8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

to

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 12, 2015 (November 6, 2015)

RCS Capital Corporation

(Exact Name of Registrant as Specified in its Charter)

Delaware	001-35924	38-3894716
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

405 Park Avenue, 14th Floor

New York, New York 10022

(Address, including zip code, of Principal Executive Offices)

Registrant’s telephone number, including area code: (866) 904-2988

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement.

RCAP Holdings Note Purchase and Class B Share Agreement

As previously announced, on November 8, 2015, RCS Capital Corporation (the “Company”) entered into a Note Purchase and Class B Share Agreement (the “RCAP Holdings NPA”) with RCAP Holdings, LLC (“RCAP Holdings”) to issue to RCAP Holdings a senior unsecured promissory note in the aggregate principal amount of $12 million (the “RCAP Holdings Note”). The RCAP Holdings Note was funded and issued on November 9, 2015.

The RCAP Holdings Note bears interest at a rate of 12% per annum with interest payable quarterly in cash or in kind at the Company’s election (the amendments to the first and second lien credit agreements of the Company described below allow for the payment in kind only). The RCAP Holdings Note matures on November 1, 2021. The Company may prepay the RCAP Holdings Note in whole or in part at any time on or prior to July 31, 2016. At RCAP Holding’s election, the RCAP Holdings Note is exchangeable into securities of the Company issuable in a future financing from a third party resulting in net proceeds to the Company or its subsidiaries of at least $175 million (the “New Securities”), subject to certain conditions. On or prior to July 31, 2016, the Company may purchase the New Securities at a purchase price equal to the principal amount of the RCAP Holdings Note plus accrued interest.

Pursuant to the Company’s charter, the holder of the single outstanding share of its Class B common stock (the “Class B Share”) is entitled to one vote more than the votes of the Company’s outstanding Class A common stock. RCAP Holdings is the current holder of the Class B Share. In connection with the issuance of the RCAP Holdings Note, RCAP Holdings granted to a special committee of the Company’s board of directors, comprised of certain independent directors, a proxy to vote the Class B Share, subject to certain limitations, on any two “Class B Specified Matters” (and any related transactions). The “Class B Specified Matters” are (i) any disposal of all or substantially all the Company’s assets, or any consolidation, merger or entry into a business combination by the Company with a third person, (ii) any authorization of a new class or series of capital stock or additional shares of capital stock, or reclassification or alteration of the terms of any class or series of capital stock, or any issuance of capital stock or other equity securities (including the right to acquire capital stock or other equity securities) by the Company, and (iii) any amendment or modification to the certificate of incorporation or bylaws of the Company in connection with any matters set forth in clauses (i) and (ii) above. The special committee is only permitted to use the proxy with respect to a transaction in which the RCAP Holdings Note is repaid (including all accrued and outstanding interest) upon consummation of such transaction and with respect to one other matter, in connection with a transaction that results in net proceeds to the Company of up to $80 million. The proxy is valid until January 31, 2016; however, if the Company enters into a definitive agreement with respect to a Class B Specified Matter prior to January 31, 2016, the term of the proxy will be automatically extended until June 30, 2016. The Proxy is subject to the rights and remedies of the collateral agent under the first and second lien credit agreements of the Company and will terminate upon the occurrence of an event of default and receipt of a notice of the exercise of remedies by the collateral agent.

The RCAP Holdings NPA prohibits RCAP Holdings from taking certain actions with respect to the Class B Share, including voting, pledging, transferring or interfering with the performance of RCAP Holding’s obligations under the RCAP Holdings NPA. Until July 31, 2016, the Company has the right to repurchase the Class B Share for $1, provided that (i) the RCAP Holdings Note or the New Securities are redeemed in full by the Company for an amount equal to the principal amount of the RCAP Holdings Note and accrued interest, and (ii) other conditions (including the release of RCAP Holdings and RCS Capital Management, LLC from their obligations as a guarantor under the credit agreements of the Company) are satisfied.

The RCAP Holdings NPA gives RCAP Holdings the right to nominate one director to the board, who will initially be Edward M. Weil, Jr. Mr. Weil is currently a director and the chief executive officer of the Company. This right will be extinguished if RCAP Holdings or its affiliates no longer have beneficial ownership of the Class B Share.

This summary of the material terms of the RCAP Holdings NPA is not intended to be complete and is qualified in its entirety by reference to the RCAP Holdings NPA, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Luxor Note Purchase Agreement

As previously announced, on November 8, 2015, the Company entered into a Note Purchase Agreement (the “Luxor NPA”) with Luxor Capital Partners, LP (“Luxor”) and its affiliates (collectively, the “Luxor Investors”) to issue to the Luxor Investors senior unsecured promissory notes in the aggregate principal amount of $15 million (the “Luxor Notes”). The Luxor Notes were funded and issued on November 9, 2015.

The Luxor Notes bear interest at a rate of 12% per annum with interest payable quarterly in cash or in kind at the Company’s election (the amendments to the first and second lien credit agreements of the Company described below allow for the payment in kind only). The Luxor Notes mature on November 1, 2021. At the Luxor Investors’ election, the Luxor Notes are exchangeable, under the same circumstances as the RCAP Holdings Note, into the New Securities, subject to certain conditions.

This summary of the material terms of the Luxor NPA is not intended to be complete and is qualified in its entirety by reference to the Luxor NPA, a copy of which is attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.

Series D-1 Shares Agreement

As previously announced, on November 8, 2015, the Company entered into the Series D-1 Shares Agreement (the “Series D-1 Shares Agreement”) with AR Capital, LLC (“AR Capital”). On November 9, 2015, AR Capital acquired 1,000,000 shares of the Company’s 11% Series D-1 Convertible Preferred Stock (the “Series D-1 Shares”) from Apollo Principal Holdings I, L.P.

The Series D-1 Shares Agreement granted to a special committee of the Company’s board of directors, comprised of certain independent directors, a proxy to vote the Series D-1 Shares, subject to certain limitations, on any of the “Series D-1 Specified Matters” (and any related transactions) to the extent the Series D-1 Shares are entitled to vote on such matters pursuant to the certificate of designation authorizing the Series D-1 Shares. The Series D-1 Specified Matters are: (i) any consolidation, merger or entry into a business combination by the Company with a third person, (ii) any authorization of a new class or series of capital stock or additional shares of capital stock, or reclassification or alteration of the terms of any class or series of capital stock, or any issuance of capital stock or other equity securities (including the right to acquire capital stock or other equity securities) by the Company, and (iii) any amendment or modification to, or waiver of, the certificate of incorporation or any certificate of designation of the Company in connection with any matters set forth in clauses (i) and (ii) above. With respect to any such matter (and any related transactions or series of transactions or otherwise), each Series D-1 Share shall be treated in the same manner as each other preferred stock of the Company ranking on a parity with Series D-1 Shares. The proxy is valid until January 31, 2016; however, if the Company enters into a definitive agreement with respect to a Series D-1 Specified Matter prior to January 31, 2016, the term of the proxy will be automatically extended until June 30, 2016.

The Series D-1 Shares Agreement prohibits AR Capital from taking certain actions with respect to the Series D-1 Shares, including voting, pledging, transferring or interfering with the performance of AR Capital’s obligations under the Series D-1 Shares Agreement.

This summary of the material terms of the Series D-1 Shares Agreement is not intended to be complete and is qualified in its entirety by reference to the Series D-1 Shares Agreement, a copy of which is attached as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.

Amended and Restated Membership Interest Purchase Agreement and Release

As previously announced, on November 8, 2015, Apollo Management Holdings, L.P. (“Apollo”), the Company and RCS Capital Holdings, LLC (“Holdings”) entered into an Amended and Restated Membership Interest Purchase Agreement (the “A&R MIPA”) to amend and restate the Membership Interest Purchase Agreement, dated August 6, 2015, as amended (the “MIPA”), among Apollo, the Company and Holdings.

The entry into and material terms of the MIPA were disclosed in the Company’s Current Report on Form 8-K filed August 12, 2015, and the entry into and the material terms of Amendment No. 1 to the MIPA were disclosed in the Company’s Current Report on Form 8-K filed August 20, 2015.

Under the A&R MIPA, the Company will sell its wholesale distribution business, including Realty Capital Securities, LLC and Strategic Capital Management Holdings, LLC (“StratCap”), to Apollo for $6 million in cash, of which $5 million is the purchase price for StratCap, subject to certain purchase price adjustments. The Company’s transfer agent and transaction management businesses and the transfer of certain Company employees to Apollo will not be part of the amended transaction. The amended transaction will no longer be conditioned on the closing of a transaction between Apollo and certain affiliates of AR Capital. The amended transaction is expected to close by January 15, 2016 and, in the case of StratCap, may be consummated at a later date subject to satisfaction of applicable conditions.

In connection with the A&R MIPA, pursuant to a Release, dated November 8, 2015 (the “Release”), the Company agreed to indemnify AR Capital, certain principals of AR Capital and certain other related parties, including affiliates thereof (the “ARC Related Parties”) against liabilities arising from the amendment of the terms of the MIPA. In addition, the ARC Related Parties, the Company, Holdings and Luxor each released one another from certain claims and liabilities related to, among other things, the termination of the August 2015 transaction among Apollo and ARC Related Parties and the entry into the A&R MIPA.

This summary of the material terms of the A&R MIPA and Release is not intended to be complete and is qualified in its entirety by reference to the A&R MIPA and Release, copies of which are attached as Exhibits 2.1 and 10.4 to this Current Report on Form 8-K and incorporated herein by reference.

Amendments to Secured Credit Facilities

As previously announced, on November 8, 2015, the Company entered into Amendment No. 2 (the “First Lien Amendment”) to the First Lien Credit Agreement, dated as of April 29, 2014, as amended, with Barclays Bank PLC, as administrative agent and collateral agent, and the other lenders party thereto, and Amendment No. 2 (the “Second Lien Amendment” and, together with the First Lien Amendment, the “Amendments”) to the Second Lien Credit Agreement, dated as of April 29, 2014, as amended, with Bank of America, N.A., as administrative agent and collateral agent, and the other lenders party thereto.

The Amendments allow the Company to, among other things, upon satisfaction of certain conditions, incur the Luxor Notes and the RCAP Holdings Note, repay the RCAP Holdings Note from the proceeds of a future financing, and repurchase the Class B Share pursuant to the RCAP Holdings NPA as described above. In addition, the Amendments provide, among other things, that (i) the Fixed Charge Coverage Ratio and the Secured Leverage Ratio (as defined in the first and second lien credit agreements) will not be tested for the test period ending as of September 30, 2015, (ii) subject to the satisfaction of certain conditions, the Company may incur certain additional subordinated indebtedness not exceeding $75 million (inclusive of the RCAP Holdings Note and the Luxor Notes) and (iii) subject to the satisfaction of certain conditions, the Company may sell or dispose of Hatteras Funds, LLC, Docupace Technologies, LLC and DirectVest LLC without satisfying certain cash consideration and fair-market-value conditions.

This summary of the material terms of the Amendments is not intended to be complete and is qualified in its entirety by reference to the Amendments, copies of which are attached as Exhibits 10.5 and 10.6 to this Current Report on Form 8-K and incorporated herein by reference.

Agreement with Edward M. Weil, Jr.

On November 8, 2015, in consideration for Edward M. Weil, Jr.’s service as chief executive officer of the Company without compensation (other than reimbursement of expenses in accordance with Company policy), among other things, (i) the Company, RCAP Holdings and Mr. Weil, released one another from any claims arising from Mr. Weil’s service as chief executive officer of the Company and any allegation that RCAP made available such services to RCAP (the “Initial Release”), and (ii) the Company further agreed to provide Mr. Weil with a second release, substantially in the form of the Initial Release, following the termination of his service as chief executive officer of the Company for any reason (including as a result of his resignation) subject to his service having been performed in a manner that is reasonably consistent with the reasonable directions of the board of directors of the Company and its chairman.

This summary of the material terms of the agreement and Initial Release is not intended to be complete and is qualified in its entirety by reference to the agreement and Initial Release, copies of which are attached as Exhibit 10.7 to this Current Report on Form 8-K and incorporated herein by reference.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On November 10, 2015, the Company was notified by the New York Stock Exchange (the “NYSE”) that it was not in compliance with the continued listing standards set forth in Section 802.01C of the NYSE Listed Company Manual because the average closing price of the Company’s Class A Common Stock was less than $1.00 over a consecutive 30 trading-day period.

The Company anticipates it will notify the NYSE within 10 business days of its receipt of the notification that it intends to cure the deficiency and to return to compliance with the NYSE continued listing requirement. The Company can avoid delisting if, during the six-month period following receipt of the NYSE notice, on the last trading-day of any calendar month, the Company’s Class A Common Stock has a closing share price of at least $1.00 and an average closing share price of at least $1.00 over the 30 trading-day period ending on the last trading day of that month. The Company intends to consider available options in order to cure the stock price deficiency and return to compliance with the NYSE continued listing requirement. These include various strategic alternatives that the Company is currently exploring, as previously disclosed.

Under the NYSE rules, the Company’s Class A Common Stock will continue to be traded on the NYSE during this period, subject to the Company’s compliance with other continued listing requirements. The NYSE notification does not affect the Company’s business operations or its Securities and Exchange Commission (“SEC”) reporting requirements.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Resignation of Anthony Civale and Marc Rowan as Directors

Anthony Civale resigned as a member of the board of directors of the Company and the executive committee of the board of directors, effective November 6, 2015. Marc Rowan resigned as a member of the board of directors and the nominating and corporate governance committee of the board of directors, effective November 6, 2015. Messrs. Civale’s and Rowan’s resignations did not result from a disagreement with the Company or the board of directors and therefore disclosure under Item 5.02(a) of Form 8-K is not required.

Appointment of Michael W. Conboy as Director and Executive Committee Member

On November 8, 2015, the board of directors of the Company appointed Michael W. Conboy, previously a board observer appointed by Luxor as the holder of the Company’s 7% Series C Convertible Preferred Stock, to serve as a member of the board of directors and the executive committee of the board of directors for a term expiring upon the earlier of (i) the next annual meeting of the stockholders of the Company and until his successor is duly elected and qualified or (ii) his death, removal or resignation.

Mr. Conboy is a Partner and Director of Research of Luxor. On April 29, 2014, Luxor entered into an agreement (the “Securities Purchase Agreement”) to purchase the Company’s 7% Series A Convertible Preferred Stock (“Series A Preferred Stock”) and 5% Convertible Senior Notes due 2021 and the related Put & Call Agreement, each disclosed in the Form 8-K filed with the SEC on May 2, 2014. On June 10, 2014, Luxor purchased Class A Common Stock of the Company pursuant to the Amendment to the Securities Purchase Agreement disclosed in the Form 8-K filed with the SEC on June 12, 2014. On December 12, 2014, Luxor entered into an agreement to exchange its Series A Preferred Stock for the Company’s 11% Series B Preferred Stock and 7% Series C Convertible Preferred Stock disclosed in the Form 8-K filed with the SEC on December 18, 2014. On August 6, 2015, Luxor entered into an agreement to purchase the Company’s 11% Series D-2 Convertible Preferred Stock and an agreement to receive Class A Common Stock of the Company in consideration for the termination of the Services Agreement, pursuant to which RCS Capital Management LLC served as service provider to the Company and Holdings, and its rights under the Put & Call Agreement disclosed in Note 21 to the Financial Statements included in the Form 10-Q for the quarter ended June 30, 2015 filed with the SEC on August 11, 2015. On November 8, 2015 and November 9, 2015, Luxor engaged in the transactions between Luxor and the Company described in response to Item 1.01 of this Current Report on Form 8-K.

Item 7.01 Regulation FD Disclosure

As required by Section 802.01C of the NYSE Listed Company Manual, the Company issued a press release on November 12, 2015, announcing that it had received the notice of noncompliance with the NYSE’s continued listing standard, a copy of which is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated by reference herein.

The information furnished under this Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”), as amended, or otherwise subject to the liabilities of that Section. The information in this Item 7.01, including Exhibit 99.1, shall not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act regardless of any general incorporation language in such filing.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.	Description
2.1†	Amended and Restated Membership Interest Purchase Agreement, dated as of November 8, 2015, among RCS Capital Corporation, RCS Capital Holdings, LLC and Apollo Management Holdings, L.P.
10.1†	Note Purchase and Class B Share Agreement, dated as of November 8, 2015, between RCS Capital Corporation and RCAP Holdings, LLC
10.2†	Note Purchase Agreement, dated as of November 8, 2015, among Luxor Capital Partners, LP and its affiliates and RCS Capital Corporation
10.3	Series D-1 Shares Agreement, dated as of November 8, 2015, between AR Capital, LLC and RCS Capital Corporation
10.4†	Release, dated as of November 8, 2015, among AR Capital, LLC, certain principals of AR Capital, LLC, RCS Capital Corporation, RCS Capital Holdings, LLC and Luxor Capital Partners, LP
10.5†	Amendment No. 2, dated as of November 8, 2015, to the First Lien Credit Agreement, dated as of April 29, 2014, among RCS Capital  Corporation, as borrower, Barclays Bank PLC, as administrative agent and collateral agent,  and the other lender and guarantor parties thereto

10.6†	Amendment No. 2, dated as of November 8, 2015, to Second Lien Credit Agreement, dated as of April 29, 2014, among RCS Capital  Corporation, as borrower, Bank of America, N.A., as administrative agent and collateral agent,  and the other lender and guarantor parties thereto
10.7	Agreement, dated November 8, 2015, between RCS Capital Corporation and Edward M. Weil, Jr.
99.1	Press Release dated November 12, 2015

† Pursuant to item 601(b)(2) of Regulation S-K, the Company agrees to furnish supplementary a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	RCS Capital Corporation
Date: November 12, 2015	By:	/s/ EDWARD M. WEIL, JR.
		Edward M. Weil, Jr.
		Chief Executive Officer and Director

EXHIBIT INDEX

Exhibit No.	Description
2.1†	Amended and Restated Membership Interest Purchase Agreement, dated as of November 8, 2015, among RCS Capital Corporation, RCS Capital Holdings, LLC and Apollo Management Holdings, L.P.
10.1†	Note Purchase and Class B Share Agreement, dated as of November 8, 2015, between RCS Capital Corporation and RCAP Holdings, LLC
10.2†	Note Purchase Agreement, dated as of November 8, 2015, among Luxor Capital Partners, LP and its affiliates and RCS Capital Corporation
10.3	Series D-1 Shares Agreement, dated as of November 8, 2015, between AR Capital, LLC and RCS Capital Corporation
10.4†	Release, dated as of November 8, 2015, among AR Capital, LLC, certain principals of AR Capital, LLC, RCS Capital Corporation, RCS Capital Holdings, LLC and Luxor Capital Partners, LP
10.5†	Amendment No. 2, dated as of November 8, 2015, to the First Lien Credit Agreement, dated as of April 29, 2014, among RCS Capital  Corporation, as borrower, Barclays Bank PLC, as administrative agent and collateral agent,  and the other lender and guarantor parties thereto
10.6†	Amendment No. 2, dated as of November 8, 2015, to Second Lien Credit Agreement, dated as of April 29, 2014, among RCS Capital  Corporation, as borrower, Bank of America, N.A., as administrative agent and collateral agent,  and the other lender and guarantor parties thereto
10.7	Agreement, dated November 8, 2015, between RCS Capital Corporation and Edward M. Weil, Jr.
99.1	Press Release dated November 12, 2015

† Pursuant to item 601(b)(2) of Regulation S-K, the Company agrees to furnish supplementary a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.

EX-2.1

Exhibit 2.1 

EXECUTION VERSION

AMENDED AND RESTATED

MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

RCS CAPITAL CORPORATION,

RCS CAPITAL HOLDINGS, LLC

and

APOLLO MANAGEMENT HOLDINGS, L.P.

