SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of April ___, 2005,
is among RCG Companies Incorporated, a Delaware corporation (together with its
successors and assigns, "Debtor"), and [Amadeus Americas, Inc. f/k/a Amadeus NMC
Holding, Inc., a Delaware corporation] [Terra Networks Asociadas, S.L., a
company organized and existing under the laws of the Kingdom of Spain] [Avanti
Management, Inc., a Pennsylvania corporation] [Libra Securities, LLC, a Delaware
limited liability company] ("Secured Party").
W I T N E S S E T H:
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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");
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(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;
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(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.
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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 ________.
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.
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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.
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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.
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(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.
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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.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first written above.
DEBTOR:
RCG COMPANIES INCORPORATED
By:
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Name:
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Title:
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SECURED PARTY:
[TERRA NETWORKS ASOCIADAS, S.L.]
By:
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Name:
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Title:
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[AMADEUS AMERICAS, INC. f/k/a AMADEUS NMC HOLDING, INC.]
By:
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Name:
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Title:
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[AVANTI MANAGEMENT, INC.]
By:
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Name:
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Title:
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[LIBRA SECURITIES, LLC]
By:
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Name:
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Title:
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SCHEDULE 3
FINANCING STATEMENTS
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None.