee or agent to take any and all actions provided for in the Loan Documents relating to the pursuit of remedies, including the foreclosure or disposition of Collateral, unless such actions are authorized as provided in this Section.

(c) Upon the occurrence and during the continuance of any Default, the Lenders shall (i) act together to pursue any remedy or remedies available to the Lenders at law or otherwise, and (ii) vote on whether or not to pursue any such remedies, including whether or not to accelerate any of the Obligations and/or foreclose on or dispose of the Collateral. All Lenders must agree on specific actions to be taken pursuant to this Section.

(d) Upon the consent of all Lenders, the Lenders may take or direct any action provided for in the Loan Documents or proceed to enforce, or direct the enforcement of, the rights or powers provided in the Loan Documents and under applicable law for the benefit of the Lenders and shall give such notice or direction or shall take such action or exercise such right or power hereunder or under any of the Loan Documents incidental thereto as shall be reasonably specified in such instructions and consistent with the terms of the Loan Documents and this Agreement. Such action may include, without limitation, (i) the giving of any notice, approval, consents or waiver that may be called for under the Loan Documents, (ii) the requiring of the execution and delivery of additional Loan Documents, and (iii) employing agents or directing trustees in order to accomplish the actions requested.

4. Certain Enforcement. From and after any acceleration under any Convertible Promissory Note, and in any event prior to the seeking of the appointment of a receiver or receiver-manager or the filing a bankruptcy petition in respect of the Buyer, each Lender agrees to consult and cooperate with the other Lenders in good faith regarding the enforcement of its rights and the rights of the other Lenders with a view to recovering amounts due under the Loan Documents in an efficient and cost-effective manner.

5. Duty of the Lenders. No Lender shall be obligated to follow any instructions of the other Lenders if such instructions conflict with the provisions of this Agreement, any Loan Document, or any

applicable law. Nothing in this Agreement shall impair the right of any Lender in its discretion to take any action to the extent that the consent of any other Lender is not required or to the extent such action is not prohibited by the terms hereof or by the terms of this Agreement or the Loan Documents. In the absence of written instructions from the other Lenders, no Lender shall have a duty to take or refrain from taking any action unless such action or inaction is explicitly required by the terms of this Agreement.

6. Overall Intent. It is the intention of the Lenders that the Lenders shall share in any payments delivered by, and any amounts received in connection with the exercise of any remedies against, the Buyer ratably among the Lenders. In furtherance of the foregoing, each Lender covenants and agrees that the priorities of their respective liens and security interests in the Collateral shall be equal and the Collateral shall secure the Obligations ratably in accordance with the Lenders’ pro rata share thereof. Said priority shall exist and be enforceable irrespective of the time or order of attachment or perfection of any lien or security interest or the time or order of filing of any financing statements or other documents. The lien priority provisions of this Agreement are for the benefit of and shall be enforceable directly by the Lenders.

7. Payments Received By Lenders. If any Lender shall obtain payment of any Obligations from the Buyer through the exercise of any remedy or any other effort to collect amounts due from the Buyer after a Default, then such Lender shall (a) promptly notify the other Lenders, and (b) hold such amounts in trust for the benefit of the Lenders.

8. Pro Rata Treatment. The arrangements contemplated by this Agreement shall apply notwithstanding the time of any demand, any Default, or any acceleration under any Loan Document; the date of execution, delivery, attachment, perfection or registration of any lien or security interest, or the filing of any financing statement in connection therewith; the date of advance of any funds; the date of appointment of any receiver or receiver-manager or bankruptcy trustee or of taking any other enforcement proceedings; the date of obtaining any judgment; the date of notification in respect of any account payable; any provision of applicable governmental rule of any governmental authority or any subdivision thereof; any defense, claim or any right not provided under this Agreement; or the terms of any agreement between any Lender and the Buyer under any other document or instrument between or among such parties, whether or not bankruptcy, receivership or insolvency proceedings shall at any time have been commenced.