Dated as of November 8, 2015

TABLE OF CONTENTS

		Page
Article I Transaction		5
1.1	Purchase and Sale	5
1.2	The Closing	6
1.3	Closing Deliveries	6
1.4	Withholding	6
1.5	StratCap Carve-Out	7
1.6	Post-Closing True-Up	8
Article II Representations and Warranties pertaining to the BUSINESS		10
2.1	Organization, Power	10
2.2	Authority	11
2.3	Non-Contravention	11
2.4	Consents, etc	12
2.5	Capitalization	12
2.6	Financial Statements	13
2.7	Litigation	14
2.8	Compliance with Laws; Permits and Licenses	15
2.9	Absence of Certain Changes; No Undisclosed Liabilities	16
2.10	Personnel and Employee Benefits Matters	17
2.11	Taxes	19
2.12	Properties and Assets	21
2.13	Certain Labor Matters	22
2.14	Material Contracts	22
2.15	Intellectual Property and IT Systems	23
2.16	Data Protection and Privacy	24
2.17	Books and Records	24
2.18	Broker-Dealer Matters	24
2.19	Compliance Matters	26
2.20	Insurance	28
2.21	Affiliate Arrangements	28
2.22	Compliance with Environmental Law	28
2.23	Brokers	29
Article III Representations and Warranties of Apollo		29
3.1	Organization	29
3.2	Authority	29
3.3	Non-Contravention	30
3.4	Consents, etc	30
3.5	Available Funds	31

3.6	Investment Intent	31
3.7	Brokers	31
Article IV Covenants		31
4.1	Conduct of Business	31
4.2	Access; Confidentiality; Planning Committee	35
4.3	Reasonable Best Efforts; Regulatory Approvals	36
4.4	Communications; Confidentiality	38
4.5	Supplemental Disclosure	38
4.6	Third Party Proposals	39
4.7	Financial Statements; Cooperation	39
4.8	Non-Solicitation; Non-Competition	40
4.9	Termination of Affiliate Agreements	42
4.10	Expenses	42
4.11	[Intentionally omitted.]	42
4.12	Employee Matters	42
4.13	Pre-Closing Restructuring Actions	44
4.14	Separation and Transition Matters; Commingled Contracts	44
4.15	Intellectual Property Cross-License	45
4.16	Use of Seller Marks	46
4.17	Transition Services	47
4.18	Release	48
4.19	Further Assurances	48
Article V Conditions to the Closing		49
5.1	Mutual Conditions	49
5.2	Additional Conditions to the Obligations of Apollo	49
5.3	Additional Conditions to the Obligations of the Sellers	51
Article VI Termination		52
6.1	Termination	52
6.2	Effect of Termination	53
Article VII Indemnification		53
7.1	Indemnification by the Sellers	53
7.2	Indemnification by Apollo	55
7.3	Indemnification Procedures	56
7.4	General	57
Article VIII Tax Matters		59
8.1	Tax Indemnity	59
8.2	Straddle Periods	59
8.3	Tax Returns	60
8.4	Tax Contests	61
8.5	Books and Records; Cooperation	62

2

8.6	Transfer Taxes	62
8.7	Tax Agreements; Powers of Attorney	62
8.8	Overlap	63
8.9	Section 754 Elections	63
8.10	FIRPTA Certificate	63
8.11	Allocation	63
8.12	Tax Treatment of Certain Payments	63
Article IX General Provisions		64
9.1	Survival	64
9.2	Notices	64
9.3	Interpretation	65
9.4	Amendment and Modification; Waiver	66
9.5	Entire Agreement	66
9.6	Disclosure Letters	66
9.7	Third Party Beneficiaries	67
9.8	Specific Performance	67
9.9	Assignment; Binding Effect	67
9.10	Governing Law	67
9.11	Jurisdiction; Waiver of Jury Trial	67
9.12	Severability	68
9.13	Counterparts	68
Article X Definitions		68

SCHEDULES
Schedule A	Sample Calculation of Regulatory Capital and Net Working Capital
Schedule B	Accounting Principles
EXHIBITS
Exhibit A	Term Sheet for Operating Agreement

3

AMENDED AND RESTATED

MEMBERSHIP INTEREST PURCHASE AGREEMENT

This AMENDED AND RESTATED membership interest purchase AGREEMENT, dated as of November 8, 2015 (this “Agreement”), is made by and among Apollo Management Holdings, L.P., a Delaware limited partnership (“Apollo”), RCS Capital Corporation, a Delaware corporation (“RCAP”) and RCS Capital Holdings, LLC, a Delaware limited liability company (“RCS Holdings” and, together with RCAP, the “Sellers”). Capitalized terms used and not otherwise defined in this Agreement have the meanings specified in Article X.

RECITALS

A.           RCAP owns, indirectly through its wholly-owned direct subsidiary RCS Holdings, (i) 100% of the authorized, issued and outstanding Equity Securities of Realty Capital Securities, LLC, a Delaware limited liability company (“RCS”) and (ii) 100% of the authorized, issued and outstanding Equity Securities of Strategic Capital Management Holdings, LLC, a Delaware limited liability company (“StratCap” and, collectively with RCS, the “Acquired Companies” and each an “Acquired Company”).

B.           Subject to the consummation of the Pre-Closing Restructuring Actions (as hereinafter defined), the Sellers desire to sell, and Apollo desires to acquire, all of the issued and outstanding Equity Securities in the Acquired Companies (the “Acquired Interests”).

C.           On August 6, 2015, AMH Holdings (Cayman), L.P., AR Capital, LLC and AR Global, LLC entered into a Transaction Agreement (the “ARC Transaction Agreement”) and the parties to the ARC Transaction Agreement have terminated the ARC Transaction Agreement pursuant to a termination and release agreement entered into on the date hereof.

D.           On August 6, 2015, RCAP, RCS Holdings and Apollo entered into a Membership Interest Purchase Agreement (the “Membership Interest Purchase Agreement”). The consummation of the transactions contemplated by the Membership Interest Purchase Agreement were premised upon the simultaneous consummation of the transactions contemplated by the ARC Transaction Agreement.

NOW, THEREFORE, in light of the termination of the ARC Transaction Agreement and in consideration of the premises and of the mutual covenants and agreements hereinafter set forth, the parties desire to amend and restate the Membership Interest Purchase Agreement as follows:

4

Article I

Transaction

1.1          Purchase and Sale.

(a)          Transfer of Acquired Interests. Subject to the terms and conditions of this Agreement, including Section 1.5, at the Closing, the Sellers shall assign, transfer, convey and deliver to Apollo, and Apollo shall purchase and accept from the Sellers, the Acquired Interests, free and clear of any Liens (other than Liens arising as a result of this Agreement or under applicable securities Laws).

(b)          Consideration. In exchange for the Acquired Interests, Apollo shall pay and convey to the Sellers an amount of cash equal to (i) six million dollars ($6,000,000) (subject to adjustment in accordance with Section 1.5, the “Base Purchase Price”), minus (ii) the greater of (A) the excess (if any) of the Target Regulatory Capital over the Estimated Closing Regulatory Capital or (B) the excess (if any) of the Target Net Working Capital over the Estimated Closing Net Working Capital (the “Estimated Purchase Price” and, as adjusted pursuant to Section 1.6, the “Purchase Price”). Apollo shall pay the Purchase Price by wire transfer of immediately available funds to the account or accounts designated by RCAP to Apollo in writing at least three (3) Business Days prior to the Closing Date.

(c)          Estimated Regulatory and Net Working Capital. Not later than the fifth (5th) Business Day prior to the Closing Date, the Sellers shall deliver to Apollo a written statement (the “Estimated Closing Statement”) setting forth, with reasonable supporting detail a good faith estimate of (i) the Closing Regulatory Capital (prepared in accordance with the definitions and principles of the SEC Uniform Net Capital Rule 15c3-1) (the “Estimated Closing Regulatory Capital”) and (ii) the Closing Net Working Capital (prepared in accordance with the Accounting Principles) (the “Estimated Closing Net Working Capital”), in each case, for the avoidance of doubt, after giving effect to the Pre-Closing Restructuring Transactions. A sample calculation of the Closing Regulatory Capital and Closing Net Working Capital is attached as Schedule A. In the event that Apollo objects to or disputes the Estimated Closing Statement, the Estimated Closing Regulatory Capital or the Estimated Net Working Capital (in each case, in whole or in part), the Sellers and Apollo will each make a good faith effort to resolve such objections or disputes; provided that if any such objections or disputes are not resolved by the second (2nd) Business Day immediately prior to the Closing Date, the Estimated Closing Regulatory Capital and/or Estimated Closing Net Working Capital, as applicable, will be adjusted (x) to reflect the resolution of any such objections and disputes that have been resolved and (y) such that the amounts included for any remaining disputed items shall represent the mid-point between the positions taken by the Sellers, on the one hand, and Apollo, on the other.

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(d)          Pre-Closing Distribution. To the extent that (i) the Estimated Closing Regulatory Capital exceeds the Target Regulatory Capital or (ii) the Estimated Closing Net Working Capital exceeds the Target Net Working Capital (the lesser of such excesses, if any, the “Excess Capital”), RCAP may cause the Acquired Companies to distribute to the Sellers an amount not in excess of the Excess Capital, provided that with respect to any distribution made by RCS and/or SC Distributors, FINRA does not object or otherwise place any restriction or other burdensome condition on such distribution.

1.2          The Closing. The closing of the purchase and sale of the Acquired Interests (the “Closing”) shall take place at the offices of Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, at 10:00 a.m. local time on the fifth Business Day following the Closing Condition Satisfaction Date (subject to the satisfaction or waiver of those conditions that by their terms are to be satisfied by actions taken at the Closing), provided that (i) the Closing shall not take place prior to January 4, 2016 and (ii) the parties may agree in writing on another time, date or place for the Closing. The date on which the Closing actually occurs is referred to hereinafter as the “Closing Date”.

1.3          Closing Deliveries. At the Closing, the Sellers shall deliver, or shall cause to be delivered, to Apollo each of the following:

(a)          a release, in a form reasonably acceptable to Apollo, evidencing the release of the Subject Companies from their obligations and any security interests granted by them or pledge of their Equity Securities in connection with the RCAP Credit Facilities;

(b)          written resignations, in a form reasonably acceptable to Apollo, from each officer or director of the Subject Companies or evidence reasonably satisfactory to Apollo that duly authorized action has been taken by each of the Subject Companies to remove each officer and director of the Subject Companies (in each case other than those listed on Section 1.3(a)(iii) of the Seller Disclosure Letter);

(c)          the certificates described in Section 8.10; and

(d)          such other instruments of conveyance, assignment and transfer as may be reasonably requested by Apollo with respect to the Acquired Interests.

1.4          Withholding. Notwithstanding any other provision of this Agreement, (a) each payment made pursuant to this Agreement shall be made net of any Taxes required by Applicable Law to be deducted or withheld from such payment and (b) any amounts deducted or withheld from any such payment shall be remitted to the applicable taxing authority and shall be treated for all purposes of this Agreement as having been paid.

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1.5          StratCap Carve-Out. Anything to the contrary in this Agreement notwithstanding, if the StratCap Waiver has not been obtained by the date on which the Closing would otherwise occur, the purchase of the Equity Securities of RCS shall occur and Apollo shall not acquire the Equity Securities of StratCap (unless it chooses to waive the nonreceipt of the StratCap Waiver). In such event:

(a)          The “Acquired Companies” shall exclude StratCap and the “Subject Companies” shall exclude StratCap and its Subsidiaries.

(b)          The “Acquired Interests” shall exclude the Equity Securities of StratCap.

(c)          The Base Purchase Price shall be reduced to $1,000,000.

(d)          Thereafter the Sellers shall (i) own and operate StratCap in a manner consistent with the Membership Interest Purchase Agreement dated May 19, 2014 among the Sellers, the Executives and the Individual Seller defined therein (the “StratCap MIPA”); (ii) procure that StratCap shall not become liable for any Indebtedness or enter into any agreement that restricts its ability to engage in any business, sell any product or compete; (iii) procure that StratCap not enter into distribution or selling arrangements effective after December 31, 2016 without Apollo’s consent (which consent shall not be unreasonably withheld or delayed); (iv) procure that RCS receives compensation for sales of StratCap products equivalent to the compensation received by StratCap, including dealer manager fees, revenue shares, distribution and advisory fees and like amounts (including any amounts received by StratCap through its direct or indirect equity interests in any advisor to any of the investment vehicles whose products are distributed by StratCap), which shall be pro rata to the amount of StratCap products sold, at any time and from time to time, primarily through the efforts of RCS relative to the amount of StratCap products sold, at any time and from time to time, primarily through the efforts of any Person other than RCS (including StratCap), (v) to the extent there is sufficient cash available, pay the earnout payments due under the StratCap MIPA; (vi) continue to comply with the covenants set forth in Section 4.1 and Section 4.2 with respect to StratCap and to provide the financial statements of StratCap pursuant to Section 4.7; and (vii) seek to cause to be obtained or otherwise satisfied the various aspects of the Stratcap Waiver.

(e)          At any time from and after the Closing and prior to December 31, 2017 when the StratCap Waiver has been obtained or otherwise satisfied, Apollo shall purchase and the Sellers shall sell the Equity Securities of StratCap (which shall be considered the Acquired Company for purposes of such sale) for a base purchase price of $5,000,000 on substantially the terms set forth in this Agreement (to the extent relevant to a purchase of StratCap), including a working capital and regulatory capital adjustment, comparable representations, warranties and indemnities, and other comparable provisions.

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(f)          The Sellers and Apollo shall have no further obligations under this Section 1.5 if the purchase and sale of StratCap contemplated hereby has not been consummated by December 31, 2017.

(g)          If StratCap monetizes an advisory contract through a buyout, the portion of the proceeds therefrom that are attributable to cash flow for periods beginning January 1, 2017 and onwards shall be retained and shall not be included in Closing Net Working Capital or Closing Regulatory Capital.

1.6          Post-Closing True-Up.

(a)          Closing Statement. Not later than the ninetieth (90th) day following Closing, Apollo shall deliver to the Sellers a written statement (the “Closing Statement”) setting forth a calculation of the Closing Regulatory Capital (prepared in accordance with the definitions and principles of the SEC Uniform Net Capital Rule 15c3-1) and the Closing Net Working Capital (prepared in accordance with the Accounting Principles), in each case, for the avoidance of doubt, after giving effect to the Pre-Closing Restructuring Transactions. The Sellers will assist and cooperate with Apollo in all commercially reasonable respects in the preparation of the Closing Statement and the calculation of the Closing Regulatory Capital and the Closing Net Working Capital, including by providing Apollo with reasonable access to any relevant personnel, books and records related to the Business or the Subject Companies that are in its possession.

(b)          Disputes; Finalization of Closing Statement.

(i)          The Sellers and their accountants will be provided with reasonable access to the work papers of Apollo and its accountants and to the books and records of the Subject Companies, in connection with their review of the Closing Statement and the calculations of the Closing Regulatory Capital and Closing Net Working Capital (subject to the Sellers and their accountants signing customary agreements relating to access to such working papers in form and substance reasonably acceptable to Apollo’s accountants).

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(ii)         The Sellers may dispute any amounts on the Closing Statement by notifying Apollo in writing, not later than the thirtieth (30^th) day (the “Dispute Deadline”) following its receipt of the Closing Statement from Apollo, of any such disputed amounts or calculations and setting forth, in reasonable detail, the basis for such dispute. In the event of such a dispute, the Sellers and Apollo will attempt to reconcile their differences and any resolution by them as to any disputed amounts or calculations shall be in writing and shall be final, binding and conclusive on the parties. If the Sellers and Apollo are unable to reach a resolution with such effect within thirty (30) days after the Dispute Deadline, any of the Sellers or Apollo may elect to submit the items remaining in dispute for resolution to the Accounting Firm, which will be instructed to determine and report to the Sellers and Apollo, within forty-five (45) days after such submission, upon such remaining disputed items or calculations, and such report shall be final, binding and conclusive on the Sellers and Apollo, absent manifest error. In resolving the disputed items, the Accounting Firm (A) will be bound by the provisions of this Section 1.6, (B) may not assign a value to any item greater than the greatest value claimed for such item or less than the smallest value for such item claimed by the Sellers, on the one hand, or Apollo, on the other hand, and (C) will limit its decision to such items as are in dispute and to only those adjustments as are necessary for the Closing Statement and the calculations of the Closing Regulatory Capital and Closing Net Working Capital to comply with the provisions of this Agreement. The Sellers and Apollo shall make reasonably available to the Accounting Firm all relevant books and records, any work papers (including those of the parties’ respective accountants, to the extent applicable) and supporting documentation relating to the Closing Statement, the calculation of the Closing Regulatory Capital and Closing Net Working Capital and any other items reasonably requested by the Accounting Firm. The fees and disbursements of the Accounting Firm will be borne by the Sellers, on the one hand, and Apollo, on the other hand, in inverse proportion to the amounts by which their respective calculations at issue prevail relative to the total amount of the disputed items, all as finally determined by the Accounting Firm.

(iii)        The Closing Statement and calculations of the Closing Regulatory Capital and Closing Net Working Capital shall be deemed final for the purposes of this Section 1.6 upon the earliest of (i) the failure of the Sellers to notify Apollo of a dispute by the Dispute Deadline, (ii) the resolution of all disputes, pursuant to this Section 1.6(b), by the Sellers and Apollo or (iii) the resolution of all disputes, pursuant to this Section 1.6(b), by the Accounting Firm.

(c)          True-Up Payments. Not later than the tenth (10^th) Business Day following the Closing Statement being deemed final pursuant to Section 1.6(b)(iii):

(i)          If (x) the Closing Regulatory Capital is less than the Estimated Closing Regulatory Capital and/or (y) the Closing Net Working Capital is less than the Estimated Closing Net Working Capital, the Sellers shall pay to an account specified by Apollo an amount equal to the greater of the shortfall (if any) described in (x) or (y).

(ii)         If (x) the Closing Regulatory Capital exceeds the Estimated Closing Regulatory Capital and/or (y) the Closing Net Working Capital exceeds the Estimated Closing Net Working Capital, Apollo shall use reasonable best efforts to cause the Acquired Companies to distribute an amount sufficient to pay to an account specified by the Sellers an amount equal to the lesser of the excess (if any) described in (x) or (y), provided that with respect to any distribution made by RCS and/or SC Distributors, FINRA does not object or otherwise place any restriction or other burdensome condition on such distribution.

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(d)          The provisions in this Section 1.6 relating to resolutions of disputes by the Accounting Firm are not intended to and shall not be interpreted to require that the parties refer to such a firm (i) any dispute arising out of a breach by any party of its obligations under this Agreement or (ii) any dispute the resolution of which requires the construction or interpretation of this Agreement (apart from the mathematical calculation of Closing Regulatory Capital and Closing Net Working Capital and the accounting treatment of current assets and current liabilities insofar as such treatment affects the Closing Statement).

(e)          Any amount paid in respect of any adjustments made pursuant to this Section 1.6 will be treated as an adjustment to the Purchase Price for tax reporting purposes.

Article II

Representations and Warranties pertaining to the BUSINESS

Except as set forth in the corresponding section of the Seller Disclosure Letter, the Sellers represent and warrant to Apollo, as of August 6, 2015 and as of the Closing Date, as follows:

2.1          Organization, Power. Each of the Sellers and the Subject Companies is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and, where applicable, is duly qualified or licensed as a foreign limited liability company, corporation or other business entity to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of the properties, assets and rights owned, leased or operated by it makes such qualification or license necessary, and each of the Sellers and the Subject Companies has the requisite limited liability company, corporate or similar power and authority necessary to own all of its properties, assets and rights and to carry on its business as it is now being conducted, except where any failure to be so qualified, licensed or in good standing or to have such power or authority would not, individually or in the aggregate, be Material to a Reasonable Investor. The Sellers have previously provided or otherwise made available to Apollo true, complete and correct copies of the Organizational Documents of the Sellers and each Subject Company, as in effect as of the date hereof. None of the Sellers or the Subject Companies is in material violation of any provision of its Organizational Documents.

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2.2          Authority. Each of the Sellers has the requisite power and authority to execute and deliver this Agreement and all Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by each of the Sellers of this Agreement and the Ancillary Agreements to which it is a party, the performance of its obligations hereunder and thereunder and its consummation of the transactions contemplated hereby and thereby have been duly and validly authorized and approved by all necessary limited liability, corporate or similar action of each of the Sellers and no other limited liability, corporate or similar action on the part of either Seller is necessary to authorize the execution and delivery by each of the Sellers of this Agreement and the Ancillary Agreements to which it is a party, the performance by it of its obligations hereunder and thereunder and its consummation of the transactions contemplated hereby and thereby. This Agreement and the Ancillary Agreements entered into as of the date hereof have been, and at the Closing each of the other Ancillary Agreements to which a Seller is party will be, duly and validly executed and delivered by such Seller and, assuming the due authorization, execution and delivery by the other parties thereto, constitute legal and binding obligations of such Seller enforceable against such Seller in accordance with their terms, except as (a) the enforceability hereof or thereof may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) the availability of equitable remedies may be limited by equitable principles of general applicability.

2.3          Non-Contravention. The execution and delivery by each Seller of this Agreement and the Ancillary Agreements to which it is a party do not, and the consummation of the transactions contemplated hereby and thereby and the performance of its obligations hereunder and thereunder will not (with or without the giving of notice, the termination of any grace period or both): (a) violate, conflict with, or result in a breach or default under any provision of the Organizational Documents of any Seller or Subject Company or (b) assuming that all consents, authorizations, orders or approvals of, filings or registrations with, and notices to, each Governmental Authority referred to in Section 2.4(a) and all Third Party Consents referred to in Section 2.4(b) have been obtained or made, (i) violate any Applicable Law, (ii) violate, result in a violation or breach by any Seller or Subject Company of, or cause the termination, acceleration or cancellation or the loss, impairment or alteration of any right or benefit (including with respect to Intellectual Property) under, or conflict with or constitute a default (or give rise to a right of termination, acceleration, cancellation or the loss, impairment or alteration of any right or benefit (including with respect to Intellectual Property) under, any mortgage, indenture, lease, license, note, website terms of use, privacy policy or statement, contract or agreement (each, whether oral or written, a “Contract”) to which any Seller or Subject Company is a party or by which any Seller or Subject Company or any of their respective properties is bound, whether with the passage of time, giving of notice, or both, or (iii) result in the creation of any Lien on the Acquired Interests or any of the assets or properties of any Seller or Subject Company, except, in the cases of clauses (i), (ii) and (iii), for any such violation, breach, termination, acceleration, conflict, default or Lien as would not, individually or in the aggregate, be Material to a Reasonable Investor.

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2.4          Consents, etc.

(a)          Except as described in Section 2.4(a) of the Seller Disclosure Letter, no consent, authorization, order or approval of, filing or registration with, or notice to, any Governmental Authority (collectively, “Governmental Approvals”) is required for the execution and delivery by either Seller of this Agreement or the Ancillary Agreements to which it is a party, the performance by it of its obligations hereunder and thereunder and its consummation of the transactions contemplated hereby and thereby, except in any such case for any such Governmental Approval which is required solely by reason of the specific regulatory status of Apollo or its Affiliates or the failure of which to be obtained or made would not, individually or in the aggregate, be Material to a Reasonable Investor.

(b)          No consent, authorization, approval or waiver from any party (other than a Governmental Authority) to any Contract (collectively, “Third Party Consents”) is required for the execution and delivery by either Seller of this Agreement or the Ancillary Agreements to which it is a party, the performance by it of its obligations hereunder and thereunder and its consummation of the transactions contemplated hereby or thereby, except in any such case for any such Third Party Consent the failure of which to be obtained or made would not, individually or in the aggregate, be Material to a Reasonable Investor.

