EXHIBIT 4.7
INTER-CREDITOR AGREEMENT
This INTER-CREDITOR AGREEMENT (this "Agreement') is made and effective as
of February 8, 2005, by and among RCG Companies Incorporated, a Delaware
corporation (the "Company" or the "Debtor"), the purchasers signatory to the
Security Purchase Agreement (the "Purchase Agreement"), dated as of February 8,
2005, by and among the Company and the purchasers (the "Purchasers") and JGB
Capital L.P. ("JGB" and collectively, the Purchasers and JGB shall be referred
to herein as the "Creditors").
RECITALS
WHEREAS, the Debtor and the Purchasers have executed that certain Purchase
Agreement and any and all subsequent amendments and waivers thereto, for the
purchase of Secured Convertible Debentures, due February 8, 2007 (the
"Debentures") and Common Stock Purchase Warrants (the "Warrants");
WHEREAS, payments are to be made to the Creditors by Debtor pursuant to
the Debentures (as defined in the Purchase Agreement), which such Debentures are
secured by certain Security Agreements by and between the Debtor and Creditors
and dated as of the date hereof;
WHEREAS, the Creditors wish to memorialize their agreement concerning
their respective rights, duties and obligations to one another with respect to
the Purchase Agreement, the Debentures and Transaction Documents (as defined in
the Purchase Agreement); and
WHEREAS, ALL CAPITALIZED TERMS NOT OTHERWISE DEFINED HEREIN SHALL HAVE
THEIR RESPECTIVE MEANINGS AS SET FORTH IN THE PURCHASE AGREEMENT.
NOW, THEREFORE, in consideration of the mutual covenants herein, their
respective performances and benefits pertaining to the Purchase Documents, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Payment of Obligations and Expenses.
1.1. The parties agree that the payment of all amounts due under the
Debentures and all expenses related to such Transaction Documents shall be
shared in proportion to the amount owed to each Creditor pursuant to their
Debenture. To the extent that any party receives a Debenture payment in excess
of the payment amount due to such party pursuant to such party's Debenture, the
other parties shall immediately be notified and such excess amounts shall be
paid to such parties on a pro-rata basis.
1.2 If an Event of Default occurs and any party hereto receives payment
from the Company, the other parties hereto shall be immediately notified and
such payment shall be shared with all of the other Creditors on a pro-rata
basis.
1
EXHIBIT 4.7
1.3 If an Event of Default occurs and any party hereto collects proceeds
pursuant to its rights under the Security Agreements, the other parties shall be
immediately notified and such proceeds shall be shared with the other Creditors
on a pro-rata basis.
1.4 The Company agrees it shall treat each of the Creditors on a pari
passu basis, without preference or priority of any kind over one another,
including in the event of a bankruptcy, and without regard to perfection or
order of priority of the Creditors.
2. Indemnification by the Debtor. The Debtor shall indemnify, defend, and hold
harmless the Creditors against and in respect of any and all liability, claims,
demands, losses, costs, expenses, obligations, liabilities, damages, recoveries,
and deficiencies, including interest, penalties, and reasonable professional and
attorney's fees, including those arising from settlement negotiations, that the
Creditors shall incur or suffer, which arise, result from, or relate to any
breach of, or failure by the Debtor to perform, any of the Debtor's
representations, warranties, covenants, or agreements in this Agreement or in
any schedule, certificate, exhibit or other instrument furnished or to be
furnished by the Debtor under this Agreement.
3. Indemnification by Each Creditor. Each Creditor (the "Indemnifying Creditor")
shall indemnify, defend, and hold harmless each of the other Creditors (the
"Indemnified Creditors") against and in respect of any and all liability,
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries, and deficiencies, including interest, penalties, and reasonable
professional and attorney's fees, including those arising from settlement
negotiations, that such Indemnified Creditors shall incur or suffer, which
arise, result from, or relate to any breach of, or failure by the Indemnifying
Creditor to perform, any of Indemnifying Creditor's representations, warranties,
covenants, or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by the Indemnifying
Creditor under this Agreement.
4. Miscellaneous.
4.1 Assignment. The rights and obligations of the parties under this
Agreement may not be assigned or assumed without the written consent of
all parties. Any attempt to transfer same shall be void ab initio.
4.2 Binding Effect. This Agreement shall be binding on, and shall inure to
the benefit of, the parties to it and their respective heirs, legal
representatives, and successors.
4.3 Parties in Interest. Except as expressly provided in this Agreement,
nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties to it and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to
this Agreement, nor shall any provision give any third persons any right
to subrogation or action over against any party to this Agreement.
2
EXHIBIT 4.7
4.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties.
4.5 Amendment. No supplement, modification, or amendment of this Agreement
shall be binding unless executed in writing by all the parties.
4.6 Waiver. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or
not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver.
4.7 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via facsimile
at the facsimile number specified on the signature page prior to 4:00 p.m.
(New York City time) on a business day and an electronic confirmation of
delivery is received by the sender, (b) the next business day after the
date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section on a day that
is not a business day or later than 4:00 p.m. (New York City time) on any
business day, (c) three business days following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, or (d) upon
actual receipt by the party to whom such notice is required to be given.
The addresses for such notices and communications are those set forth on
the signature pages hereof, or such other address as may be designated in
writing hereafter, in the same manner, by such Person.
4.9 Governing Law and Venue. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of New York, and
any action or proceeding, including arbitration, brought by any party in
which this Agreement is a subject, shall be brought in New York County,
New York.
4.10 Effect of Headings. The headings of the Sections of this Agreement
are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
4.11 Invalidity. Any provision of this Agreement which is invalid, void,
or illegal, shall not affect, impair, or invalidate any other provision of
this Agreement, and such other provisions of this Agreement shall remain
in full force and effect.
4.12 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.13 Number and Gender. When required by the context of this Agreement,
each number (singular and plural) shall include all numbers, and each
gender shall include all genders.
3
EXHIBIT 4.7
4.14 Joint and Several Liability. In the event either party now or
hereafter shall consist of more than one person, firm, or corporation,
then and in such event, all such persons, firms or corporations shall be
jointly and severally liable as parties under this Agreement.
4.15 Further Assurances. Each party to this Agreement agrees to execute
further instruments as may be necessary or desirable to carry out this
Agreement, provided the party requesting such further action shall bear
all related costs and expenses.
4.16 Professional Fees and Costs. If any legal or equitable action,
arbitration, or other proceeding, whether on the merits or on motion, are
brought or undertaken, or an attorney retained, to enforce this Agreement,
or because of an alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, then the
successful or prevailing party or parties in such undertaking (or the
party that would prevail if an action were brought) shall be entitled to
recover reasonable attorney's fees and other professional fees and other
costs incurred in such action, proceeding, or discussions, in addition to
any other relief to which such party may be entitled. The parties intend
this provision to be given the most liberal construction possible and to
apply to any circumstances in which such party reasonably incurs expenses.
4.17 Effectiveness. This Agreement shall be dated and effective upon
execution of this Agreement (or one or more of its counterparts) by all of
the parties.
4
EXHIBIT 4.7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
RCG COMPANIES INCORPORATED
By:__________________________________________
Name:
Title:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR CREDITORS FOLLOWS]
5
EXHIBIT 4.7
[SIGNATURE PAGE OF CREDITORS TO rcg INTERCREDITOR AGREEMENT]
Name of Creditor: ____________________________________
Signature of Authorized Signatory of Creditor: ____________________________
Name of Authorized Signatory: _____________________________________________
Title of Authorized Signatory: ____________________________________________
[SIGNATURE PAGES CONTINUE]
6