9. Bankruptcy Preferences. If any payment actually received by any Lender is subsequently invalidated, declared to be fraudulent or preferential or set aside and is required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state, provincial or federal law, common law, or equitable cause, then each other Lender shall pay to such Lender and/or purchase participations upon demand in an amount equal to a ratable portion of such payment according to the aggregate amounts distributed to all Lenders so that the ratable treatment contemplated hereunder is achieved.

10. Notice of Default. Each of the Lenders shall notify the other Lenders promptly after its giving of notice to the Buyer of the occurrence of a Default.

11. Relationship Between Parties. Nothing in this Agreement may be construed to create a partnership or joint venture between any of the parties to this Agreement. No party to this Agreement has any implied duty under this Agreement to any other party to it.

12. Miscellaneous. Unless stated otherwise: (a) where appropriate (i) the singular number includes the plural and vice versa, and (ii) words of any gender include each other gender; (b) headings and captions may not be construed in interpreting provisions; (c) a communication to a party to this Agreement must be in writing (which may be a facsimile or fax transmission if a facsimile or fax number

is stated for that party and if (without affecting the date the transmission was made) it is confirmed by delivery or mailing under to this provision) to be effective and is deemed given on the day actually delivered or, if mailed, on the third business day after it is properly, addressed to that party and deposited in the appropriate postal service, and, until changed by notice, the address (and facsimile or fax number, if any) for each party is stated beside its name on the signature page(s) of this Agreement; (d) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, AND ITS PERFORMANCE ENFORCED, UNDER DELAWARE LAW AND APPLICABLE FEDERAL LAW; (e) if any part of this Agreement is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable; (f) if either party to this Agreement is required to employ an attorney or attorneys to enforce or defend its rights under this Agreement, the prevailing party may recover reasonable attorneys’ fees; (g) this Agreement represents the final agreement between the parties about the subject matter of this Agreement and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties; (h) no change, waiver, termination, or discharge is valid unless in writing that is signed by the party against whom it is sought to be enforced; (i) this Agreement may not be amended or modified without the prior written consent of all of the Lenders who at such time hold Notes; provided, however, that Section 3(a) and Section 3(d) may not be amended or modified without the prior written consent of all of the Lenders who at such time hold Notes and RCG; (j) the Lenders agree that they shall not enter into any agreement in contravention of or conflicting with the purposes of Section 3(a) and Section 3(d) of this Agreement; and (k) this Agreement may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document.

13. Successors and Assigns. This Agreement binds all parties hereto, and inures to the benefit of the Lenders, and the respective successors and permitted assigns of each, and only those persons and entities may rely upon or raise any defense about this Agreement. No Lender shall assign its rights under the Loan Documents unless such assignee is bound by this Agreement.

14. Termination. This Agreement shall terminate when all Obligations as defined in the Convertible Promissory Notes have been indefeasibly paid in full in cash or converted into common stock of the Buyer in accordance with the terms of the Convertible Promissory Notes.

Remainder of Page Intentionally Blank.
Signature Pages Follow.

EXECUTED as of the date first stated in this Agreement.


AMADEUS AMERICAS, INC. F/K/A AMADEUS NMC HOLDING, INC., a Delaware corporation
By:	/s/ Edna W. Lopez
	Name:	Edna W. Lopez
	Title:	President

Address For Notice:

Amadeus Americas, Inc.

9250 NW 36^th Street

Miami, Florida 33178

Attn: General Counsel

Telephone: (305) 499-6500

Facsimile: (305) 499-6939


TERRA NETWORKS ASOCIADAS, S.L., a company organized and existing under the laws of the Kingdom of Spain
By:	/s/ Juan Rovira de Osso
	Name:	Juan Rovira de Osso
	Title:	Director


By:	/s/ Antonio Botas Banuelos
	Name:	Antonio Botas Banuelos
	Title:	Director

Address For Notice:

Terra Networks Asociadas, S.L.