2.5          Capitalization .

(a)          Acquired Companies. Except as set forth Section 2.5(a) of the Disclosure Letter, as of the date hereof, all of the issued and outstanding Equity Securities of each of the Acquired Companies, which consist solely of membership interests (w) owned beneficially and of record by RCS Holdings, free and clear of any Liens, (x) have been validly issued, (y) have not been issued in violation of any preemptive or similar rights and (z) have been issued in compliance with applicable securities laws or exemptions therefrom. Upon the Closing, RCS Holdings will transfer and deliver to Apollo good and valid title to the Acquired Interests, free and clear of any Lien (other than Liens arising as a result of this Agreement or under applicable securities laws), and Apollo will own the Acquired Interests, beneficially and of record, free and clear of any Lien (other than Liens arising as a result of this Agreement or under applicable securities laws) and will be duly admitted as the sole member of each Acquired Company. There are no outstanding securities convertible into or exchangeable or exercisable for any Equity Securities of any of the Acquired Companies, any rights to subscribe for or to purchase, or any agreements providing for the issuance (contingent or otherwise) of any Equity Securities of any Acquired Company or any rights to receive payments based on the value of, or payments in respect of, any Equity Securities of any Acquired Company. There are no voting trusts, rights of first refusal, rights of first offer, limited liability company agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any Equity Securities of or any other interests in any of the Acquired Companies.

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(b)          Subsidiaries. Section 2.5(b) of the Seller Disclosure Letter lists, as of the date hereof, all of the Subsidiaries of any of the Acquired Companies, listing for each Subsidiary its name, its jurisdiction of organization, and the ownership of such Equity Securities, which consist solely of membership interests. All of the issued and outstanding Equity Securities of each such Subsidiary (w) are indirectly owned by RCS Holdings, free and clear of any Liens. Except as set forth in Section 2.5(b) of the Seller Disclosure Letter, (x) have been validly issued and are fully paid and non-assessable, (y) have not been issued in violation of any preemptive or similar rights and (z) have been issued in compliance with applicable securities laws or exemptions therefrom. There are no outstanding securities convertible into or exchangeable or exercisable for any Equity Securities of any such Subsidiary, any rights to subscribe for or to purchase, or any agreements providing for the issuance (contingent or otherwise) of any Equity Securities of any such Subsidiary, or any rights to receive payments based on the value of, or payments in respect of, any Equity Securities of any such Subsidiary. There are no voting trusts, rights of first refusal, rights of first offer, limited liability company agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any Equity Securities of any such Subsidiary, or any securities convertible into or exchangeable or exercisable for any Equity Securities of any such Subsidiary.

(c)          Section 2.5(c) of the Seller Disclosure Letter sets forth all Contracts under which Indebtedness has been incurred or guaranteed by any of the Subject Companies.

(d)          Except as set forth on Section 2.5(d) of the Seller Disclosure Letter, none of the Subject Companies owns, directly or indirectly, any equity interest in any Person other than another Subject Company, and none of the Subject Companies is a party to, member of or participant in any partnership, joint venture or similar business entity.

2.6          Financial Statements.

(a)          The Sellers have previously provided or otherwise made available to Apollo true, complete and correct copies of the Financial Statements described in clause (i) of the definition thereof. Each balance sheet included in the Financial Statements presents fairly in all material respects in accordance with GAAP the consolidated financial position of the applicable Subject Companies or the Business (as set forth therein) as of the date thereof, and the other financial statements included in the Financial Statements present fairly in accordance with GAAP in all material respects the consolidated results of the operations, cash flows and changes in members’ equity of the applicable Subject Companies or the Business (as set forth therein) for the periods set forth therein (subject, in the case of financial statements for interim periods, to normal year-end adjustments and the absence of footnote disclosure, which will not be material to the Business or the Subject Companies, in each case, taken as a whole). The Financial Statements have been prepared and presented in accordance with GAAP consistently applied during the periods involved (subject, in the case of financial statements for interim periods, to normal year-end adjustments and the absence of footnote disclosure, which will not be material to the Business or the Subject Companies, in each case, taken as a whole) and consistent with the Books and Records.

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(b)          RCAP maintains accounting records which fairly and accurately reflect, in all material respects, the transactions at the Subject Companies, and RCAP has devised and maintains accounting controls sufficient to provide reasonable assurances that (i) such transactions are executed in accordance with management’s general or specific authorization, (ii) such transactions are recorded as necessary to permit the preparation of financial statements in accordance with GAAP, (iii) access to their property and assets is permitted only in accordance with management’s general or specific authorizations and (iv) recorded accountability for items is compared with actual levels at reasonable intervals and appropriate action is taken with respect to any differences.

2.7          Litigation.

(a)          Sections 2.7(a)(i) and 2.7(a)(ii), respectively of the Seller Disclosure Letter contain a true, complete and correct list, since January 1, 2014 through the date of this Agreement, of all pending and, to the Sellers’ Knowledge, threatened legal, administrative, arbitral or other proceeding (including disciplinary proceedings), action, cease and desist letter, offer to license in lieu of further action, demand, claim, suit or governmental or regulatory investigation or inquiry of any nature (collectively, “Proceedings”) (i) against or relating to any Subject Company or any of its properties, assets or businesses and (ii) against or relating to any of the Sellers, any of their Subsidiaries or any of their respective directors, officers or employees (other than as set forth in Section 2.7(a)(i) of the Seller Disclosure Letter) that could reasonably be related to the Business or any Subject Company or any of its properties, assets or businesses. As of the date hereof, there is no Proceeding pending or, to the Sellers’ Knowledge, threatened against or relating to the Sellers or any of their respective Subsidiaries (including any Subject Company) or any of their respective properties, assets or businesses (including the Business) that would, individually or in the aggregate, be Material to a Reasonable Investor.

(b)          Section 2.7(b) of the Seller Disclosure Letter contains a true, complete and correct list of all material judgments, decrees, injunctions or orders of any Governmental Authority to which any Subject Company or any Seller or other Subsidiary thereof (to the extent relating to the Business) is or was subject or any of its properties is or was bound, in each case from January 1, 2014 through the date of this Agreement. As of the date hereof, there are no settlement agreements or similar written agreements with any Governmental Authority or outstanding judgments, decrees, injunctions or orders of any Governmental Authority to which any Seller or other Subsidiary thereof (to the extent affecting or relating to the Business) is subject or any of its properties is bound that would, individually or in the aggregate, that would, individually or in the aggregate, be Material to a Reasonable Investor. As of the date hereof, no Subject Company is, or has been, subject to any felony, misdemeanor, decree, order, proceeding or examination that would cause the Subject Company, or any issuer of which the Subject Company was a subsidiary at the time of such event, to be an “ineligible issuer” as such term is defined in Rule 405 under the Securities Act of 1933, nor is there any Proceeding pending or, to the Knowledge of Seller, threatened by any Governmental Authority that would result in any Subject Company becoming an “ineligible issuer.”

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2.8          Compliance with Laws; Permits and Licenses.

(a)          The operations of the Business and the Subject Companies are and since January 1, 2014 have been conducted in compliance in all material respects with all Applicable Laws. No Subject Company or any Seller or other Subsidiary thereof (to the extent affecting or relating to the Business) is in material default under any Applicable Law or, to the Knowledge of the Sellers, is under investigation by any Governmental Authority with respect to any material violation of any Applicable Law. Each Subject Company holds, and at all times as required by Applicable Law has held, all material permits, certificates, licenses, Governmental Approvals and other authorizations of any Governmental Authority (“Permits”) that are necessary for the operation of its business as presently conducted or the ownership, operation or use by such Subject Company of its properties, assets and rights, except where the failure to hold any such Permit would not, individually or in the aggregate, be Material to a Reasonable Investor. All Permits held by the Subject Companies are in full force and effect and are not subject to any suspension, cancellation or revocation or any Proceedings related thereto, and, to the Knowledge of the Sellers, no such suspension, cancellation, modification or revocation or Proceeding is threatened. Each of the Subject Companies is in compliance in all material respects with all the Permits held it. As of the date hereof, none of the Subject Companies or the Sellers or other Subsidiaries thereof has received any written notification from any Governmental Authority asserting that any Subject Company is not in compliance with any Applicable Law that such Governmental Authority enforces or that such Governmental Authority intends to revoke or suspend any Permit, except where such noncompliance, revocation or suspension would not, individually or in the aggregate, be Material to a Reasonable Investor.

(b)          As of the date hereof, no Proceeding, examination, audit or review (other than routine examinations, audits and reviews in the ordinary course of business consistent with past practice) with respect to any Subject Company has been initiated or is ongoing, unresolved or, to the Knowledge of the Sellers, threatened by any applicable Governmental Authority. None of the Subject Companies or the Sellers or other Subsidiaries thereof has received since January 1, 2014 any written notice or communication of any unresolved violation or exception from any applicable Governmental Authority with respect to any report or statement by any applicable Governmental Authority relating to any examination that would, individually or in the aggregate, be Material to a Reasonable Investor. Except to the extent restricted from doing so by Applicable Law, the Sellers have previously provided or otherwise made available to Apollo true, complete and correct copies of all written correspondence relating to any investigation or examination provided to or by any Seller or Subject Company by the SEC or any other Governmental Authority since January 1, 2014.

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(c)          No director or officer of any Subject Company or any Seller or other Subsidiary thereof, or to the Sellers’ Knowledge, no employee or agent of any Subject Company or any Seller or other Subsidiary thereof acting for or on behalf of any Subject Company has, directly or indirectly (i) used any funds for contributions, gifts, gratuities, entertainment or other expenses related to political activity, in each case in violation of Applicable Law, (ii) made any payment in violation of Applicable Law or offered, promised or authorized the payment of anything of value, regardless of form, whether in money, property or services, to or for the benefit of any U.S. or non-U.S. government official or employee, any official or employee of a public international organization, or any political party or candidate for political office in each case in violation of Applicable Law and for the purpose of influencing any act or decision of such individual or of any Governmental Authority or public international organization, or securing any improper advantage, in order to obtain or retain business or direct business to any Person in violation of Applicable Law, (iii) made any other payment, regardless of form, whether in money, property or services which constitutes criminal bribery under Applicable Law, or (iv) violated any applicable export control, money laundering or anti-terrorism law or regulation, the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery law or regulation, of any applicable jurisdiction, or any Applicable Law of similar effect.

2.9          Absence of Certain Changes; No Undisclosed Liabilities.

(a)          Since December 31, 2014, through the date of this Agreement, except as otherwise contemplated by this Agreement, (i) there has been no change, event or development that, individually or in the aggregate, has had a Material Adverse Effect, and (ii) the Business and the Subject Companies have operated in the ordinary course of business consistent with past practice in all material respects.

(b)          Except as contemplated by this Agreement, except as set forth in Section 2.9(b) of the Seller Disclosure Letter, and except for (i) liabilities disclosed, reserved for or otherwise reflected in the Financial Statements, (ii) liabilities that, individually and in the aggregate, would not be Material to a Reasonable Investor, (iii) liabilities incurred by the Subject Companies after December 31, 2014 in the ordinary course of business consistent with past practice, or (iv) liabilities under contracts, agreements or other understandings to which any Subject Company is a party or by which it is bound relating to the extent relating to performance after the date of this Agreement, the Subject Companies do not have any liabilities (accrued, absolute, contingent or otherwise) whether or not such liabilities would be required to be disclosed on a consolidated balance sheet in accordance with GAAP.

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2.10        Personnel and Employee Benefits Matters.

(a)          Section 2.10 of the Seller Disclosure Letter lists each material Employee Benefit Plan (including a written description of any material oral Employee Benefit Plan) and specifically identifies Employee Benefit Plans that are Acquired Benefit Plans. With respect to each Acquired Benefit Plan, the Sellers have previously provided or made available to Apollo a true, complete and correct copy of: (i) such Acquired Benefit Plan, including the plan document and any amendments or other writings constituting a part thereof, and each trust agreement, insurance contract and other funding vehicle related thereto; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedules, if any; (iii) the current summary plan description and any material modifications thereto, if any (in each case, whether or not required to be furnished under ERISA); (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; (vi) the most recent determination letter from the IRS, if any and (vii) all material communications received from or sent to the IRS, the PBGC, the Department of Labor or any other Governmental Authority. Except as delivered to Apollo in the foregoing documents, neither the Sellers nor any of their Affiliates (including the Subject Companies) have made a commitment to adopt, amend or terminate any Acquired Benefit Plan.

(b)          No liability under Title IV or Sections 302, 303 or 304 of ERISA or Sections 412, 430 or 431 of the Code has been incurred by any Subject Company that has not been satisfied in full and no condition exists that could present a material risk to any Subject Company that would reasonably be expected to result in any such liability to any Subject Company. No Acquired Benefit Plan is subject to Title IV of ERISA and no Subject Company or any ERISA Affiliate thereof has, at any time during the last six (6) years, contributed to or been obligated to contribute to any plan that is (i) subject to Title IV or (ii) a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA. No nonexempt “prohibited transactions” as such term is set forth in Section 406 of ERISA or Section 4975 of the Code have occurred with respect to any Employee Benefit Plan and no Subject Company has any material Tax liability under Section 4975 of the Code. Except as would not, individually or in the aggregate, reasonably be expected to be Material to a Reasonable Investor, all contributions required to be made in respect of Employees to any Employee Benefit Plan by Applicable Law or by any Employee Benefit Plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Acquired Benefit Plan, in each case for any period through the date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been adequately reflected on the Financial Statements in accordance with GAAP.

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(c)          Except as would not, individually or in the aggregate, reasonably be expected to be Material to a Reasonable Investor, (i) each Acquired Benefit Plan has been operated and administered in accordance with its terms and Applicable Law, including ERISA and the Code and (ii) each Acquired Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the Internal Revenue Service that it is so qualified and that any trust maintained thereunder is exempt from taxation under Section 501(a) of the Code, in each case which letter has not been revoked, and, to the Sellers’ Knowledge, there are no existing circumstances or events that have occurred which would reasonably be expected to adversely affect the qualified status of any such Acquired Benefit Plan or related trust.

(d)          No Employee Benefit Plan provides, and neither Seller nor any Subject Company has committed to provide, benefits, including death or medical benefits (whether or not insured), with respect to current or former Employees after retirement or other termination of service (other than coverage mandated by Section 4980B of the Code or Section 601 et seq. of ERISA or similar Applicable Law).

(e)          There are no pending or, to the Sellers’ Knowledge, threatened or anticipated claims by or on behalf of any Acquired Benefit Plan, by any Employee or beneficiary under any such Acquired Benefit Plan or otherwise involving any Acquired Benefit Plan (other than routine claims for benefits) that, individually or in the aggregate, have resulted in, or would reasonably be expected to result in, material liability for the Subject Companies, taken as a whole, and, to the Sellers’ Knowledge, no set of circumstances exists which would reasonably be expected to give rise to such a claim.

(f)          Except as would not, individually or in the aggregate, reasonably be Material to a Reasonable Investor, (i) each of the Subject Companies is in compliance with all Applicable Laws respecting labor, employment, worker classification, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety and health requirements, wages and hours, withholding of taxes, employment discrimination, disability rights or benefits, equal opportunity, labor relations, employee leave issues and unemployment insurance and related matters, (ii) no claim with respect to payment of wages, salary, compensation or benefits pay is pending or, to Knowledge of the Sellers, threatened, by or before any Governmental Authority with respect to any current or former Employees, officers, directors, managers or consultants of any Subject Company or the Business, (iii) the Sellers and the Subject Companies have paid all Employees and all of current and former directors, officers and consultants of the Subject Companies or the Business or adequately accrued for in accordance with GAAP all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such Persons, and (iv) each individual who renders, or since January 1, 2014 has rendered, services to any Subject Company or the Business who is classified by the Sellers or any of their Affiliates (including any of the Subject Companies) as having the status of an independent contractor or other non-employee status or the status of an exempt employee or nonexempt employee for any purpose, including for purposes of participation in any Employee Benefit Plan, is properly so characterized under all Applicable Laws.

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(g)          Except as set forth on Section 2.10(g) of the Seller Disclosure Letter, the execution, delivery and performance of this Agreement by the Sellers and the consummation by the Sellers of the transactions contemplated by this Agreement shall not (alone or in combination with any other event), (i) entitle any current or former Employee director, officer or consultant of any Subject Company or the Business to severance pay or any other payment, (ii) result in any payment becoming due, accelerate the time of payment or vesting of benefits, or increase the amount of compensation due to any such employee, director, officer or consultant, (iii) result in any forgiveness of indebtedness, trigger any funding or payment obligation under any Acquired Benefit Plan or impose any restrictions or limitations on the ability any Subject Company’s rights to administer, amend or terminate any Acquired Benefit Plan or (iv) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation section 1.280G-1) that would reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in section 280G(b)(1) of the Code). No person is entitled to receive any additional payment (including any tax gross-up or other payment) as a result of the imposition of the excise Taxes required (alone or in combination with any other event) by section 4999 of the Code or any Taxes required by section 409A of the Code as a result of the execution, delivery and performance of this Agreement and the consummation of any of the transactions contemplated by this Agreement.

2.11        Taxes.

(a)          All material U.S. income and other material Tax Returns required to be filed by, on behalf of or with respect to the Subject Companies have been duly and timely filed and all Tax Returns filed by, on behalf of, or with respect to the Subject Companies are true, complete and correct in all material respects. All material Taxes (whether or not reflected on such Tax Returns) required to be paid by or with respect to, or that could give rise to a Lien on the assets of, any of the Subject Companies have been duly and timely paid other than those Taxes not yet due. All Taxes required to be withheld by any of the Subject Companies have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or properly set aside in accounts for such purpose. Except for Permitted Liens, there are no Liens for material Taxes on any of the assets of the Subject Companies.

(b)          No written agreement or other document waiving or extending, or having the effect of waiving or extending, the statute of limitations or the period of assessment or collection of any Taxes with respect to any of the Subject Companies, and no written power of attorney with respect to any such Taxes has been filed or entered into with any Governmental Authority. No Taxes with respect to any of the Subject Companies are currently under audit, examination or investigation by any Governmental Authority or the subject of any judicial or administrative proceeding. No Governmental Authority has asserted or threatened in writing to assert any deficiency, claim or issue with respect to Taxes or any adjustment to Taxes against any of the Subject Companies with respect to any taxable period for which the period of assessment or collection remains open. No jurisdiction (whether within or without the United States) in which any of the Subject Companies has not filed a particular type of Tax Return or paid a particular type of Tax has asserted in writing that any such Subject Company is required to file such Tax Return or pay such type of Tax in such jurisdiction.

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(c)          None of the Subject Companies (i) has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision or any similar provision of state, local or foreign law), in either case that would be binding upon any Subject Company after the Closing Date, (ii) is or has been a member of any affiliated, consolidated, combined or unitary group for purposes of filing Tax Returns or paying Taxes, except for groups whose only members are two or more Subject Companies or (iii) has any liability for the Taxes of any Person (other than another Subject Company) (whether under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign law, as a transferee or successor, pursuant to any Tax sharing or indemnity agreement or other contractual agreements (other than any customary tax sharing or allocation provisions in commercial contracts not primarily related to Taxes and where the aggregate liability thereunder is not material) (“Tax Agreements”), or otherwise).

(d)          None of the Subject Companies shall be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date under Section 481 of the Code (or any corresponding provision of state, local or foreign income Tax law), (ii) installment sale or open transaction disposition made on or prior to the Closing Date, (iii) prepaid amount received on or prior to the Closing Date, (iv) any election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign law) made with respect to any Pre-Closing Tax Period or (v) any distribution made by any Subject Company prior to the Closing. None of the Subject Companies has participated in a reportable transaction within the meaning of Treasury Regulations Section 1.6011-4(b).

(e)          Each Subject Company is classified as a “disregarded entity” for U.S. federal income tax purposes. The Subject Companies and, to the Sellers’ Knowledge, any other entity in which any Subject Company owns an interest, have, since their formation, been classified as either a partnership or a “disregarded entity” for all applicable U.S. federal, state and local income Tax purposes and will be so classified for all periods through and including the Closing Date. No Subject Company has made an entity classification election under Treasury Regulation Section 301.7701-3 for U.S. federal income Tax purposes.

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(f)          (i) None of the Subject Companies is or has been a controlled foreign corporation, as defined in Section 957 of the Code and (ii) no Subject Company holds an interest (directly or indirectly) in an entity that is or has been treated as a passive foreign investment company, as defined in Section 1297 of the Code.

(g)          Any incentive equity interests issued by any Subject Company that were intended to qualify as “profits interests” in a partnership for U.S. federal income tax purposes and any comparable provisions of state, local or non-U.S. tax law have been consistently treated as such by the issuers and holders thereof for all relevant taxable years.

(h)          None of the assets of any of the Subject Companies are “section 197(f)(9) intangibles” within the meaning of Treasury Regulations section 1.197-2(h)(l)(i).

2.12         Properties and Assets.

(a)          Each Subject Company has a valid and enforceable leasehold interest in each of the leased premises in which it currently conducts its business, except as may be affected by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles. Section 2.12(a) of the Seller Disclosure Letter identifies, as of the date hereof, all of the leases for real property to which each Subject Company is a party (the “Leases”). Except as set forth in Section 2.12(a) of the Disclosure Letter, the Leases constitute all real property owned, leased, subleased, licensed or otherwise used in the operation of the Business. The Sellers have previously provided or otherwise made available to Apollo true, complete and correct copies of such Leases. As of the date hereof, except as would not reasonably be expected to have, individually or in the aggregate, be Material to a Reasonable Investor, there is no default by the lessee or, to the Sellers’ Knowledge, the lessor under any such lease and to the Sellers’ Knowledge the use and operation of the property subject to the Leases does not violate any Applicable Law. Except as may be affected by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles, (i) each Lease is the legal, valid and binding obligation of the Subject Company party thereto and, to the Knowledge of the Sellers, each other party to such Lease and (ii) each Lease is enforceable against such Subject Company and, to the Knowledge of the Sellers, each other party to such Lease. No Subject Company owns any real property.

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(b)          Except as set forth in Section 2.12(a) of the Disclosure Letter, the Subject Companies own and have (and as of the Closing, shall own and have) good, valid and marketable title to or, in the case of leased property, good and valid leasehold interests in, or otherwise have (and as of the Closing, shall have) full or sufficient and legally enforceable rights to use, all of the properties, assets and rights (tangible or intangible, and real, personal or mixed) used or held for use in connection with, necessary for the conduct of, or otherwise material to the operations of, the Business as it is conducted as of the date hereof and as it will be conducted immediately prior to the Closing, in each case free and clear of any Lien other than Permitted Liens, except for any failure to have any such title, interest or right that would not, individually or in the aggregate, be Material to a Reasonable Investor. The Subject Companies have maintained in all material respects all tangible assets in good repair, working order and operating condition, subject only to ordinary wear and tear, except for any failure to be in good repair, working order or operating condition that would not, individually or in the aggregate, be Material to a Reasonable Investor.

2.13        Certain Labor Matters. No Subject Company is a party to, and none of the Employees are covered by, any collective bargaining agreement.

2.14        Material Contracts. Section 2.14 of the Seller Disclosure Letter lists each Material Contract in effect as of the date of this Agreement (other than the Material Contracts described in clause (xviii) of the definition thereof). The Sellers have previously provided or otherwise made available to Apollo a true, complete and correct copy of each such Material Contract (other than the Material Contracts described in clause (xviii) of the definition thereof). With respect to the Material Contracts described in clause (xviii) of the definition thereof, the Sellers have previously provided or otherwise made available to Apollo a representative sample of such Material Contracts, and no such Material Contract deviates in any material respect from the sample provided to Apollo. Each Material Contract is a legal, valid and binding obligation of the applicable Subject Company, and, to the Sellers’ Knowledge, each other party thereto, in each case in full force and effect and enforceable in accordance with its terms, except as may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles. No Subject Company or any Seller or Subsidiary thereof has received any written or, to the Sellers’ Knowledge, oral notice of cancellation or termination under any option or right reserved to the other party to any Material Contract or any written or, to the Sellers’ Knowledge, oral notice of default under such Material Contract. As of the date hereof, no condition exists or event has occurred which (whether with or without notice or lapse of time or both) would constitute a breach or default by any Seller or Subject Company or, to the Sellers’ Knowledge, any other party thereto under, or result in a right in termination of, any such Material Contract, except as would not, individually or in the aggregate, be Material to a Reasonable Investor.

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2.15        Intellectual Property and IT Systems.

(a)          Section 2.15(a) of the Seller Disclosure Letter sets forth a true, complete and correct list of all Owned Intellectual Property that is issued, registered or subject to an application for issuance or registration. The Owned Intellectual Property set forth in Section 2.15(a) of the Seller Disclosure Letter is subsisting, and, to the Sellers’ Knowledge, is valid and enforceable. No Subject Company or any Seller or other Subsidiary thereof has conducted the Business in a manner that would reasonably be expected to result in (i) the cancellation or unenforceability of any issued, registered or applied for Owned Intellectual Property except as would not, individually or in the aggregate, reasonably be expected to be Material to a Reasonable Investor, or (ii) the unauthorized disclosure of any material confidential Intellectual Property used in the Business. After giving effect to the transactions contemplated by this Agreement, the Subject Companies shall (x) be the owners of all of the Owned Intellectual Property free and clear of any Liens other than Permitted Liens and (y) own, license or otherwise have the right to use all the Intellectual Property necessary and sufficient to conduct the Business as currently conducted.

(b)          Since January 1, 2014, (i) the conduct of the Business has not been and, as currently conducted, is not infringing, misappropriating, diluting or otherwise violating (“Infringing”) in any material respect the rights of any Person in respect of any Intellectual Property and (ii) to the Sellers’ Knowledge, none of the material Owned Intellectual Property has been or is being Infringed by any Person.

(c)          All Persons (including current and former employees and independent contractors) who create or contribute to any material portion of, or otherwise would have rights in or to, Owned Intellectual Property have executed enforceable written agreements that validly and irrevocably assign to a Subject Company or a Seller or other Subsidiary thereof all of their rights in and to such Owned Intellectual Property, or, pursuant to Applicable Law, a Subject Company or a Seller or other Subsidiary owns all such Owned Intellectual Property.

(d)          Other than as set forth on Section 2.15(d) of the Seller Disclosure Letter, no Subject Company or any Seller or other Subsidiary thereof uses or has used any Software licensed, provided or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any Software that contains or is derived from any such Software, in any manner that would require any source code of Software owned by any of the Subject Companies to be disclosed, licensed pursuant to a license meeting the Open Source Definition or the Free Software Definition, publicly distributed, attributed to any person or dedicated to the public.

(e)          The IT Systems (i) are in reasonably good repair and operating condition, subject only to ordinary wear and tear, and are adequate and suitable (including with respect to working condition and capacity) for the purposes for which they are being used or held for use, and (ii) to the Sellers’ Knowledge, do not contain any Malware that would reasonably be expected to interfere with the ability of any of the Subject Companies to conduct the Business. The Sellers and their Subsidiaries (including the Subject Companies) (x) have implemented and maintain commercially reasonable security, business continuity, and backup and disaster recovery plans and procedures with respect to the IT Systems, (y) act in material compliance therewith, and (z) have taken commercially reasonable steps to test such plans and procedures on a periodic basis, and such plans and procedures have been proven effective upon such testing in all material respects. The Sellers and their Subsidiaries (including the Subject Companies) have implemented or are in the process of implementing in a timely manner all security patches or security upgrades that are generally available for the IT Systems that process data or non-public information that is sensitive in nature about their investors.

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2.16        Data Protection and Privacy.

(a)          Since January 1, 2014, each Subject Company and each Seller and other Subsidiary thereof (to the extent affecting or relating to the Business) has been and is in compliance in all material respects with any and all Applicable Laws, contractual requirements, terms of use and privacy policies pertaining to data protection or information privacy, security, collection, use, disclosure, disposal, maintenance and transmission.

(b)          Each Seller and other Subsidiary thereof (to the extent affecting or relating to the Business) uses commercially reasonable industry standards to protect the secrecy of data and non-public information that it (or any third Person on behalf of it) collects, stores, uses, maintains or transmits and to prevent unauthorized access to, and use or disclosure of, such data or non-public information by any other Person. Since January 1, 2014, no Subject Company or Seller or other Subsidiary thereof or, to the Sellers’ Knowledge, any third Person working on behalf of any of them, has had an incident of unauthorized (i) access, (ii) disclosure, (iii) use, (iv) destruction or (v) loss of any data or non-public information that any of the Subject Companies (or a third Person on behalf of any of them) collects, stores, uses, maintains or transmits.

2.17        Books and Records. The Books and Records have been maintained in all material respects in accordance with all Applicable Laws.

2.18        Broker-Dealer Matters.

(a)          Registration. Section 2.18(a) of the Seller Disclosure Letter lists each Subject Company that is registered as a broker-dealer with the SEC (collectively, the “Broker-Dealer Subsidiaries”). Each Broker-Dealer Subsidiary is, and at all times since January 1, 2014 has been, duly registered under Section 15 of the Exchange Act with the SEC. Each Broker-Dealer Subsidiary is, and at all times since January 1, 2014 has been, (i) in compliance with Applicable Laws governing its activities as a broker-dealer and (ii) current in all filings required by the SEC or any other Governmental Authority to which it is subject, except, in each case, as would not have, individually or in the aggregate be Material to a Reasonable Investor. Except as set forth in Section 2.18(a) of the Seller Disclosure Letter, since January 1, 2014, none of the Broker-Dealer Subsidiaries has received written notice of any material violation of any Applicable Laws governing its activities. The Broker-Dealer Subsidiaries are, and at all times since January 1, 2014 have been, (x) members in good standing of the Financial Industry Regulatory Authority (“FINRA”) and any other Self-Regulatory Organizations in which their membership is required in order to conduct their business as conducted and (y) in compliance with all applicable rules and regulations of FINRA and any such other Self-Regulatory Organizations, except as would not have, individually or in the aggregate, be Material to a Reasonable Investor. As of the date hereof, no Subject Company other than the Broker-Dealer Subsidiaries is registered or required to be registered as a broker or dealer with the SEC or any other Governmental Authority.

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(b)          Disqualification. None of the Broker-Dealer Subsidiaries nor, to the Sellers’ Knowledge, any “associated person” (within the meaning of the Exchange Act) thereof, is ineligible pursuant to Section 15(b) of the Exchange Act to act as a broker or dealer or as an associated person of a registered broker-dealer as a result of a “statutory disqualification,” as such term is defined in Section 3(a)(39) the Exchange Act. As of the date of this Agreement, there are no Proceedings pending or, to the Sellers’ Knowledge, threatened that would reasonably be expected to result in a Broker-Dealer Subsidiary having its authorization to conduct business as a broker-dealer denied, suspended, revoked or restricted. Except as set forth in Section 2.18(b) of the Seller Disclosure Letter, as of the date of this Agreement, there are no Proceedings pending or, to the Sellers’ Knowledge, threatened that would reasonably be expected to result in any director, officer or employee of a Broker-Dealer Subsidiary having his or her registration or license to conduct investment-related activities denied, suspended, revoked or restricted. Since January 1, 2014, each of the directors, officers, employees, contractors and agents employed, supervised or controlled by any Broker-Dealer Subsidiary who is required to be licensed or registered as a principal, registered representative, salesperson, investment advisory representative or insurance agent with any Governmental Authority in connection with his or her activities for or with a Subject Company has been duly licensed or registered, except as would not have, individually or in the aggregate, be Material to a Reasonable Investor.

(c)          Form BD. The Sellers have previously provided or otherwise made available to Apollo true, complete and correct copies of each of the Broker-Dealer Subsidiary’s Form BD as most recently filed with the SEC and all state registration forms, each as amended to date. The information contained in each such form was accurate and complete at the time of filing and the Broker-Dealer Subsidiary has made all amendments to such form as it is required to make under any Applicable Law, except as would not have, individually or in the aggregate, be Material to a Reasonable Investor. No Broker-Dealer Subsidiary’s Form BD contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

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(d)          Minimum Net Capital. Each of the Broker-Dealer Subsidiaries maintains its minimum net capital in compliance with the Applicable Laws of the SEC and any other applicable Governmental Authority and in an amount sufficient to ensure that it has not been required to file notice under Rule 17a-11 under the Exchange Act.

(e)          Compliance Policies. The Broker-Dealer Subsidiaries have, and at all times since January 1, 2014 have had, in place, to the extent required by Applicable Law, processes to establish, maintain, review, test and modify written compliance and supervisory policies and procedures reasonably designed to achieve compliance with all Applicable Laws, including the rules and regulations of the SEC and FINRA and other Governmental Authority.

2.19        Compliance Matters.

(a)          Registration.

(i)          No Subject Company is registered or required to be registered as a transfer agent under the Exchange Act.

(ii)         As of the date hereof, no Subject Company or, in connection with their service to the Subject Company, any of their respective directors, officers or employees, is (i) required to be registered, licensed or qualified as a bank, investment adviser, trust company, commodity pool operator, commodity trading advisor, approved swap firm, commodity broker-dealer, futures commission merchant, introducing broker, municipal advisor, municipal securities dealer, insurance company or insurance broker or agent, or sales person with the SEC, CFTC, National Futures Association (“NFA”), FINRA or any other applicable Governmental Authority, or (ii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified, except, in each case, as would not have, individually or in the aggregate, a Material Adverse Effect. No Subject Company has received notice of any pending judicial, arbitral or administrative action, suit, proceeding or investigation concerning any failure to obtain any bank, investment adviser, trust company, commodity pool operator, commodity trading advisor, approved swap firm, commodity broker-dealer, futures commission merchant, introducing broker, municipal advisor, municipal securities dealer, insurance company or insurance broker or agent, or sales person registration, license or qualification, except for as would not have, individually or in the aggregate, be Material to a Reasonable Investor. No Subject Company acts as a solicitor for a registered investment adviser in an arrangement that is subject to Rule 206(4)-3 under the Advisers Act.

(b)          Filings.

(i)          Except as would not have, individually or in the aggregate, be Material to a Reasonable Investor, each Subject Company has filed all regulatory reports and schedules, applications for registration, financial statements and regulatory notices (“Governmental Reports”), together with any amendments, since January 1, 2014 that were required to be filed with any Governmental Authority.

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(ii)         Each Subject Company has timely paid in full all fees and assessments due and payable in connection with the filing of all Government Reports, except as would not, individually or in the aggregate, be Material to a Reasonable Investor. The information contained in all Government Reports was accurate and complete at the time they were filed except as would not, individually or in the aggregate, be Material to a Reasonable Investor, and did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(c)          Disqualification.

(i)          [intentionally omitted].

(ii)         No Subject Company nor any “affiliated person” (as defined in the Investment Company Act) of any of Subject Company is ineligible pursuant to Section 9(a) or 9(b) of the Investment Company Act to serve as an investment adviser, depositor or principal underwriter to a registered investment company nor is there any Proceeding pending or, to the Knowledge of the Sellers, threatened by any Governmental Authority that would result in the ineligibility of any Subject Company or any such “affiliated person” to serve as an investment adviser, depositor or principal underwriter to a registered investment company pursuant to Section 9(a) or 9(b) of the Investment Company Act.

(iii)        No Subject Company nor, to the Knowledge of the Sellers, after reasonable inquiry, any director, executive officer or any other officer of a Subject Company is ineligible pursuant to Rule 506(d) of Regulation D under the Securities Act to serve as an investment manager, solicitor, promoter or in any other capacity (including beneficially owning 20% of the voting securities of an issuer relying on Rule 506 of Regulation D under the Securities Act) with respect to an offering of securities in reliance on Rule 506 of Regulation D under the Securities Act, nor is there any Proceeding pending or, to the Knowledge of the Sellers, threatened by any Governmental Authority that would result in the ineligibility of any Subject Company or any director, executive officer or any other officer of a Subject Company to serve as an investment manager, solicitor, promoter or in any other capacity with respect an offering of securities in reliance on Rule 506 of Regulation D under the Securities Act.

(iv)        No Subject Company is an “affiliate” of any “banking entity” (as such terms are defined in the Volcker Rule).

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(d)          No Action Letters and Exemptive Orders. Section 2.19(d) of the Seller Disclosure Letter identifies each no-action letter and exemptive order issued by the SEC to any Subject Company that remains applicable to its business as conducted on the date of this Agreement. The Sellers have previously provided or otherwise made available to Apollo a true, complete and correct copy of each such no-action letter and exemptive order. Since January 1, 2014, the Subject Companies, as applicable, have complied with all terms and conditions of such no-action letters and exemptive orders necessary to rely on the relief granted thereby.

2.20        Insurance. Each Seller and its Subsidiaries (including the Subject Companies), as the case may be, has complied in all material respects with the terms and provisions of insurance policies in force on the date hereof covering or relating to the business of, or properties, assets or rights of, any of the Subject Companies that are maintained by (i) any Subject Company or (ii) any of the Sellers or their Subsidiaries (other than the Subject Companies), including such worker’s compensation, comprehensive property and casualty, liability, errors and omissions, directors’ and officers’, fidelity and other insurance required to be maintained under all Applicable Laws, and such insurance policies are in full force and effect (and all premiums due and payable thereon have been paid in full on a timely basis). As of the date hereof, there is no material claim by any Seller or any Subsidiary thereof (including any Subject Company) pending under any such policy as to which coverage has been denied or disputed by the underwriters of such policy or in respect of which such underwriters have reserved their rights. Since January 1, 2014, each Seller and its Subsidiaries (including the Subject Companies) has properly reported all material claims, acts, omissions, events, circumstances, occurrences and losses relating to the Business, or to the properties, rights or assets of any of the Subject Companies, to the extent required under each such policy, except as would not reasonably be expected to have, individually or in the aggregate, be Material to a Reasonable Investor.

2.21        Affiliate Arrangements. Except as set forth on Section 2.21 of the Seller Disclosure Letter, there are no Contracts between any Subject Company, on the one hand, and RCAP, RCAP Holdings or any of their respective Affiliates (other than the Subject Companies), directors, officers, employees or equity holders, on the other hand (any such Contract, an “Affiliate Agreement”). None of RCAP, RCAP Holdings or any of their respective Affiliates (other than the Subject Companies), directors, officers, employees or equity holders owns any material asset or right, real or personal, tangible or intangible, used in the Business by any Subject Company.

2.22        Compliance with Environmental Law. The Subject Companies have complied in the past three years and are in compliance with all applicable Environmental Laws pertaining to any of the properties, assets or rights of the Subject Companies and the use and ownership thereof and the operation of the Business, except as would not, individually or in the aggregate, be Material to a Reasonable Investor. No violation by any Subject Company or Seller or other Subsidiary thereof (to the extent affecting or relating to the Business) is being or has been alleged in writing or, to the Knowledge of the Sellers, orally of any applicable Environmental Law relating to the Business or the operation thereof, or any of the properties, assets or rights of any of the Subject Companies or the use or ownership thereof. There are no Proceedings pending or, to the Knowledge of the Sellers, threatened against any Subject Company or Seller or other Subsidiary thereof (to the extent affecting or relating to the Business) under any Environmental Law.

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2.23         Brokers. No broker, investment banker, financial advisor or other Person, other than Centerview Partners LLC, the fees and expenses of which shall be paid by RCAP, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission from any Subject Company in connection with the transactions contemplated by this Agreement.

Article III

Representations and Warranties of Apollo

Apollo represents and warrants to the Sellers, as of August 6, 2015 and as of the Closing Date, as follows:

3.1          Organization. Apollo is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and, where applicable, is duly qualified or licensed as a foreign limited liability company to do business and is in good standing in each jurisdiction in which the nature of its business or the character or location of the properties, assets and rights owned, leased or operated by it makes such qualification or license necessary, and Apollo has the requisite limited liability company power and authority necessary to own all of its properties, assets and rights and to carry on its business as it is now being conducted, except where any failure to be so qualified, licensed or in good standing or to have such power or authority would not, individually or in the aggregate, be materially adverse to Apollo and its Subsidiaries, in each case, taken as a whole, or prohibit or materially impair the ability of Apollo to consummate the transactions contemplated by this Agreement or any Ancillary Agreement or perform its obligations hereunder or thereunder on a timely basis.

3.2          Authority. Apollo has the requisite corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Apollo of this Agreement and the Ancillary Agreements to which it is a party, the performance of its obligations hereunder and thereunder and the consummation by Apollo of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate or other organizational action, and no other corporate or other organizational action on the part of Apollo is necessary to authorize the execution and delivery by Apollo of this Agreement and the Ancillary Agreements to which it is a party, the performance of its obligations hereunder and thereunder and the consummation by Apollo of the transactions contemplated hereby and thereby. This Agreement has been, and at the Closing each of the Ancillary Agreements to which it is party shall be, duly and validly executed and delivered by Apollo and, assuming the due authorization, execution and delivery by the other parties thereto, constitute a legal and binding obligation of Apollo, enforceable against Apollo in accordance with their terms, except as (a) the enforceability hereof may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) the availability of equitable remedies may be limited by equitable principles of general applicability.

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3.3          Non-Contravention. The execution and delivery by Apollo of this Agreement and the Ancillary Agreements to which it is a party do not, and the consummation by Apollo of the transactions contemplated hereby and thereby and the performance by Apollo of its obligations hereunder and thereunder shall not (with or without the giving of notice, the termination of any grace period or both): (a)  violate, conflict with, or result in a breach or default under any provision of its Organizational Documents or (b) assuming that all consents, authorizations, orders or approvals of, filings or registrations with, and notices to, each Governmental Authority referred to in Section 3.4(a) and all Third Party Consents referred to in Section 3.4(b) have been obtained or made, (i) violate any Applicable Law or (ii) violate, result in a violation or breach by Apollo of, or the termination or the acceleration of, or conflict with or constitute a default under, any Contract to which Apollo is a party or by which any of its property is bound, except, in the case of clauses (i) and (ii), for any such violation, breach, termination, acceleration, conflict or default as would not, individually or in the aggregate, be materially adverse to Apollo and its Subsidiaries, in each case, taken as a whole, or prohibit or materially impair the ability of Apollo to consummate the transactions contemplated by this Agreement or any Ancillary Agreement or perform its obligations hereunder or thereunder on a timely basis.

3.4          Consents, etc.

(a)          No Governmental Approval is required for the execution and delivery of this Agreement by Apollo, the performance of its obligations hereunder and its consummation of the transactions contemplated hereby, except in any such case for (x) any such Governmental Approval which is required solely by reason of the specific regulatory status of RCAP or its Affiliates and (y) any such Governmental Approval the failure of which to be obtained or made would not reasonably be expected to prohibit or materially impair the ability of Apollo to consummate the transactions contemplated by this Agreement or any Ancillary Agreement or perform its obligations hereunder or thereunder on a timely basis.

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(b)          No Third Party Consent is required for the execution and delivery by Apollo of this Agreement and the Ancillary Agreements to which it is a party, the performance by it of its obligations hereunder and thereunder and its consummation of the transactions contemplated hereby or thereby, except in any such case for any such Third Party Consent the failure of which to be obtained or made would not, individually or in the aggregate, be materially adverse to Apollo, taken as a whole, or prohibit or impair the ability of Apollo to consummate the transactions contemplated by this Agreement or any Ancillary Agreement or perform its obligations hereunder and thereunder on a timely basis.

3.5          Available Funds. Apollo has available all funds necessary to satisfy all of its obligations hereunder and in connection with the transactions contemplated hereby, and its ability to consummate such transactions is not dependent or conditional upon the receipt of financing (whether debt or equity) from any third Person.

3.6          Investment Intent. Apollo is acquiring the Acquired Interests for its own account, for investment purposes only and not with a view to, or for resale in connection with, the distribution thereof. Apollo understands that the Acquired Interests may not be sold, transferred or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities Act.

3.7          Brokers. No broker, investment banker, financial advisor or other Person, other than Lazard Ltd, the fees and expenses of which shall be paid by Apollo, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission from Apollo in connection with the transactions contemplated by this Agreement.