Via De Las Dos Castillas

33 Complejo Atica

Edificio 1

Pozuelo De Alarcon

28223 Madrid Spain

Attn.: General Counsel

Telephone: (34) 91-452-3000

Facsimile: (34) 91-452-3042

Signature Page to Intercreditor Agreement


AVANTI MANAGEMENT, INC., a Pennsylvania corporation
By:	/s/ Michael Thomas
	Name:	Michael Thomas
	Title:	Pres & CEO

Address For Notice:

Avanti Management, Inc.

2000 Miller Road

Spinnerstown, Pennsylvania 18968

Telephone: (215) 853-2514

Facsimile: (484) 229-0277


LIBRA SECURITIES, LLC, a Delaware limited liability company
By:	/s/ Robert G. Morrish
	Name:	Robert G. Morrish
	Title:	Executive Vice President

Address For Notice:

Libra Securities, LLC

630 Fifth Avenue

Suite 1919

New York, New York 10111

Attention: Frank Sena

Telephone: (212) 332-4150

Facsimile: (212) 322-4155

With a copy to:

Libra Securities, LLC

11766 Wilshire Blvd., Suite 870

Los Angeles, California 90025

Attention: General Counsel

Telephone: (310) 312-5600

Facsimile: (310) 312-5640

Signature Page to Intercreditor Agreement

Acknowledged and agreed as of the date first written above.


RCG COMPANIES INCORPORATED, a Delaware corporation
By:	/s/ Marc E. Bercoon
	Name:	Marc E. Bercoon
	Title:	CFO

Address For Notice:

RCG Companies Incorporated

6836 Morrison Blvd.

Suite 220

Charlotte, North Carolina 28211

Attn.: Executive Vice President

Telephone: (704) 366-5054

Facsimile: (704) 366-5056

with a copy to:

Katten Muchin Zavis Rosenman

525 W. Monroe

Chicago, Illinois 60661-3693

Attn.: Matthew S. Brown, Esq.

Telephone: (312) 902-5207

Facsimile: (312) 218-7869

Signature Page to Intercreditor Agreement

-----END PRIVACY-ENHANCED MESSAGE-----

	(a)		Optional Payment in Cash or Conversion. Upon written notice delivered not less than thirty (30) days prior to the Maturity Date, the Lender may require in its sole discretion that the Principal Amount of this Note shall be (i) paid by the Corporation at the Maturity Date by wire transfer of immediately available funds to an account designated by the Lender without presentment or notation of payment, or (ii) subject to the provisions of Section 3(f) below, converted into Common Stock pursuant to the terms set forth in Section 3(b) below upon surrender of this Note to the Corporation (a “Conversion”). In the event that such written notice is not delivered in accordance with this Section 3(a), at the Maturity Date, a Conversion of this Note shall automatically occur.

	(b)		Computation of the Number of Shares of Common Stock upon Conversion. In the event of a Conversion, as of the Maturity Date, the Lender shall receive a number of fully paid and non-assessable shares of Common Stock, equal to the amount computed by dividing (i) the Principal Amount by (ii) the Conversion Price (the “Conversion Shares”). Notwithstanding the foregoing, the Corporation shall not issue any fractional shares upon any conversion hereunder. If the conversion would result in the issuance of a fraction of a Conversion Share less than 0.5, the Corporation shall round such fraction of a Conversion Share down to the nearest whole Conversion Share. If the conversion would result in the issuance of a fraction of a Conversion Share equal to or greater than 0.5, the Corporation shall round such fraction of a Conversion Share up to the nearest whole Conversion Share.

	(c)		Notices. In the event of a Conversion, prior to or upon the Maturity Date, the Corporation shall give written notice to the Lender setting forth the Lender’s Principal Amount and the number of Conversion Shares to be received.