Article IV

Covenants

4.1          Conduct of Business. During the period from the date hereof and continuing through the Closing (or, in the case of StratCap, until the closing of the sale of StratCap pursuant to Section 1.5(e)), except to the extent required by Applicable Law, with Apollo’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) or as expressly required by this Agreement, the Sellers shall, and shall cause their Subsidiaries (including the Subject Companies) to, use commercially reasonable best efforts to (i) operate the Business in the ordinary course of business consistent with past practice; (ii) keep available the present services of the Business’ employees and other independent contractors; (iii) preserve intact the Business and the Subject Companies’ rights, franchises, goodwill and relations with customers and others with whom the Subject Companies conduct business; and (iv) maintain regulatory net capital at a level that is in compliance with Applicable Laws. Without limiting the generality of the foregoing, except to the extent required by Applicable Law, with Apollo’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), as expressly required by this Agreement, or as set forth on Section 4.1 of the Seller Disclosure Letter, the Sellers shall not, and shall cause their Subsidiaries (including the Subject Companies) not to, to the extent affecting the Business, any Subject Company or the transactions contemplated hereby (including the likelihood and timing of the satisfaction of the conditions to the Closing):

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(a)          amend the Organizational Documents of any Subject Company;

(b)          issue or agree to issue, sell, pledge, transfer, dispose of or encumber any Equity Securities of any Subject Company, or reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any Equity Securities of any Subject Company;

(c)          declare, set aside or pay any dividends on, or make any other distributions of stock or property (but not cash) in respect of, any Equity Securities of any Subject Company, in each case other than (A) in accordance with Section 1.1(d) or (B) in the case of StratCap or any of its Subsidiaries, any such dividends or other distributions that are paid from operating cash flow of StratCap or such Subsidiary;

(d)          except (A) as expressly contemplated by this Agreement or (B) with respect to new dealer manager agreements entered into in the ordinary course of business consistent with past practice in respect of new direct investment products and/or programs, modify or amend or enter into any Affiliate Agreement, or waive, release or assign any rights or claims thereunder;

(e)          make any material change in any financial accounting methods, principles or practices used by any Subject Company in the preparation of financial statements except as required by GAAP or Applicable Law;

(f)          enter into, renew, amend, assign, terminate or cancel any Material Contract of the type set forth in the definition of Material Contract, except in the ordinary course of business consistent with past practice (provided that, without limiting the foregoing, the entering into or renewal of any Material Contract described in clauses (ii), (iii), (iv), (vi), (vii), (viii), (ix), or (xvii) of the definition of Material Contract shall in no event be deemed to be in the ordinary course consistent with past practice);

(g)          other than in the ordinary course of business consistent with past practice, (i) sell, assign, transfer, license, lease, offer to sell, abandon or otherwise dispose of any of its properties, assets or rights, or (ii) grant or suffer to exist any Lien (other than Permitted Liens) on any of the properties, assets or rights of the Subject Companies or otherwise used in the Business, in each case of clauses (i) and (ii) above, with respect to properties, assets or rights that are material to the Subject Companies or the Business, in each case, taken as a whole;

(h)          cancel any debts owed to any Subject Company in amounts in excess of $50,000 individually or $250,000 in the aggregate;

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(i)          make or commit to make any capital expenditures in excess of $20,000 individually or $200,000 in the aggregate for all Subject Companies;

(j)          except as required by any Employee Benefit Plan in effect on the date hereof or Applicable Law, (i) increase the compensation or benefits payable or to become payable to any Employees or directors or other independent contractors of the Subject Companies or the Business, other than to increase salary and wages for Employees with annual total compensation opportunities no greater than $150,000 by not more than 7.5% on an individual employee basis in the ordinary course of business consistent with past practice, (ii) grant any current or former Employee, director or other independent contractor of the Subject Companies or the Business any increase in severance or termination pay or benefits, (iii) other than new hires of six external wholesalers who are compensated on terms consistent with the Subject Companies’ historic precedent, enter into any employment, consulting, severance or termination agreement with any officer, director, Employee or other independent contractor, other than offer letters with newly hired employees that are entered into in the ordinary course of business consistent with past practice, that provide for annual total compensation opportunities that are no greater than $150,000, are terminable by a Subject Company at will at any time for severance pay and benefits not greater than $150,000 and that otherwise contain terms substantially comparable to the Subject Company’s standard offer letter, (iv) pay any bonus or other incentive compensation (including any retention, change-in-control or transaction-related bonus) other than the payment of any bonus or other incentive compensation earned or granted prior to the date hereof, in accordance with the terms of such compensation as in effect on the date hereof (including the satisfaction of any applicable performance or vesting criteria and timing of payment contemplated under such terms), (v) establish, adopt, enter or terminate any collective bargaining agreement, Acquired Benefit Plan or, if it would have the effect of increasing any liabilities, costs or expenses of the Subject Companies, any Employee Benefit Plan, (vi) accelerate or enhance any rights or benefits or fund benefits under any Acquired Benefit Plan, or (vii) terminate the employment of more than six external wholesalers or any Employee or other independent contractor (other than for cause or misconduct, without violating any other clause of this Section 4.1(j)) who has annual total compensation (base salary and incentive) opportunities of $150,000 or more;

(k)          incur or assume any Indebtedness or otherwise take any action with respect to Indebtedness that would result in the acceleration of any material amounts payable by any Subject Company;

(l)          merge or consolidate with, or acquire all or a material portion of the assets or Equity Securities of, any other Person, or acquire, including by way of merger, consolidation or purchase of any Equity Securities or assets, any business of any Person or other business organization or division thereof;

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(m)          settle any Proceeding involving any liability for money damages or in a manner involving non-monetary relief that results in any material restrictions upon the conduct of the Business or any of the Subject Companies (or, after the Closing, on Apollo or any of its Affiliates);

(n)          make any loan or advance to any of its Affiliates, officers, directors, employees, consultants, agents or other representatives of any Subject Company or any Seller or other Subsidiary thereof;

(o)          acquire any real property or enter into any lease of real property (other any renewal of existing leases in the ordinary course of business consistent with past practice);

(p)          make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, amend any material Tax Returns or file any claims for material Tax refunds, enter into any material closing agreement, settle any material Tax claim, audit or assessment or surrender any right to claim a material Tax refund, offset or other reduction in Tax liability;

(q)          (i) except pursuant to existing agreements or in accordance with past practice, make any payment to, or on behalf of, any Seller or any Affiliate of any Seller (other than any Subject Company); (ii) incur any liability to, or on behalf of, any Seller or any Affiliate of any Seller (other than any Subject Company), including in the case of clauses (i) and (ii), with respect to (x) any fees, costs or expenses in connection with the sale of the Subject Companies, the preparation and negotiation of this Agreement and the performance and consummation of transactions contemplated by this Agreement or the other Ancillary Agreements, including the fees and disbursements of counsel, financial advisors, actuaries and accountants and authorities made in connection with the transactions contemplated by this Agreement or (y) any filing fees payable in connection with filings with Governmental Authorities made in connection with the transactions contemplated by this Agreement;

(r)          waive any payments or other amounts owed to any of the Subject Companies by any Seller or any Affiliate thereof (other than a Subject Company);

(s)          enter into any new line of business than the Business currently conducted by such Subject Company; and

(t)          authorize, resolve, commit or agree, whether in writing or otherwise, to take any action prohibited by subsections (a) through (s) above.

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4.2          Access; Confidentiality; Planning Committee.

(a)          The Sellers shall provide Apollo and its employees, accountants, counsel and other authorized representatives, during the period from the date hereof until the Closing (or, in the case of StratCap, until the closing of the sale of StratCap pursuant to Section 1.5(e)), with reasonable access to the premises, employees, books and records and properties of each Subject Company and of the Sellers and their other Subsidiaries (to the extent relating to the Business), upon reasonable advance notice during normal business hours, provided that such access does not interfere with the normal operations of the Subject Companies or the Sellers and their other Subsidiaries. The Sellers shall, and shall cause each Subject Company to, furnish Apollo with such financial, operational and regulatory and compliance data, reports and other information relating to the Business or the Subject Companies and their respective properties, assets, rights, liabilities and obligations, in each case as Apollo may from time to time reasonably request. Notwithstanding the obligations contained in this Section 4.2(a), the Sellers and the Subject Companies shall not be required to provide access to or to disclose information where such access or disclosure would result in the loss of any attorney-client privilege or contravene any Applicable Law; provided that the Sellers shall use reasonable best efforts to permit disclosure of such information in a manner that does not result in any of the foregoing consequences.

(b)          Any information obtained by Apollo or its representatives pursuant to Section 4.2(a) shall be subject to the terms of the Confidentiality Agreement, and such information shall be held by Apollo and its representatives in accordance with the terms of the Confidentiality Agreement.

(c)          From and after the date of this Agreement, the Sellers shall, and shall cause their Subsidiaries (including, until the Closing, the Subject Companies) to, hold in strict confidence and not use except as expressly agreed in writing by Apollo any non-public, confidential or otherwise proprietary information or Intellectual Property (including any client and customer lists) of any Subject Company (except, prior to the Closing, in the conduct of the business of such Subject Company consistent with past practice). Without limiting the foregoing, the Sellers shall not, and shall not permit StratCap or its Subsidiaries to, use or have access to any non-public, confidential or otherwise proprietary information or Intellectual Property of RCS (including any client and customer lists prior to the Closing). The Sellers shall use commercially reasonable efforts to prevent the unauthorized use, dissemination or disclosure of any information or Intellectual Property described in this Section 4.2(c).

(d)          Promptly following the date of this Agreement, the Sellers and Apollo shall form a joint planning committee, consisting of representatives of RCS and Apollo, that shall meet regularly to coordinate and cooperate with respect to the design and launch of credit, alternative investment, insurance-related or other institutional products sponsored by Apollo or its Affiliates with the goal of distributing such products through RCS.

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4.3          Reasonable Best Efforts; Regulatory Approvals.

(a)          Each of Apollo and the Sellers shall use its reasonable best efforts to, as promptly as possible, take or cause to be taken all action and do or cause to be done all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, including the satisfaction on a timely basis of the conditions to the Closing within their respective control. Each of Apollo and the Sellers shall use its reasonable best efforts to, as promptly as practicable and in no event later than ten (10) Business Days after the date hereof, file all documents and information required in connection with obtaining FINRA Approval (the “FINRA Notice”).

(b)          Without limiting the generality of Section 4.3(a) hereof, each of Apollo and the Sellers shall (i) as soon as practicable after the date hereof, (A) file (on a confidential basis if reasonably requested by a party and permitted under Applicable Law) such applications, notices, registrations and requests as may be required or advisable to be filed by it with any Governmental Authority as set forth in Section 4.3 of the Seller Disclosure Letter in order to consummate the transactions contemplated hereby, (B) use its reasonable best efforts to obtain all consents, authorizations, orders and approvals of all such Governmental Authorities referred to in the preceding clause (A) and (C) use its reasonable best efforts to satisfy all conditions, undertakings and requirements as may be necessary or appropriate to obtain all such consents, authorizations, orders and approvals or as may be set forth therein, (ii) subject to Applicable Law restricting the exchange of such information, furnish the other parties hereto with copies of all documents and correspondence (x) prepared by or on behalf of such party for submission to any Governmental Authority and (y) received by or on behalf of such party from any Governmental Authority, in each case, in connection with the transactions contemplated hereby and (iii) subject to Applicable Law, use its reasonable best efforts to consult with and keep the other parties hereto informed as to the status of such matters. Subject to Applicable Law, to the extent that any application, notice, registration or request so filed by any party contains any significant information relating to the other parties hereto or any Subject Company, prior to submitting such application, notice, registration or request to any Governmental Authority, such party shall permit the other parties to review such information and shall consider in good faith the suggestions of such other parties with respect thereto.

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(c)          Without limiting the generality of Section 4.3(a) hereof, and subject to Applicable Law, each of Apollo and the Sellers will use reasonable best efforts to cooperate with the others in the preparation and filing of any applications, notices, registrations and responses to requests for additional information from Governmental Authorities in connection with the transactions contemplated by this Agreement, including providing such information as may be reasonably necessary for inclusion in such applications, notices, registrations and responses. Each of Apollo and the Sellers shall use reasonable best efforts to agree to any requirements of or remedies imposed by the applicable Governmental Authority; provided that in no case shall Apollo or any of its Affiliates be required to agree to any FINRA Burdensome Condition or such remedies or requirements that (i) would be materially adverse to Apollo and its Affiliates, including, after the Closing, the Subject Companies, or (ii) involves divestiture of an existing business of Apollo or any of its Affiliates, including, after the Closing, the Subject Companies (each of the foregoing, a “Burdensome Condition”). Each of Apollo and the Sellers shall promptly advise the other parties upon receiving any communication relating to the transactions contemplated by this Agreement or any Ancillary Agreement or otherwise materially affecting its ability to timely consummate the transactions contemplated by this Agreement pursuant to the terms hereof from any Governmental Authority.

(d)          The Sellers shall not, and shall cause their Subsidiaries not to, (i) effect the sale of any their respective assets or Equity Securities if such sale would subject the transactions contemplated by this Agreement to lender consent under the RCAP Credit Facilities, or (ii) enter into any Contract or other arrangement, whether oral or written, to effect any transaction (including any acquisition or merger) that would require Sellers obtain any additional Third Party Consent or consent, authorization, order or approval of any Governmental Authority that would, in either case, reasonably be expected to prevent or materially delay the ability of the Sellers to complete the transaction contemplated by this Agreement or perform their obligations hereunder.

(e)          To the extent that any Third Party Consent is required under any Contract in connection with the consummation of the transactions contemplated by this Agreement, the Sellers and the Subject Companies shall use their reasonable best efforts to obtain such Third Party Consent on or prior to the Closing Date. Notwithstanding anything to the contrary herein, the Sellers and the Subject Companies shall not agree to any economic concessions (including any fee reduction or waiver, increase in payments or seller commissions, new non-cash compensation arrangement, reimbursement obligation, expense cap or similar offset or arrangement, or any reduction in commitment amount, investment period or fund term), except as set forth on Section 4.3(e) of the Seller Disclosure Letter, without the written consent of Apollo in its sole discretion, which consent shall not be unreasonably withheld, conditioned or delayed.

(f)          The Sellers shall use their commercially reasonable efforts to, as promptly as practicable, enter into the StratCap Waiver, in a form reasonably acceptable to Apollo, with Strategic Capital Companies, LLC and Carter Validus Holdings I, LLC; provided that, if, after exercising commercially reasonably efforts for a period of not less than ninety (90) days, the Sellers reasonably determine that they will be unable to obtain the StratCap Waiver, the Sellers will have no further obligation under this Section 4.3(f) to seek the StratCap Waiver.

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4.4          Communications; Confidentiality.

(a)          Prior to the Closing, neither the Sellers or their Subsidiaries shall, without the prior written approval of Apollo, make any internal or external communication, statement or announcement (whether to their employees, clients, customers, business partners, equity holders or otherwise) regarding this Agreement or the transactions contemplated hereby, or otherwise disclose any of the contents of this Agreement, unless otherwise required by Applicable Law, in which case the Person making such disclosure shall give prior written notice to Apollo and consider in good faith Apollo’s suggestions with respect thereto.

(b)          The parties shall be bound by and comply with the provisions set forth in the Confidentiality Agreement, the provisions of which are hereby incorporated herein by reference; provided that, effective upon the Closing, Apollo’s obligations under the Confidentiality Agreement shall terminate with respect to information to the extent relating to the Subject Companies and with respect to disclosure relating to the transactions contemplated hereby.

4.5          Supplemental Disclosure. Each of Apollo and the Sellers shall, prior to the Closing, give prompt notice to the other parties, to the extent it has Knowledge (i) of the occurrence, or failure to occur, of fact, event, circumstance, occurrence or existence of any condition, that has caused or could reasonably be expected to cause any of its representations or warranties contained in this Agreement to be untrue or inaccurate in any material respect at any time after the date of this Agreement such that the conditions to closing set forth in Sections 5.2 or 5.3, as applicable, would reasonably be expected not to be met; (ii) of the occurrence of any matter or event, that would, in the case of the Subject Companies, have a Material Adverse Effect, or, in the case of Apollo, prohibit or materially impair the ability of Apollo to consummate the transactions contemplated by this Agreement or any Ancillary Agreement or perform its obligations hereunder or thereunder on a timely basis; (iii) of any failure on its part to comply with or satisfy, in any material respect, any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; (iv) of any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement and (v) of any lawsuit, action or proceeding pending or, to the Knowledge of Apollo or to the Knowledge of the Sellers (as applicable), threatened against the party or the parties relating to the transactions contemplated herein; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under this Agreement; provided, further, that any failure to comply with this Section 4.5 shall not in and of itself constitute a breach or noncompliance of a covenant by such party for purposes of determining the satisfaction of the conditions set forth in Section 5.2(b) or Section 5.3(b) or for purposes of Section 7.1(a)(ii) or Section 7.2(a)(ii). In addition, the Sellers shall provide to Apollo promptly after the filing thereof a true, complete and correct copy of each Governmental Report filed by any Subject Company after the date hereof and prior to the Closing.

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4.6          Third Party Proposals. The Sellers shall not, nor shall they permit any of their respective Affiliates, and shall use reasonable best efforts to not permit any of its or their respective Affiliates’ officers, directors, employees, representatives or agents, including any investment banker, attorney or accountant engaged by any of them to, directly or indirectly solicit, encourage or facilitate inquiries or proposals, or enter into any agreement with respect to, or initiate or conduct any negotiations or discussions with any Person (other than Apollo and its Affiliates) concerning, any purchase of all or a significant portion of the assets of any Subject Company or of any capital stock of or other ownership interest in any Subject Companies or any merger or business combination involving any Subject Company (each, an “Acquisition Proposal”), or furnish any information to any Person (other than Apollo and its Affiliates) contacting them or making an inquiry with respect to a potential Acquisition Proposal. For the avoidance of doubt, nothing in this Section 4.6 shall restrict the Sellers (or their Affiliates) from initiating or conducting any negotiations or discussions with any Person concerning the purchase or sale of, or a merger or business combination involving, Cetera or RCAP (excluding the Subject Companies).

4.7          Financial Statements; Cooperation.

(a)          The Sellers shall promptly deliver to Apollo, within twenty-five (25) days of the end of each month from the date hereof and until the Closing (or, in the case of StratCap, until the closing of the sale of StratCap pursuant to Section 1.5(e)), an unaudited consolidated balance sheet of each of the Acquired Companies, together with the related unaudited consolidated statement of income and changes in members’ equity for the fiscal period then ended, accompanied by a column detailing the assets, liabilities, revenue and expenses of the Excluded RCS Business and a column detailing the revenue and expenses associated with the Marketing/Event Business to be transferred to a Subject Company prior to the Closing.

(b)          The Sellers shall prepare and deliver, or cause to be prepared and delivered, to Purchaser, at Apollo’s expense, each of the following (the “Required Financial Statements”):

(i)          as soon as practicable after the date hereof, the audited combined balance sheet of the Business as held and conducted by the Sellers and their Subsidiaries as of December 31, 2014, and the related audited combined statements of income, cash flows and changes in members’ equity and footnotes for the twelve months ended December 31, 2014; and

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(ii)         no later than the Stub Financials Delivery Date, (i) an unaudited balance sheet of the Business as held and conducted by the Sellers and their Subsidiaries as of the Stub Financial Date, and the related unaudited combined statements of income, cash flows and changes in members’ equity and footnotes for the period commencing January 1, 2015 and ending on the Stub Financial Date, and (ii) an unaudited balance sheet of the Business as held and conducted by the Sellers and their Subsidiaries as of the date that is one year prior to the Stub Financial Date, and the related unaudited combined statements of income, cash flows and changes in members’ equity for the period commencing January 1, 2014 and ending on the date that is one year prior to the Stub Financial Date.

The “Stub Financial Date” shall mean September 30, 2015. The “Stub Financials Delivery Date” means the date that is ninety (90) days following the Stub Financial Date.

(c)          The Required Financial Statements (including the notes thereto) will be prepared from the books and records of the Sellers and their Subsidiaries and present fairly in all material respects the consolidated financial position, consolidated results of the operations and consolidated cash flows of the Business, as applicable, for the periods set forth therein (subject, in the case of financial statements for interim periods, to normal year-end adjustments, which will not be material to the Business, taken as a whole). Prior to the Closing, at Apollo's expense, the Sellers will use their reasonable best efforts to, and will cause the Subject Companies and their respective officers, employees, consultants, counsel, advisors and other representatives (collectively, “representatives”) to use reasonable best efforts to, provide such cooperation and assistance as may be reasonably requested by Apollo (in each case as promptly as reasonably practicable following such request) in connection with preparing any financial statements or other information that will be consolidated with, or otherwise reflected or referenced in, any forms, statements and reports of Apollo filed with or furnished to the SEC. The Sellers agree that none of the information supplied in writing by or their behalf prior to the Closing for use in any Required Financial Statements will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

4.8          Non-Solicitation; Non-Competition.

(a)          During the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly (including, without limitation, through the Sellers’ or their respective controlled Affiliates’ representatives), solicit or hire for employment (whether as an employee, consultant or temporary employee) any employee of the Subject Companies, except that this paragraph shall not preclude the Sellers or any other person from entering into discussions with or soliciting or hiring any person who (i) responds to any public advertisement or general solicitation, (ii) has left the employ of the Subject Companies or their Affiliates three months prior to commencement of discussions with the soliciting party or (iii) has been terminated by the Subject Companies or their Affiliates.

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(b)          At any time prior to the earlier of (x) the sale and transfer of StratCap to Apollo and (y) December 31, 2017, Apollo agrees that neither it nor any of its controlled Affiliates shall, without a Seller’s prior written consent, directly or indirectly (including, without limitation, through Apollo’s or its controlled Affiliates’ representatives), solicit or hire for employment (whether as an employee, consultant or temporary employee) any employee of StratCap or its Subsidiaries, except that this paragraph shall not preclude Apollo or any other person from entering into discussions with or soliciting or hiring any person who (i) responds to any public advertisement or general solicitation, (ii) has left the employ of StratCap or such Subsidiary or their Affiliates three months prior to commencement of discussions with the soliciting party or (iii) has been terminated by StratCap or such Subsidiary or their Affiliates.

(c)          During the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly (including, without limitation, through the Sellers’ or their respective controlled Affiliates’ representatives), solicit, endeavor to entice away from the Subject Companies or their Affiliates, or otherwise directly or indirectly interfere with the relationship of the Subject Companies or any of their Affiliates, with any Person or entity who is as of the Closing Date, or was within the twelve month period preceding the Closing Date, a customer, client (including other broker dealers) or, to the knowledge of the Sellers, a prospective customer or client (including other broker dealers), of the Subject Companies.

(d)          During the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly, for itself or on behalf of or in conjunction with any Person, whether as an agent, partner, joint venture, investor or otherwise, engage in any Competitive Enterprise; provided that the restrictions contained in this Section 4.8(c) shall not apply to the business conducted by Hatteras Funds, LLC and its Subsidiaries of sponsoring and distributing investment companies and  private investment funds (other than non-traded REITS and BDCs) and shall not apply to StratCap. The restrictions applicable to the Hatteras Funds, LLC pursuant to this section shall terminate following a bona fide sale, transfer or other disposition of all of the capital stock of the applicable entity to an Independent Third Party.

(e)          For purposes of this Agreement:

(i)          “Competitive Enterprise” means any business or business enterprise that (x) provides wholesale brokerage services, as that term is generally understood in the industry and including without limitation the services provided by the Acquired Companies (including, notwithstanding anything to the contrary in this Agreement, SC Distributors), and (y) raises or sponsors public or private, traded or non-traded investment companies (as defined in the Investment Company Act of 1940 without taking into account any exceptions from that definition); and

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(ii)         “Restricted Period” means the period commencing on the Closing Date and ending on the fifth (5^th) anniversary thereof.

(f)          Apollo and the Sellers agree that the covenants included in Section 4.8 are, taken as a whole, reasonable in their geographic and temporal coverage and are necessary to protect the goodwill of the businesses of the Subject Companies, and the substantial investment made by Apollo, and the Sellers shall not raise any issue of geographic or temporal reasonableness in any proceeding to enforce such covenant, provided, however, that if the provisions of Section 4.8 should ever be deemed to exceed the time or geographic limitations or any other limitations permitted by Applicable Law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the minimum extent required by Applicable Law to cure such problem and such provisions shall be enforced with such reforms. Without intending to limit the remedies available to Apollo, the Sellers acknowledge that a breach of any of the covenants contained in this Section 4.8 shall result in material irreparable injury to Apollo and the Subject Companies for which there is no adequate remedy at law, that it shall not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, Apollo shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, restraining the Sellers and their Subsidiaries from engaging in activities prohibited by this Section 4.8 or such other relief as may be required specifically to enforce any of the covenants in this Section 4.8.

4.9          Termination of Affiliate Agreements. Except as set forth in Section 4.9 of the Seller Disclosure Letter, effective at the Closing, all Affiliate Agreements shall be terminated without any further right, obligation or liability of any Person thereunder.

4.10        Expenses. Except as expressly set forth herein, each party shall bear the fees, costs and expenses of it, its Subsidiaries (including, in the case of the Sellers, the Subject Companies) incurred in connection with the negotiation and preparation of this Agreement and the Ancillary Agreements, and the consummation of the transactions contemplated hereby (including legal, accounting and financial advisors).

4.11        [Intentionally omitted.]

4.12        Employee Matters.

(a)          On or prior to the Closing Date, the Sellers shall use their commercially reasonable efforts to transfer, or cause to be transferred, effective as of immediately prior to the Closing Date, the employment of any Employees of the Business (other than Employees of the Subject Companies) to any of the Subject Companies designated in writing by Buyer at least ten (10) business days prior to the Closing Date; provided that the Sellers shall be solely responsible for any severance pay or benefits that becomes due to any such Employees solely as a result of such transfer of employment and any other obligations to such Employee (including any liabilities under any Seller Benefit Plan) for any period of service prior to the date of such transfer. On or prior to the Closing Date, the Sellers shall transfer, or cause to be transferred to Sellers or their Affiliates (other than the Subject Companies) the employment of any Employees any of the Subject Companies primarily engaged in the Excluded RCS Business and any other Employees that Sellers and Apollo mutually agree in writing to allow to be transferred to Sellers effective as of the Closing Date; provided that the Sellers shall be solely responsible for any severance pay or benefits that becomes due to any such Employees solely as a result of such transfer of employment and any other obligations to such Employee (including any liabilities under any Seller Benefit Plan) for any period of service prior to, or after, the date of such transfer.

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(b)          As of the Closing, the Acquired Companies shall terminate their participation in each Seller Benefit Plan and in no event shall any Employee be entitled to accrue any benefits under such Seller Benefit Plans with respect to services rendered or compensation paid on or after the Closing Date, except for rights that have vested prior to or at the Closing. Without limiting the foregoing, the Sellers shall retain responsibility for all claims incurred by Employees (and their covered dependents) prior to the Closing under all Seller Benefit Plans. To the extent any of the Acquired Benefit Plans cover employees of Seller and its Affiliates, other than the Employees, the Sellers shall, as of the Closing, assume all liability in respect of such Persons under the applicable Acquired Benefit Plans.

(c)          Apollo shall assume, and Subject Companies shall retain, all liability in respect of vacation accrued by any such individuals in respect of the period ending on the Closing Date, except to the extent any payment in respect of accrued vacation is required by Applicable Law as a result of the transactions contemplated by this Agreement.

(d)          Effective no later than the Closing (but conditioned upon the Closing having occurred), RCAP shall award the Employees the restricted stock awards that Sellers and the Subject Companies have accrued, as of that date, in respect of bonuses for the full 2015 fiscal year. In addition, prior to the Closing, RCAP and its board of directors shall take all actions necessary to provide that, effective as of the Closing (but conditioned upon the Closing having occurred), all unvested restricted stock awards of the Employees then outstanding shall immediately become one-hundred percent (100%) vested and freely transferable, other than any transfer restrictions imposed by Applicable Law.

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(e)          Without limiting the generality of Section 9.7, the provisions of this Section 4.12 are solely for the benefit of the Sellers and Buyer, and no current or former Employee, director or service provider of the Subject Companies or the Business or any other Person shall be regarded for any purpose as a third-party beneficiary of this Section 4.12. In no event shall the terms of this Section 4.12 be deemed to (i) establish, amend, or modify any Employee Benefit Plan (including any Acquired Benefit Plan) or any “employee benefit plan” as defined in Section 3(3) of ERISA or any other benefit plan, program, agreement or arrangement maintained or sponsored by Buyer or any of its Affiliates (including, following the Closing, the Subject Companies); (ii) alter or limit the ability of Buyer or any of its Affiliates (including, following the Closing, the Subject Companies) to amend, modify or terminate any Acquired Benefit Plan, or any other benefit plan, program, agreement or arrangement after the Closing; or (iii) confer upon any current or former Employee, director or other service provider or other Person any right to employment or continued employment or continued service with Buyer or any of its Affiliates (including, following the Closing, the Subject Companies), preclude the ability of Buyer or any of its Affiliates (including, following the Closing, the Subject Companies) to terminate the employment or services of or demote the position of any employee for any reason, or constitute or create an employment agreement with any such Person.

(f)           In respect of calendar year ending December 31, 2015, the minimum contractually required aggregate cash bonus compensation payable to existing employees of the Business (the “Aggregate Cash Bonuses”) is $1,200,000. No later than March 1, 2016, RCAP will pay, or cause to be paid, to Apollo the Aggregate Cash Bonuses.

4.13        Pre-Closing Restructuring Actions. As promptly as practicable after the date hereof (and in any event, prior to the Closing), the Sellers shall, at the Sellers’ expense, cause the actions and transactions described in Section 4.13 of the Seller Disclosure Letter (the “Pre-Closing Restructuring Actions”) to be implemented as set forth therein, and shall indemnify Apollo and its Affiliates (including, from and after the Closing, the Subject Companies) from any liability or obligation arising in connection with such actions or transactions.

4.14        Separation and Transition Matters; Commingled Contracts.

(a)          Transition Planning. By no later than ten (10) days after the date hereof, the Sellers, the Acquired Companies and Apollo shall appoint a transition team to cooperate in good faith to develop, and such transition team shall develop, a plan for the separation described in Section 4.14(b) so as to minimize the adverse impact of such separation on the businesses of each.

(b)          Separation of SC IT Systems and Retained Seller IT Systems. As soon as practicable after the date hereof, the Sellers shall, and shall cause their Subsidiaries to, at the Sellers’ expense, in compliance with Applicable Law, separate logically and physically the SC IT Systems from the Retained Seller IT Systems in such a manner that the Retained Seller IT Systems are not accessible to the Subject Companies and the SC IT Systems are not accessible to the Sellers or their Subsidiaries (other than the Subject Companies), except as and to the extent such access is necessary for the provision or receipt of services pursuant to the Ancillary Agreements or as otherwise set forth herein, and, in undertaking such separation, shall take all commercially reasonable precautions necessary to safeguard the confidentiality of any confidential information (including all data) of the Business.

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(c)          Internal RCAP Commingled Contracts. Promptly after the date hereof, the Sellers shall, and shall cause each of their Subsidiaries to, use commercially reasonable efforts to identify all Internal RCAP Commingled Contracts, provide a schedule of such identified Internal RCAP Commingled Contracts to Apollo, and supplement such schedule from time to time after the initial delivery thereof if additional Internal RCAP Commingled Contracts are subsequently identified. Upon Apollo’s request, with respect to any Internal RCAP Commingled Contract, the Sellers, the Subject Companies and Apollo shall, and shall cause their respective Subsidiaries to, use commercially reasonable efforts to (i) cause the counterparty to any such Internal RCAP Commingled Contract to enter into a new contract with Apollo or its designee, on terms substantially similar to those contained in such Internal RCAP Commingled Contract including with respect to pricing, in order for the Business to receive the applicable benefits under such Internal RCAP Commingled Contract (each such new contract, a “New Business Contract”), or (ii) if practicable, assign to Apollo or its designee the benefits and obligations under such Internal RCAP Commingled Contract as they relate to the Business. If the Sellers, the Subject Companies and Apollo and their respective Subsidiaries are not able to obtain a New Business Contract with a counterparty to any such Internal RCAP Commingled Contract or assign such Internal RCAP Commingled Contract prior to the Closing, then (x) the Sellers, the Subject Companies, and Apollo and their respective Subsidiaries shall continue, following the Closing, to use commercially reasonable efforts to cause such counterparty to enter into a New Business Contract or assign to Apollo or its designee the benefits and obligations under such Internal RCAP Commingled Contract as they relate to the Business, and (y) until such time as a New Business Contract is executed or an Internal RCAP Commingled Contract is so assigned, the Sellers, the Subject Companies and Apollo shall use and shall cause their respective Subsidiaries to use commercially reasonable efforts to secure an alternative arrangement reasonably satisfactory to both parties under which the Business would, in compliance with Applicable Law, obtain the benefits associated with the applicable Internal RCAP Commingled Contract such that the Business would be placed in a substantially similar position as if a New Business Contract were executed. All fees, costs and expenses incurred under or in connection with this Section 4.14(c) shall be borne by the Sellers (other than the fees charged in the ordinary course of performance under any New Business Contract, which shall be borne by Apollo and its Affiliates).

4.15        Intellectual Property Cross-License

(a)          From the Sellers to Apollo. Subject to compliance with the terms and conditions hereof, and effective as of the Closing, each Seller, on behalf of itself and its Subsidiaries (other than the Subject Companies), hereby grants to Apollo and its Affiliates (whether in existence as of the date hereof or at any time in the future, including the Subject Companies) a non-exclusive, worldwide, perpetual, irrevocable, non-transferable (except in connection with a merger or reorganization of, or sale of all or substantially all of the assets of, one or more businesses of such party to which the license set forth in this Section 4.15(a) relates), sublicensable, paid-up and royalty-free right and license to use and practice (i) the Sellers Licensed IP Rights solely in connection with the Business, as conducted as of the Closing Date, and any natural or reasonably foreseeable expansions thereof, and (ii) the SCORE Technology solely in connection with the Business and any natural or reasonably foreseeable expansions thereof. Apollo shall, and shall cause its Affiliates and sublicensees to, use commercially reasonable care to maintain and protect the Trade Secrets included in the Sellers Licensed IP Rights.

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(b)          From Apollo to the Sellers. Subject to compliance with the terms and conditions hereof, and effective as of the Closing, Apollo, on behalf of the Subject Companies, hereby grants to the Sellers and their Subsidiaries a non-exclusive, worldwide, perpetual, irrevocable, non-transferable (except in connection with a merger or reorganization of, or sale of all or substantially all of the assets of, one or more businesses of such party to which the license set forth in this Section 4.15(b) relates), sublicensable, paid-up and royalty-free right and license to use and practice the Subject Companies’ Licensed IP Rights solely in connection with the Retained Business, as conducted as of the Closing Date, and any natural or reasonably foreseeable expansions thereof. Each Seller shall, and shall cause its Subsidiaries and sublicensees to, use commercially reasonable care to maintain and protect the Trade Secrets included in the Subject Companies’ Licensed IP Rights.

4.16        Use of Seller Marks.

(a)          Promptly after the date hereof, the Sellers shall, and shall cause each of their Subsidiaries to, use commercially reasonable efforts to expressly identify all Seller Marks, provide a schedule of such identified Seller Marks to Apollo, and supplement such schedule from time to time after the initial delivery thereof if additional Seller Trademarks are subsequently identified.

(b)          Subject to compliance with the terms and conditions hereof, including in Section 4.16(c) and effective as of the Closing, each Seller, on behalf of itself and its Subsidiaries, hereby grants to Apollo and its Affiliates a limited, non-exclusive, non-transferable, non-sublicensable, paid-up and royalty-free right and license for a period of twenty-four (24) months following the Closing Date to use the Seller Marks (not including domain names, subdomains, vanity URLs, or social media user names) in connection with the conduct of the Business, solely in the manner in which the Seller Marks were used in the Business as of the Closing Date. Seller shall, for one (1) year following the Closing Date, either (i) redirect all visitors to any domain names used solely in the Business prior to Closing that incorporate Seller Marks in such domain names (collectively, the “Redirected Domain Names”) to a domain name of Apollo’s or its applicable Affiliate’s choosing, other than a domain name that includes any Seller Marks in such domain name, or (ii) display a Separation Notice on the home page of any domains that were used in both the Business and the Retained Business prior to Closing and identified by domain names incorporating Seller Marks.

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(c)          Subject to Section 4.16(d), notwithstanding the license contained in Section 4.16(b), Apollo shall, and shall cause its controlled Affiliates to, use commercially reasonable efforts to transition the businesses of the Subject Companies from use of the Seller Marks as promptly as practicable following the Closing. Promptly upon the expiration of the twenty-four (24) month period set forth in Section 4.16(b), Apollo shall, and shall cause its controlled Affiliates to, cease any and all use of the Seller Marks and destroy and dispose of all advertising, marketing, sales and promotional materials in their possession bearing any Seller Marks (other than materials retained for internal purposes or archived). Notwithstanding the foregoing, nothing in this Agreement shall prohibit Apollo and its controlled Affiliates from referencing the Seller Marks to make accurate statements (written or oral) about the activities and history of the Subject Companies, including in regulatory filings and circulations to prospective acquirors or financing sources.

(d)          Notwithstanding the foregoing Sections 4.16(b) and (c), from and after the date hereof until such date that is five (5) years after the Closing Date, to the extent Apollo identifies any Seller Trademarks that are necessary for the operation of the Business, as operated as of the Closing, then Seller and Apollo shall negotiate in good faith a perpetual, royalty-free, non-transferrable (except in connection with a merger or reorganization of, or sale of all or substantially all of the assets of, one or more businesses of such party to which such license relates), fully paid-up license to such Seller Marks.

4.17        Transition Services.

(a)          RCAP shall provide, or cause to be provided (including by using its reasonable best efforts to have its third party service providers provide), to Apollo and the Subject Companies, for a period of nine (9) months, with an option for Apollo to extend up to an additional three (3) months (for a total of twelve (12) months) following the Closing (or such other period as may be mutually agreed by RCAP and Apollo), any such services as may be requested by Apollo or any Subject Company that were provided by RCAP or any of its Subsidiaries to any Subject Company at any time during the twelve-month period prior to the Closing and that are reasonably necessary for the continued operation of such Subject Company consistent with its operation during such period (any such service, a “Transition Service”). RCAP agrees that the manner in which, and the degree of care with which, RCAP provides, or causes to be provided, Transition Services hereunder shall be substantially consistent with the manner in which, and the degree of care with which, RCAP provided, or caused to be provided, the Transition Services for the Subject Companies during the twelve-month period prior to the Closing (with appropriate modifications to the manner in which the Transition Services are provided to reflect that the Subject Companies shall no longer be owned by the Sellers).

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(b)          The amount charged by RCAP for any such Transition Service shall equal RCAP’s actual cost of providing such Transition Service, which shall, (i) in the case of any Transition Service provided through a third party provider (but only to the extent such third party provider provided such Transition Service to such Subject Company prior to the Closing or is otherwise approved in writing by Apollo), be the out-of-pocket cost to RCAP of providing such Transition Service, and (b) shall the actual cost to RCAP of providing such service to such Subject Company on a fully allocated basis. RCAP or the Subject Company receiving such Transition Service shall be entitled to deduct and withhold, or cause to be deducted and withheld, from all amounts payable pursuant to this Section 4.17(b) such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any other provision of federal, provincial, state, local or foreign Tax law.

(c)          The Sellers shall be responsible for obtaining and maintaining any governmental or third party licenses or consents required for the provision of any service, and shall bear all costs of obtaining or maintaining such licenses or consents.

(d)          The Sellers shall maintain in confidence and shall not use or permit to be used (other than in the provision of the Transition Services) any information of the Business or Apollo or the Subject Companies received or obtained by the Sellers in the course of providing Transition Services hereunder. The Sellers shall use the standard of care consistent with their current practice to prevent the unauthorized use, dissemination or disclosure of any such information.

4.18        Release. Effective upon the Closing, each of the Sellers (on behalf of itself and on behalf of its Subsidiaries (other than the Subject Companies)) hereby irrevocably waives, releases and discharges Apollo and each of its Affiliates (including, from and after the Closing, the Subject Companies) from any and all liabilities and obligations to it or its Subsidiaries of any kind or nature whatsoever, in each case whether absolute or contingent, liquidated or unliquidated, known or unknown, and whether arising under any agreement or understanding (other than this Agreement and any Ancillary Agreements executed and delivered in connection herewith), any right of contribution or indemnification or otherwise at law or in equity, and each of the Sellers (on its behalf and on behalf of its Subsidiaries (other than the Subject Companies)) agrees that it shall not seek to recover any amounts in connection therewith or thereunder from Apollo and each of its Affiliates (including, from and after the Closing, the Subject Companies); provided, that the waivers contained in this Section 4.18 shall not apply to claims asserted pursuant to this Agreement or any Ancillary Agreement, but such claims shall remain subject to the limitations set forth elsewhere in this Agreement, including Article VII.

4.19        Further Assurances. Each party shall cooperate with the others, and execute and deliver, or use its reasonable best efforts to cause to be executed and delivered, all such other instruments, including instruments of conveyance, assignment and transfer, and take all such other actions as such party may reasonably be requested to take by the other parties hereto from time to time, consistent with the terms of this Agreement, in order to effectuate the provisions and purposes of this Agreement and the transactions contemplated hereby.

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Article V

Conditions to the Closing

5.1          Mutual Conditions. The respective obligations of Apollo, RCAP and RCS Holdings to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing by the parties hereto) as of the Closing of the following condition:

(a)          No Injunction. There shall be no (i) injunction, restraining order or decree of any nature of any Governmental Authority of competent jurisdiction in effect that restrains or prohibits the consummation of the transactions contemplated hereby or (ii) pending action, suit or proceeding brought by any Governmental Authority which seeks to restrain the consummation of the transactions contemplated hereby.

5.2          Additional Conditions to the Obligations of Apollo. The obligations of Apollo to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing by Apollo) as of the Closing of each of the following additional conditions:

(a)          Representations and Warranties of the Sellers. The representations and warranties of the Sellers contained in Sections 2.1, 2.2, 2.5, and 2.23 (such representations and warranties, the “Fundamental Representations”) shall be true and correct in all respects (with only such exceptions as are de minimis) as of the Closing Date as though made at and as of the Closing Date, except to the extent that any representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct in all respects (with only such exceptions as are de minimis) as of such specified date. The representations and warranties of the Sellers contained in Sections 2.7(a), 2.7(b), 2.8(a), 2.8(b), 2.12(b) and the first two sentences of Section 2.14 (with respect to any Material Contract of a type described in clause (ii), (iii), (iv), (v), (vi), (vii), (viii) or (ix) of the definition thereof) (in each case, read without giving effect to any qualifications or exceptions contained therein regarding materiality, “Material to a Reasonable Investor”, “Material Adverse Effect” or similar qualification, except for references to “Material Contracts”) shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date, except to the extent that any representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct in all material respects as of such specified date. Other than the Fundamental Representations and the representations and warranties set forth in the prior sentence, the representations and warranties of the Sellers contained in Article II of this Agreement (read without giving effect to any qualifications or exceptions contained therein regarding materiality, “Material to a Reasonable Investor”, “Material Adverse Effect” or similar qualification, except for references to “Material Contracts”) shall be true and correct as of the Closing Date as though made at and as of the Closing Date, except to the extent that any representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct as of such specified date and except, in each case, for such failures to be true and correct that individually or in the aggregate would be Material to a Reasonable Investor.

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(b)          Performance of Seller Covenants. Each of the Sellers shall have performed and complied with in all material respects all covenants contained in this Agreement to be performed or complied with by it prior to or at the Closing.

(c)          No Material Adverse Effect. Since the date hereof, there shall not have occurred a Material Adverse Effect.

(d)          Officer’s Certificate. Apollo shall have received a certificate, dated as of the Closing Date, executed by a senior officer of RCAP on behalf of each of the Sellers, to the effect that the conditions specified in paragraphs (a), (b) and (c) have been fulfilled.

(e)          Ancillary Agreements. Each of the Sellers shall have delivered to Apollo each of the Ancillary Agreements to which it or any of its Affiliates is a party.