	(d)		Note Conversion Deliveries. In the event of a Conversion, on the Maturity Date, the following shall occur:

	(i)		the Lender shall surrender its originally executed Note to the Corporation, and such Note shall be deemed canceled;

	(ii)		the Corporation shall deliver to the Lender a certificate or certificates representing the number of shares of Common Stock, issuable by reason of such conversion and computed in accordance with Section 3(b) above, in such name or names and such denomination or denominations as the Lender has specified; and

	(e)		Issuance Taxes. The issuance of certificates for Common Stock upon such conversion shall be made without charge to the Lender for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issuance of Conversion Shares (but excluding any income or similar taxes attributable to the Lender). Upon such conversion, the Corporation shall take all such actions as are necessary in order to insure that the Conversion Shares issuable with respect to such Conversion shall be validly issued, fully paid and nonassessable. Upon such conversion, the Lender shall be entitled to the same rights and benefits accorded to the other holders of Common Stock.

	(f)		Limitation on Number of Shares Issuable Hereunder. The Corporation shall not be obligated to issue any Conversion Shares unless the Corporation obtains approval by the Corporation’s stockholders of the Corporation’s issuance of all of the Conversion Shares. In the event that upon any Conversion of this Note the Lender shall not be permitted to receive all of the Conversion Shares otherwise issuable to the Lender due to the provisions of this Section 3(f), the Corporation shall pay the remaining Principal Amount of this Note at the Maturity Date in cash by wire transfer of immediately available funds. At the next meeting of the Corporation’s stockholders, the Corporation will seek the approval by the stockholders of Lender’s ability to convert the Note into all the Conversion Shares and the Corporation’s Board of Directors shall recommend such approval.

	(a)		“Business Day” shall mean a day other than Saturday, Sunday or a public holiday on which banks are closed under the laws of the State of New York.

	(b)		“Common Stock” shall mean shares of the Corporation’s common stock, $0.04 par value per share.

	(c)		“Conversion Price” shall initially be $0.6875. In the event that the conversion price of the Series C Convertible Preferred Stock of the Corporation is adjusted to the Reset Amount pursuant to Section 6(f)(ii) of the Series C Certificate of Designations as a consequence of the Reverse Stock Split, then at such time the Conversion Price shall automatically adjust to an amount equal to 125% of the conversion price of the Series C Preferred Stock of the Corporation as adjusted to reflect the Reset Amount; provided, however, that the Lender will be entitled to the benefit of this adjustment to the Conversion Price only if the Lender delivers to the Corporation no later than fourteen (14) days following the date of issuance of this Note an agreement in writing confirming that neither it nor any Person acting on its behalf or pursuant to any understanding with it has or will engage in or close out any transactions in the securities of the Corporation (including Short Sales) from the date hereof through the earlier of (i) the Business Day following the Reset Period, or (ii) 270 days from the date hereof; provided, further, that the Corporation shall notify the Lender in writing within one (1) Business Day should any such adjustment occur. In addition, the Conversion Price and the amount and kind of securities issuable upon conversion of this Note shall be subject to adjustment from time to time in accordance with the provisions of this Section 16(c).

(e)		“Person” shall mean any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated association, corporation or other entity or any government entity.

(f)		“Reset Amount” shall have the meaning set forth in the Series C Certificate of Designations.

	(g)		“Reset Period” shall have the meaning set forth in the Series C Certificate of Designations.

	(h)		“Reverse Stock Split” shall have the meaning set forth in the Series C Certificate of Designations.

	(i)		“Securities Act” shall mean the Securities Act of 1933, as amended, or any similar federal law then in force.

	(j)		“Series C Certificate of Designations” shall mean the Certificate of Designations of the Corporation with respect to the Series C Preferred Stock of the Corporation.

	(k)		“Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps, and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated holders.


RCG COMPANIES INCORPORATED
By:	/s/ Marc E. Bercoon
	Name:	Marc E. Bercoon
	Its: CFO