(f)          Certain Events. Neither of the Sellers shall have (i) commenced a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) consented to the entry for an order for relief in an involuntary case under any such law, (iii) consented to the appointment of or taking possession by a receiver, liquidator, assignee, custodian or trustee (or similar official) of it or for any substantial part of its property, (iv) made any general assignment for the benefit of creditors or (v) failed to pay its debts as they become due.

(g)          Material Consents. The Sellers shall have received the Consents set forth in Section 5.2(g) of the Seller Disclosure Letter.

(h)          Material Proceedings. Since the date hereof, there has been no (i) new Proceeding instituted by a Governmental Authority or claim filed in state or federal court by any Person against any Subject Company, in each case alleging actions, occurrences or omissions, or (ii) new development in any Proceeding set forth in Section 2.7(a)(i) or Section 2.7(a)(ii) of the Seller Disclosure Letter, in each case for clauses (i) and (ii), that would, individually or in the aggregate, reasonably be expected to be materially adverse to the Business or the Subject Companies, taken as a whole.

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(i)          FINRA Approval. The FINRA Approval shall have been obtained and shall not have been withdrawn, and FINRA has not imposed any FINRA Burdensome Condition for which indemnification pursuant to Article VII would be an inadequate remedy. Notwithstanding the foregoing, Apollo has the right but not the obligation to waive the condition to Closing relating to the receipt of FINRA Approval if (i) at least 35 days have passed since the FINRA Notice was submitted, (ii) all of the other conditions to closing set forth in Article V (subject to the satisfaction or waiver of those conditions that by their terms are to be satisfied by actions taken at the Closing) have been satisfied or waived, and (iii) FINRA has not denied the FINRA Approval or advised that the parties are prohibited from consummating the closing. In the event that Apollo exercises the right set forth in the prior sentence, Sellers shall have the obligation to proceed to Closing on the time frame established by Apollo in its reasonable discretion.

(j)          External Wholesalers. RCS shall continue to employ at least thirty (30) of the external wholesalers employed by it as of the date of this Agreement.

5.3          Additional Conditions to the Obligations of the Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver in writing by RCAP) as of the Closing of each of the following additional conditions:

(a)          Representations and Warranties. The representations and warranties of Apollo contained in Sections 3.1, 3.2 and 3.7 shall be true and correct in all respects (with only such exceptions as are de minimis) as of the Closing Date as though made at and as of the Closing Date, except to the extent that any representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct in all respects (with only such exceptions as are de minimis) as of such specified date. Other than the representations and warranties referred to in the immediately preceding sentence, the representations and warranties of Apollo contained in Article III of this Agreement (read without giving effect to any qualifications or exceptions contained therein regarding materiality or similar qualification) shall be true and correct as of the Closing Date as though made at and as of the Closing Date, except to the extent that any representation and warranty is made as of a specified date other than the Closing Date, in which case such representation and warranty shall be true and correct as of such specified date and except, in each case, for such failures to be true and correct that, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the ability of Apollo to complete the transactions contemplated by this Agreement or to perform its obligations hereunder

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(b)          Performance of Covenants. Apollo shall have performed and complied with in all material respects all covenants contained in this Agreement to be performed or complied with it prior to or at the Closing.

(c)          Certificate. RCAP shall have received a certificate, dated as of the Closing Date, executed by Apollo, to the effect that the conditions specified in paragraphs (a) and (b) above have been fulfilled.

(d)          Ancillary Agreements. Apollo shall have delivered to RCAP each of the Ancillary Agreements to which it or any of its Affiliates is a party.

(e)          FINRA Approval. The FINRA Approval shall have been obtained and shall not have been withdrawn; provided, however, that this condition shall not apply if Apollo has exercised its right under the second sentence of Section 5.2(i).

Article VI

Termination

6.1           Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:

(a)          by mutual written consent of RCAP and Apollo;

(b)          by RCAP or Apollo upon written notice to the other parties in the event that any Governmental Authority (including any court of competent jurisdiction) shall have issued an order, decree or ruling or taken any other official action enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and non-appealable; provided that the right to terminate this Agreement pursuant to this Section 6.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been a material cause of, or resulted in, the occurrence of such order, decree, ruling or other action.

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(c)          by RCAP, if there shall be a breach by Apollo of any representation or warranty or any covenant or agreement contained in this Agreement which would result in a failure of a condition set forth in Section 5.3(a) or (b) and which breach cannot be cured or has not been cured within 30 calendar days after the giving of written notice to Apollo of such breach; provided that RCAP shall not have the right to terminate this Agreement pursuant to this Section 6.1(c) if it is then in breach of any of its covenants set forth in this Agreement that would result in the closing conditions set forth in Section 5.2 (other than those conditions which by their terms cannot be satisfied until the Closing) not being satisfied.

(d)          by Apollo, if there shall be a breach by any of the Sellers of any representation or warranty or any covenant or agreement contained in this Agreement which would result in a failure of a condition set forth in Section 5.2(a) or (b) and which breach cannot be cured or has not been cured within 30 calendar days after the giving of written notice to such Seller of such breach; provided that Apollo shall not have the right to terminate this Agreement pursuant to this Section 6.1(d) if it is then in breach of any of its covenants set forth in this Agreement that would result in the closing conditions set forth in Section 5.3 (other than those conditions which by their terms cannot be satisfied until the Closing) not being satisfied; or

(e)          by RCAP or Apollo upon written notice given to the other parties in the event that the Closing shall not have taken place on or before January 15, 2016 (the “Outside Date”), unless such party has breached any covenant or agreement hereunder and such breach has resulted in the failure of the Closing to occur on or prior to the Outside Date.

6.2          Effect of Termination. In the event of the termination of this Agreement as provided above, this Agreement (other than this Section 6.2) shall become void and of no further force and effect, and there shall be no duties, liabilities or obligations of any kind or nature whatsoever on the part of any party hereto to the other parties based either upon this Agreement or the transactions contemplated hereby, provided that (a) no such termination (nor any provision of this Agreement) shall relieve any party from liability for any damages for actual and intentional fraud or any willful and material breach of any covenant hereunder prior to such termination and (b) the obligations of the parties referred to in the first sentence of Section 4.2(b), Section 4.4, Section 4.10, this Section 6.2 and Article IX shall continue to apply following any such termination of this Agreement. For purposes of this Agreement, “willful and material breach” means a material breach of any covenant set forth in this Agreement that is a consequence of an act or failure to act by or on behalf of the breaching party with knowledge that the taking of such act or failure to take such act would, or would reasonably be expected or likely to, result in a breach of this Agreement.

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Article VII

Indemnification

7.1           Indemnification by the Sellers.

(a)          From and after the Closing, subject to the other provisions of this Article VII, the Sellers shall jointly and severally indemnify Apollo and its officers, directors, employees and Affiliates (collectively, the “Indemnified Apollo Parties”), and hold each of them harmless from and against, any and all actions, suits, proceedings, demands, assessments, judgments, claims, liabilities, losses (including losses arising from the diminution of value), costs, damages, expenses, interest or penalties, and reasonable attorneys’ fees, expenses and disbursements, whether or not resulting from a Third Party Claim (collectively, “Damages”), suffered, paid or incurred by such Indemnified Apollo Party arising out of, resulting from or caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made as of the Closing (except in the case of representations and warranties which by their terms speak only as of a specific date or dates, in which case as of such date or dates), (ii) any breach by a Seller of any covenant or agreement of such Seller contained in this Agreement, (iii) any matter described in Section 7.1(a)(iii) of the Seller Disclosure Letter, (iv) the Excluded RCS Business or any other businesses operated or conducted by the Sellers and its Subsidiaries (other than the Subject Companies), (v) any matter described in Section 7.1(a)(v) of the Seller Disclosure Letter, (vi) the Pre-Closing Restructuring Actions and (vii) any FINRA Burdensome Condition (provided, however, that the obligation to indemnify for any FINRA Burdensome Condition shall not apply if Apollo has exercised its right under the second sentence of Section 5.2(i)).

(b)          Notwithstanding anything to the contrary contained in this Section 7.1, except with respect to actual and intentional fraud or breaches of Fundamental Representations (and, for the avoidance of doubt, Section 2.11, the indemnification for which shall be governed under Article VIII), as to which the limitations in this Section 7.1(b) shall not apply, the Indemnified Apollo Parties shall be entitled to indemnification for breaches of representations and warranties pursuant to Section 7.1(a)(i):

(i)          only if, and then only to the extent that, the aggregate Damages to all Indemnified Apollo Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.1(a)(i), exceed $250,000 (the “Deductible”), whereupon (subject to the provisions of clause (ii) below) the Sellers shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and

(ii)         only with respect to claims for indemnification in respect of which notice of the inaccuracy or breach giving rise to such claim shall have been given to RCAP on or before the date that is eighteen (18) months after the Closing Date (other than claims for indemnification arising from a breach of any Fundamental Representation, which must be asserted by the Indemnified Apollo Parties not later than sixty days following the expiration of the relevant statute of limitations).

In addition, the Sellers shall not be liable for indemnification pursuant to Section 7.1(a)(i) with respect to any Damages suffered, paid or incurred by an Indemnified Apollo Party of less than $10,000 (a “De Minimis Damage”), and all De Minimis Damages shall be disregarded for purposes of the Deductible (it being understood and agreed that in the event any Damage is greater than the threshold for a De Minimis Loss, no portion of such Damage shall be disregarded pursuant to this sentence).

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(c)          Notwithstanding anything to the contrary contained in this Section 7.1, the Indemnified Apollo Parties shall be entitled to indemnification pursuant to Section 7.1(a)(iii) only if, and then only to the extent that, the aggregate Damages to all Indemnified Apollo Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.1(a)(iii), exceed $100,000, whereupon the Sellers shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of $100,000.

7.2          Indemnification by Apollo.

(a)          From and after the Closing Date, subject to the other provisions of this Article VII, Apollo shall indemnify the Sellers and their respective officers, directors, employees and Affiliates (collectively, the “Indemnified RCS Parties”) and to hold each of them harmless from and against any and all Damages suffered, paid or incurred by such Indemnified RCS Party arising out of, resulting from or caused by: (i) any breach of any of the representations and warranties made by Apollo in Article III as if such representation or warranty was made as of the Closing (except in the case of representations and warranties which by their terms speak only as of a specific date or dates, in which case as of such date or dates); or (ii) any breach by Apollo of any covenant or agreement of Apollo contained in this Agreement.

(b)          Notwithstanding anything to the contrary contained in this Section 7.2, except with respect to actual and intentional fraud or breaches of representations and warranties contained in Sections 3.1, 3.2 and 3.7 as to which the limitations of this Section 7.2(b) shall not apply, the Indemnified RCS Parties shall be entitled to indemnification pursuant to Section 7.2(a)(i):

(i)          only if, and then only to the extent that, the aggregate Damages to all Indemnified RCS Parties (without duplication), with respect to all claims for indemnification pursuant to Section 7.2(a)(i), exceed the amount of the Deductible, whereupon (subject to the provisions of clause (ii) below) Apollo shall be obligated to pay in full all such amounts but only to the extent such aggregate Damages are in excess of the amount of the Deductible; and

(ii)         only with respect to claims for indemnification in respect of which notice of the inaccuracy or breach giving rise to such claim shall have been given to Apollo on or before the date that is eighteen (18) months after the Closing Date.

In addition, Apollo shall not be liable for indemnification pursuant to Section 7.2(a)(i) with respect to any De Minimis Damages suffered, paid or incurred by an Indemnified RCS Party, and all De Minimis Damages shall be disregarded for purposes of the Deductible (it being understood and agreed that in the event any Damage is greater than the threshold for a De Minimis Loss, no portion of such Damage shall be disregarded pursuant to this sentence).

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7.3          Indemnification Procedures.

(a)          If an Indemnified Apollo Party or an Indemnified RCS Party (each, an “Indemnified Party”) believes that a claim, demand or other circumstance exists that has given or may reasonably be expected to give rise to a right of indemnification under this Article VII (whether or not the amount of Damages relating thereto is then quantifiable), such Indemnified Party shall assert its claim for indemnification by giving written notice thereof (a “Claim Notice”) to RCAP (if indemnification is sought from a Seller (an “Indemnifying RCS Party”)) or to Apollo (if indemnification is sought from Apollo (an “Indemnifying Apollo Party”)) (in either such case, the “Indemnifying Party”) (i) if the event or occurrence giving rise to such claim for indemnification is, or relates to, a claim, suit, action or proceeding brought by a Person not a party to this Agreement or affiliated with any such party (a “Third Party Claim”), promptly and in any event no later than thirty (30) days after it has received notice of such claim, suit, action or proceeding by such Indemnified Party, or (ii) if the event or occurrence giving rise to such claim for indemnification is not, or does not relate to, a Third Party Claim, promptly after the discovery by the Indemnified Party of the circumstances giving rise to such claim for indemnity; provided, however, that any failure or delay in providing such notice shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent the Indemnifying Party is actually prejudiced by such failure or delay. Each Claim Notice shall describe the claim in reasonable detail based on information available at the time.

(b)          If any claim or demand by an Indemnified Party under this Article VII relates to a Third Party Claim, the Indemnifying Party may elect to assume, conduct and control the defense of the Indemnified Party against such Third Party Claim (including using counsel of the Indemnifying Party's choosing). The Indemnified Party may participate at its own expense, with counsel of its choosing, in the defense of such Third-Party Claim although such Third-Party Claim shall be controlled by the Indemnifying Party. Until the Indemnifying Party has assumed the defense of the Indemnified Party against such Third Party Claim, the Indemnified Party may defend such Third Party Claim but in no event shall the Indemnified Party negotiate a settlement or a compromise of such Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed), and if such Indemnifying Party provides such prior written consent, any such settlement or compromise by the Indemnified Party and the Indemnified Party’s reasonable costs and expenses arising out of such defense, settlement or compromise of such Third Party Claim shall be Damages subject to indemnification hereunder to the extent provided herein. Except with the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed), the Indemnifying Party shall not settle or otherwise compromise or pay such Third Party Claim; provided that any such settlement or compromise shall be permitted hereunder without the written consent of the Indemnified Party if such settlement or compromise (w) involves only money damages paid by or on behalf of the Indemnifying Party, (x) does not encumber any of the assets of any Indemnified Party or its Affiliates or include any restriction or condition that would apply to or adversely affect any Indemnified Party or any of its Affiliates or the conduct of any Indemnified Party’s or its Affiliates’ business, (y) includes a complete release by such Third Party of such Indemnified Party and (z) does not include any admission of wrongdoing or misconduct by such Indemnified Party.

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(c)          Each Indemnified Party shall make available to the Indemnifying Party all information and documents in its possession or reasonably available to such Indemnified Party relating to such action or claim which is not confidential or proprietary in nature or which is made available under the terms of a confidentiality agreement or is delivered or obtained under appropriate protective orders reasonably satisfactory to such party, together with all pertinent information regarding the amount of the Damages that it asserts it has sustained or incurred. In addition, the parties shall render to each other such assistance as may reasonably be requested in order to help ensure the proper and adequate defense of any such action or claim. The party in charge of the defense shall keep the other parties reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto.

7.4       General.

(a)          The aggregate amount which the Sellers are or may be required to pay pursuant to Section 7.1(a)(i), 7.1(a)(ii) and 7.1(a)(vii) shall not exceed the Purchase Price and the aggregate amount which Apollo is or may be required to pay pursuant to Section 7.2(a)(i) and 7.2(a)(ii) shall not exceed the Purchase Price.

(b)          Notwithstanding anything herein to the contrary, no Indemnifying Party shall be liable for any Damages that are not reasonably foreseeable, that are speculative, that are based on reputational damage to Apollo or any of its Affiliates (including the Subject Companies), or that constitute punitive or other exemplary Damages, except to the extent that such Damages have been awarded to a Third Party against an Indemnified Party.

(c)          The amount which the Indemnifying Party is or may be required to pay to any Indemnified Party pursuant to this Article VII shall be reduced (retroactively, if necessary) by any insurance proceeds, indemnification from other sources or other amounts actually recovered by or on behalf of such Indemnified Party in reduction of the related Damages, net of any deductibles or other similar expenses incurred in connection therewith, it being understood and agreed that an Indemnified Party shall use commercially reasonable efforts to seek recovery under any applicable insurance policies, other contracts or arrangements that provide for indemnification or from other sources that may provide recovery for such Damages. If an Indemnified Party shall have received payment from the Indemnifying Party in respect of Damages and shall subsequently receive insurance or indemnification proceeds or other amounts in respect of such Damages, then such Indemnified Party shall promptly repay to the Indemnifying Party a sum equal to the amount of such net insurance or indemnification proceeds or other net amounts actually received. The Indemnifying Party shall be subrogated to any right of action which the Indemnified Party may have against any other Person with respect to any matter giving rise to a claim for indemnification hereunder. Any Indemnified Party that becomes aware of Damages for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the Damages.

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(d)          The amount of any Damages for which indemnification is provided under this Article VII or Article VIII shall be adjusted to take account of any net Tax benefit (or cost) actually realized by the Indemnified Party or any of its Affiliates in the year such Damages are incurred or paid arising from the incurrence or payment of any such Damages. In computing the amount of any such Tax benefit (or cost), the Indemnified Party (or its applicable Affiliate) shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Damages.

(e)          An Indemnified Party shall be entitled to indemnification pursuant to Sections 7.1(a)(ii) and 7.2(a)(ii) only if a notice asserting the right to indemnification has been given to the Indemnifying Party not later than the earlier of sixty days following the expiration of the relevant statute of limitations, if applicable.

(f)          The indemnification provided in this Article VII shall be the exclusive post-Closing remedy available to any party with respect to any breach of any representation, warranty, covenant or agreement in this Agreement, or otherwise in respect of the transactions contemplated by this Agreement, except (i) in the case of actual and intentional fraud or with respect to matters for which the remedy of specific performance, injunctive relief or other non-monetary equitable remedies are available, or (ii) with respect to Taxes and other Damages in respect of Taxes (the indemnification for which is governed under by Article VIII).

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Article VIII

Tax Matters

8.1          Tax Indemnity. Seller shall bear and pay, reimburse, indemnify and hold harmless the Indemnified Apollo Parties for, from and against any and all Taxes and other Damages in respect of Taxes that (a) are imposed on, allocated or attributable to or incurred or payable by any of the Subject Companies for any Pre-Closing Tax Period, together with any interest, penalty or additions to Tax accruing after the Closing Date on Taxes described in this clause (a), (b) arise under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign law by virtue of any of the Subject Companies having been a member of a consolidated, combined, affiliated, unitary or other similar tax group prior to the Closing, (c) are imposed by reason of any of the Subject Companies having liability for Taxes of another Person arising under principles of transferee or successor liability or by contract (other than as a result of any customary tax sharing or allocation provisions in commercial contracts not primarily related to Taxes) as a result of activities or transactions taking place at or prior to the Closing, (d) arise from or are attributable to any inaccuracy in or breach of any representation or warranty made in Section 2.11, (e) arise from or are attributable to any breach by the Sellers of any covenant made in this Article VIII or Section 4.1(p), (f) arise from the inclusion of any income or gain by any of the Subject Companies in any Post-Closing Tax Period (i) under Section 453 of the Code (or any similar provision of state, local or foreign law) in respect of any transaction occurring prior to the Closing or (ii) under Section 108(i) of the Code (or any similar provision of state, local or foreign law) in respect of any reacquisition occurring at or prior to the Closing, (g) arise from or are attributable to any payment to RCAP or any of its Affiliates pursuant to this Agreement, including any withholding tax imposed on any such payment, or (h) Taxes that are the responsibility of the Sellers under Section 8.6. The amount of any payments required to be made pursuant to this Section 8.1 shall be computed without regard to any net operating loss, net capital loss or other Tax deduction, credit or benefit that is attributable to, arises from or relates to any Post-Closing Tax Period. Notwithstanding any other provision of this Agreement and for the avoidance of doubt, the limitations in Section 7.1(b), 7.1(c) and Section 7.4 shall not apply to this Section 8.1. The indemnity set forth in this Section 8.1 shall survive until sixty days following the expiration of the relevant statute of limitations provided, that this indemnity shall survive the time at which it would otherwise terminate pursuant to this Section 8.1 if notice of the claim giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time.

8.2          Straddle Periods. For purposes of this Article VIII, any liability for Taxes attributable to a taxable period that begins before and ends after the Closing Date (a “Straddle Period”) shall be apportioned between the portion of such period ending on the Closing Date and the portion beginning on the day after the Closing Date (a) in the case of real and personal property Taxes, by apportioning such Taxes on a per diem basis and (b) in the case of all other Taxes, on the basis of a closing of the books as of the close of business on the Closing Date, provided that exemptions, allowances or deductions that are calculated on an annual basis shall be apportioned on a per diem basis. For the avoidance of doubt, for purposes of this Section 8.2, in the case of any income Tax attributable to the ownership of an entity that is taxed as a partnership or of any other entity that is treated as a “flow-through” entity for Tax purposes (excluding a “controlled foreign corporation” within the meaning of Section 957(a) of the Code), the portion of such income Tax that relates to the Pre-Closing Tax Period shall be deemed to be the amount that would be payable if the relevant Tax period of such “flow-through” entity ended on the Closing Date, provided that if the information necessary to determine such portion is unavailable, such portion shall be determined by apportioning such Taxes attributable to a Straddle Period on a per diem basis or by using such method as the parties hereto reasonably agree.

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8.3          Tax Returns.

(a)          From the date of this Agreement through the Closing Date, the Sellers shall prepare and file as required by Applicable Law with the appropriate taxing authority (or cause to be prepared and filed) in a timely manner all Tax Returns of the Subject Companies that are required to be filed on or prior to the Closing Date and shall timely pay any Tax amounts shown to be due on such Tax Returns. All such Tax Returns shall be prepared in a manner consistent with most recent past practice, except as otherwise required by Applicable Law.

(b)          The Sellers shall prepare and file as required by Applicable Law with the appropriate taxing authority (or cause to be prepared and deliver to such Subject Company for filing) in a timely manner all other Pre-Closing Tax Period Tax Returns (other than Straddle Period Tax Returns) of the Subject Companies. All such Tax Returns shall be prepared in a manner consistent with most recent past practice, except as otherwise required by Applicable Law. Apollo shall prepare and file as required by Applicable Law with the appropriate taxing authority (or cause to be prepared and filed) in a timely manner all Straddle Period Tax Returns of the Subject Companies. All such Tax Returns shall be prepared in a manner consistent with most recent past practice, except as otherwise required by Applicable Law. The Sellers shall pay to Apollo, or cause to be paid to Apollo, all Tax amounts shown as due on the Tax Returns described in this Section 8.3(b) for Tax periods (or portions thereof) ending on or before the Closing Date.

(c)          Each party responsible for the preparation of a Tax Return under this Section 8.3 shall submit such Tax Return to the other party (together with schedules, statements and, to the extent requested by such other party, supporting documentation) at least thirty (30) Business Days prior to the due date (including extensions) of such Tax Return. If such other party objects to any item on any such Tax Return (including a pro forma Tax Return) described in Section 8.3(b) it shall, within fifteen (15) Business Days after delivery of such Tax Return, notify the other party responsible for preparation of such Tax Return in writing that it so objects, specifying with particularity any such item and stating the specific factual or legal basis for any such objection. If a notice of objection is duly delivered, Apollo and RCAP shall negotiate in good faith and use their reasonable best efforts to resolve such items. In the event of any disagreement that cannot be resolved between Apollo and RCAP, such disagreement shall be resolved by an accounting firm of international reputation mutually agreeable to RCAP and Apollo (the “Tax Accountant”), and any such determination by the Tax Accountant shall be final. The fees and expenses of the Tax Accountant shall be borne equally by Apollo and RCAP. If the Tax Accountant does not resolve any differences between RCAP and Apollo with respect to such Tax Return at least five days prior to the due date therefor, such Tax Return shall be filed as prepared by Apollo and amended to reflect the Tax Accountant’s resolution. The preparation and filing of any Tax Return that does not relate to a Pre-Closing Tax Period or a Straddle Period shall be exclusively within the control of Apollo.

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(d)          To the extent any entity (other than a Subject Company) issues an IRS Form K-1 (or other similar Tax Return) to or with respect to any Subject Company’s ownership of such entity, the Sellers shall include all items of income, gain, loss or deduction shown on such Tax Return for Tax periods (or portions thereof) ending on or prior to the Closing Date (taking into account such entity’s method of allocating such items in the event of a transfer of an interest in such entity pursuant to Section 706 of the Code) on the applicable Seller’s Tax Return.

(e)          After the Closing, RCAP shall not, and shall not permit any of its Affiliates to, without the written consent of Apollo, amend any Tax Returns or change any Tax elections or accounting methods with respect to any of the Subject Companies relating to any Pre-Closing Tax Period to the extent such amendment or change could reasonably be expected to have a material cost to Apollo or any of the Subject Companies.

8.4          Tax Contests. Apollo shall promptly notify RCAP in writing upon receipt by any of the Subject Companies, or by Apollo or any of its Affiliates, of notice of any Tax audits, examinations or assessments that could give rise to a liability for which the Sellers are responsible under Section 8.1 of this Agreement, provided that Apollo’s failure so to notify RCAP shall not limit Apollo’s rights under this Article VIII except to the extent the Sellers are materially prejudiced by such failure. RCAP shall promptly notify Apollo in writing upon receipt by RCAP or any of its Affiliates of notice of any Tax audits, examinations or assessments that could give rise to Taxes of or with respect to any of the Subject Companies. Except as otherwise provided herein, (a) RCAP shall control any such audit, examination or proceeding that relates exclusively to a Pre-Closing Tax Period and (b) Apollo shall control (i) any Tax audit, examination or proceeding that is not described in clause (a) and (ii) any Tax audit, examination or proceeding described in clause (a) if RCAP fails to assume control of such audit, examination or proceeding within a reasonable period after receiving notice thereof. In either case, the party controlling such Tax audit, examination or proceeding shall (w) notify the other party of significant developments with respect to such Tax audit, examination or proceeding and keep the other party reasonably informed and consult with the other party as to the resolution of any issue that would materially affect such other party, (x) give to the other party a copy of any Tax adjustment proposed in writing with respect to such Tax audit, examination or proceeding and copies of any other written correspondence with the relevant taxing authority relating to such Tax audit, examination or proceeding, (y) not settle or compromise any issue without the consent of such other party, which consent shall not be unreasonably withheld, conditioned or delayed and (z) otherwise permit the other party to participate in all aspects of such Tax audit, examination or proceeding, at such other party’s own expense.

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8.5          Books and Records; Cooperation. Each of the Sellers and Apollo shall (and shall cause their respective Affiliates to) (a) provide the other party and its Affiliates with such assistance as may be reasonably requested in connection with the preparation of any Tax Return or claim for refund, the determination of a tax liability for Taxes or a right to refund of Taxes or the conduct of any audit or other examination by any taxing authority or any judicial or administrative proceeding relating to Taxes and (b) retain (and provide the other party and its Affiliates with reasonable access to) all records or information which may be relevant to such Tax Return, claim for refund, Tax determination, audit, examination or proceeding. Such cooperation and information shall include providing copies of all relevant Tax Returns, together with accompanying schedules and related work papers, documents relating to rulings or other determinations made by taxing authorities and records concerning the ownership and tax basis of property, which either party may possess. Each party shall make its employees available on a mutually convenient basis to provide explanation of any documents or information provided hereunder. Except as otherwise provided in this Agreement, the party requesting assistance hereunder shall reimburse the other for any reasonable out of pocket costs incurred in providing any Tax Return, document or other written information, and shall compensate the other for any reasonable costs (excluding wages and salaries and related costs) of making employees available, upon receipt of reasonable documentation of such costs. Any information obtained under this Section 8.5 shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or claims for refund or in conducting any audit, examination or other proceeding. Apollo and the Sellers agree that the sharing of information and cooperation contemplated by this Section 8.5 shall be done in a manner so as not to interfere unreasonably with the conduct of the business of the parties.

8.6          Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any real property transfer tax and any similar Tax, and including any penalties and interest) incurred in connection with the transactions contemplated by this Agreement shall be borne 50% by the Sellers and 50% by Apollo, and the Sellers shall file all necessary Tax returns and other documentation with respect to all such Taxes and fees, and, if required by Applicable Law, Apollo shall, and shall cause its Affiliates to, join in the execution of any such Tax returns and other documentation.

8.7          Tax Agreements; Powers of Attorney. Prior to the Closing, the participation of the Subject Company in all Tax Agreements to which any of the Subject Companies is a party (other than agreements to which the Subject Companies are the only parties) shall be terminated such that none of the Subject Companies shall have any obligations thereunder following the Closing. RCAP shall cause any and all existing powers of attorney with respect to Taxes or Tax Returns to which any of the Subject Companies is a party to be terminated as of the Closing.

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8.8          Overlap. To the extent of any inconsistency between this Article VIII and Article VII, this Article VIII shall control as to Tax matters.

8.9          Section 754 Elections. The Sellers shall cooperate with Apollo in the making of a valid election under Section 754 of the Code and any analogous or similar provision of state or local law (such election to be effective as of no later than the Closing Date) with respect to any Subject Company that is classified as a partnership for U.S. federal income tax purposes. In addition, the Sellers shall use their commercially reasonable efforts to cause any entity owned by a Subject Company that is classified as a partnership for U.S. federal income tax purpose to make a valid election under Section 754 of the Code and any analogous or similar provision of state or local law (such election to be effective as of no later than the Closing Date).

8.10        FIRPTA Certificate. Each of the Sellers shall have delivered to Apollo a statement, meeting the requirements of Section 1.1445-2(b) of the Treasury Regulations, to the effect that such Seller is not a “foreign person” within the meaning of Section 1445 of the Code and the Treasury Regulations thereunder.

8.11        Allocation. Within 90 days after the Closing Date, Apollo shall provide to RCAP a statement (the “Allocation Statement”) allocating the Consideration and any other items that are treated as additional Consideration for tax purposes among the Subject Companies and among the different assets of the Subject Companies. Apollo shall provide RCAP a reasonable opportunity to review and comment on the Allocation Statement and cooperate in good faith with RCAP to resolve any disagreement relating to the calculations or allocations set forth in the Allocation Statement. If Apollo and RCAP do not reach an agreement with respect to the Allocation Statement, any such disputed items shall be resolved by the Tax Accountant using the procedures set out in Section 8.3. Apollo and RCAP shall file all Tax Returns in a manner that is consistent with the final Allocation Statement and refrain from taking any action inconsistent therewith.

8.12        Tax Treatment of Certain Payments. The parties shall treat any indemnity payment made under this Agreement as an adjustment to the Purchase Price for all U.S. federal, state, local and foreign Tax purposes to the extent permitted by law, and the parties shall, and shall cause their respective Affiliates to, file their Tax Returns accordingly.

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Article IX

General Provisions

9.1          Survival. Except for the Fundamental Representations and the representations contained in Section 2.11, in each case, which shall survive until the earlier of (i) sixty days following the expiration of the relevant statute of limitations and (ii) the fifth anniversary of the Closing Date, each of the representations and warranties of the parties hereunder shall survive the Closing until the date which is eighteen (18) months after the Closing Date, at which time they shall terminate and be of no further force or effect; provided that any representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to this Section 9.1 if notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time.

9.2          Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be deemed given if delivered personally, mailed by registered or certified mail with postage prepaid and return receipt requested or sent by commercial overnight courier, courier fees prepaid (if available; otherwise, by the next best class of service available), to the parties at the following addresses:

(a)          if to Apollo, to it at:

Apollo Management Holdings, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn:      John J. Suydam

Email:    jsuydam@ApolloLP.com

with a copy (which shall not constitute notice) to:

Debevoise & Plimpton LLP

919 Third Avenue

New York, NY 10022

Attn:      Jeffery J. Rosen

Gregory V. Gooding

Email:    jrosen@debevoise.com

ggooding@debevoise.com

(b)          if to the Sellers, to:

RCS Capital Corporation

405 Park Ave

New York, NY 10022

Attention: James A. Tanaka (JTanaka@rcscapital.com)

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with a copy (which shall not constitute notice) to:

Proskauer Rose LLP

11 Times Square

New York, NY 10036

Attn: Steven L. Lichtenfeld (SLichtenfeld@proskauer.com)

or to such other Person or address as any party shall specify by notice in writing to the other parties in accordance with this Section 9.2. All such notices or other communications shall be deemed to have been received on the date of the personal delivery, on the third Business Day after the mailing or dispatch thereof, or in the case of electronic mail or facsimile transmission, on the date received, subject to confirmation of receipt; provided that notice of change of address shall be effective only upon receipt.

9.3          Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “party” or “parties” shall refer to parties to this Agreement. References to Articles and Sections are to Articles and Sections of this Agreement unless otherwise specified. All Disclosure Letters referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized term used in any Disclosure Letter but not otherwise defined therein shall have the meaning given to such term in this Agreement. The words “as of the date hereof” as they appear in Article II and Article III shall, notwithstanding the date of this Agreement, refer to August 6, 2015. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including any such date. Any reference to “days” means calendar days unless Business Days are expressly specified. If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter. All references to “$” or “dollars” set forth in this Agreement are to U.S. dollars.

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9.4          Amendment and Modification; Waiver.

(a)          This Agreement may not be amended except by an instrument or instruments in writing signed and delivered on behalf of each of Apollo and RCAP.

(b)          At any time prior to the Closing, any party that is entitled to the benefits hereof may (i) extend the time for the performance of any of the obligations or other acts of the other parties, (ii) waive any inaccuracy in the representations and warranties of any other party contained herein or in any Disclosure Letter or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements of any other party or conditions contained herein. Any agreement on the part of a party to any such extension or waiver shall be valid if set forth in an instrument in writing signed and delivered on behalf of such party. Waivers shall operate to waive only the specific matter described in the writing and shall not impair the rights of the party granting the waiver in other respects or at other times. A party’s waiver of a breach of a provision of this Agreement, or failure (on one or more occasions) to enforce a provision of, or to exercise a right under, this Agreement, shall not constitute a waiver of a similar breach, or of such provision or right other than as explicitly waived.

9.5          Entire Agreement. This Agreement (including the Disclosure Letters and the Ancillary Agreements), the Termination Agreement and the Confidentiality Agreement constitute the entire agreement and supersede all other prior agreements and understandings, both written and oral, of the parties with respect to the subject matter hereof.

9.6          Disclosure Letters. For purposes of the representations and warranties of the Sellers and Apollo in this Agreement, items disclosed in one section of a Disclosure Letter shall be considered to be made for purposes of all other sections of such Disclosure Letter to the extent that the relevance of any such disclosure to any other such section of such Disclosure Letter is reasonably apparent from the text of such disclosure. For purposes of the representations and warranties of the Sellers in this Agreement, items disclosed with respect to the Subject Companies in the forms, statements and reports of RCAP publicly available, filed with, or furnished (on a publicly available basis) to the SEC on or after January 1, 2014 and prior to the date of this Agreement shall be considered to be disclosed for purposes of the Seller Disclosure Letter (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer or other statements that are cautionary, predictive or forward-looking in nature, which in no event shall be deemed to be an exception to, or disclosure for purposes of, any representation or warranty set forth in Article II). The disclosure of any item or matter in any Disclosure Letter shall not be construed as an admission, representation or indication that such item or other matter is “material” or would have a Material Adverse Effect or that such item or other matter is required to be referred to or disclosed in such Disclosure Letter. The disclosure of any item or matter relating to any possible breach or violation of any law or contract shall not be construed as an admission or indication that any such breach or violation exists or has actually occurred.

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9.7          Third Party Beneficiaries. Except with respect to Indemnified Parties in their capacity as such pursuant to Articles VII and VIII, nothing in this Agreement, express or implied, is intended to confer upon any Person other than the parties or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement.

9.8          Specific Performance. The parties agree that if any of the provisions of this Agreement were not performed by the parties in accordance with their specific terms or were otherwise breached thereby, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that each party hereto shall be entitled to specific performance to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which it may be entitled at law or in equity.

9.9          Assignment; Binding Effect. This Agreement may not be assigned by any party without the prior written consent of the other parties, provided that Apollo may assign this Agreement, including Apollo’s right to acquire the Acquired Interests and obligation to pay the Purchase Price, to any Affiliate of Apollo without consent of the Sellers, but any such assignment shall not relieve Apollo of its obligations hereunder to the extent that such assignee fails to perform such obligations; provided, further, that notwithstanding any such assignment, Apollo shall continue to have the right to enforce this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

9.10        Governing Law. This Agreement shall be governed in all respects (including as to validity, interpretation and effect) by the internal laws of the State of New York, without giving effect to any conflict of laws rules or principles that would require or permit the application of another jurisdiction’s laws.

9.11        Jurisdiction; Waiver of Jury Trial.

(a)          Each party hereby irrevocably agrees that any action or proceeding arising out of any dispute in connection with this Agreement, any rights or obligations hereunder or the performance of such rights or obligations shall be brought exclusively in the courts of the State of New York located in the Borough of Manhattan or the federal courts of the United States of America located in the Southern District of New York (and appellate courts thereof) and hereby expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum. Each party hereby irrevocably consents to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail or by overnight courier service, postage prepaid, to its address set forth in Section 9.2.

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(b)          Each party hereby waives all rights to a jury trial with respect to any action or claim arising out of any dispute in connection with this Agreement, any rights or obligations hereunder or the performance of such rights and obligations. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such party would not, in the event of litigation, seek to enforce the foregoing waivers and (ii) acknowledges that the other parties have been induced to enter into this Agreement and the transactions contemplated hereby by, among other things, the waivers and certifications contained herein.

9.12        Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

9.13        Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

Article X

Definitions

The following terms when used in this Agreement shall have the following meanings:

“Accounting Firm” means KPMG.

“Acquired Benefit Plans” means Employee Benefit Plans maintained, sponsored or contributed to by the Subject Companies or with respect to which any of the Subject Companies could incur or has incurred liability under Applicable Law, including the Code or ERISA.

“Accounting Principles” means, in the following order of priority: (i) the policies, practices and procedures set forth in Schedule B, (ii) the policies, practices and procedures utilized in arriving at sample calculation of Regulatory Capital and Net Working Capital set forth in Schedule A, and (iii) to the extent not covered by clause (i) or (ii) hereof, GAAP, consistently applied.

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“Acquired Companies” has the meaning set forth in the Recitals hereto.

“Acquired Interests” has the meaning set forth in the Recitals hereto.

“Acquisition Proposal” has the meaning set forth in Section 4.6.

“Affiliate” of a Person means a Person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, the first Person. “Control” (and “controlled by” and “under common control with”) means possessing, directly or indirectly, the power to direct or cause the direction of a Person’s management or policies, through owning voting securities, by contract or credit arrangement, as trustee or executor, or otherwise.

“Aggregate Cash Bonuses” has the meaning set forth in Section 4.12(f)

“Aggregate Indebtedness” has the meaning as interpreted by the SEC in SEC Rule 15c3-1(c)(1) under the Exchange Act.

“Agreement” has the meaning set forth in the introductory paragraph hereof.

“Allocation Statement” has the meaning set forth in Section 8.11.

“Ancillary Agreements” means (i) the Operating Agreement, (ii) the StratCap Waiver and, if the StratCap Waiver is not obtained prior to the Closing Date, the Fund Marketing and Services Agreements, (iii) the other documents to be delivered pursuant to Section 1.3 and (iv) all other agreements or instruments to be executed and delivered in connection with the transactions contemplated hereby.

“Apollo” has the meaning set forth in the introductory paragraph hereof.

“Applicable Law” means any domestic or foreign federal, state or local statute, law (whether statutory or common law), ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, policy, guidelines or other requirement applicable to the Business, RCAP, RCAP’s Subsidiaries, including the Subject Companies, Apollo, or any of their respective Affiliates, holders of Equity Securities, properties, assets, officers, directors, employees or agents, as the case may be.

“ARC Transaction Agreement” has the meaning set forth in the Recitals.

“Base Purchase Price” has the meaning set forth in Section 1.1(b)

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“Books and Records” means all books, records, files, data, reports, plans, catalogs, computer data, certificates and other documents of the Business and the Subject Companies (including records with respect to historic product performance), all sales and promotional literature, or copies thereof, used or held for use in connection with the conduct of the business and operations of the Business and the Subject Companies.

“Broker-Dealer Subsidiaries” has the meaning set forth in Section 2.18.

“Burdensome Condition” has the meaning set forth in Section 4.3(c).

“Business” means the business of the Subject Companies, excluding the Excluded RCS Business and including the Marketing/Event Business.

“Business Day” means any day which is not a Saturday, Sunday or a day on which banks in New York, New York are authorized or obligated by law or executive order to be closed.

“Cetera” means Cetera Financial Holdings, Inc.

“CFTC” means the Commodity Futures Trading Commission.

“Claim Notice” has the meaning set forth in Section 7.3(a).

“Closing” has the meaning set forth in Section 1.2.

“Closing Condition Satisfaction Date” means the date on which the conditions set forth in Article V have been satisfied or waived (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, but subject to the satisfaction or waiver of those conditions at such time).

“Closing Date” has the meaning set forth in Section 1.2.

“Closing Net Working Capital” means the Net Working Capital of the Subject Companies as of 12:01 am on the Closing Date.

“Closing Regulatory Capital” means the “Net Capital” (determined in accordance with the definitions and principles of the SEC Uniform Net Capital Rule 15c3-1) of the Subject Companies as of 12:01 am on the Closing Date.

“Closing Statement” has the meaning set forth in Section 1.6.

“Code” means the Internal Revenue Code of 1986, as amended.

“Confidentiality Agreement” means the letter agreement, dated February 9, 2015, between Apollo and RCAP.

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“Consent” means any consent, approval, authorization, waiver, permit, license, grant, agreement, exemption or order of, or registration, declaration or filing with, any Person, including any Governmental Authority, that is required in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

“Contract” has the meaning set forth in Section 2.3.

“Damages” has the meaning set forth in Section 7.1(a).

“Deductible” has the meaning set forth in Section 7.1(b)(i).

“De Minimis Damage” has the meaning set forth in the last paragraph of Section 7.1(b).

“Disclosure Letters” means the Seller Disclosure Letter.

“Employee” means each current or former employee of (x) the Subject Companies, (y) the Sellers and their Affiliates whose duties and responsibilities are principally related to the Business and listed on Section 10.1 of the Seller Disclosure Letter and (z) of RCS Advisory Services engaged in the Marketing/Event Business that Buyer shall request be transferred to one or more of the Subject Companies no later than ten (10) Business Days prior to the Closing Date, which employees shall be transferred effective as of immediately prior to the Closing Date.

“Employee Benefit Plan” means each employee benefit plan, scheme, program, policy, arrangement or contract, whether written or unwritten, including, but not limited to, any “employee benefit plan”, as defined in Section 3(3) of ERISA, whether or not subject to ERISA, and any bonus, deferred compensation, equity purchase, equity grant or other equity-based arrangement (including, to the extent applicable, under Organizational Documents of Seller or any of its Affiliates, including the Subject Companies, and any employment, termination, retention, bonus, change in control or severance plan, program, policy, arrangement or contract for the benefit of any current or former officer, employee, partner, director or other service provider of the Subject Companies or the Business or in which any of them participate as of the date hereof.

“Environmental Law” means any law, code, license, permit, authorization, approval, consent, common law, legal doctrine, requirement or agreement with any Governmental Authority relating to (i) the protection, preservation or restoration of the environment (including air, water, vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or to human health or safety, or (ii) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of hazardous substances.

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“Equity Securities” means, with respect to any Person, any and all limited liability company interests, partnership interests, capital stock, options or other equity securities in such Person, and all securities exchangeable for or convertible or exercisable into, any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” of any entity means any other entity which, together with such entity, would be treated as a single employer under Section 414(b), (c), (m) or (o) of the Code and the regulations promulgated thereunder.

“Estimated Closing Net Working Capital” has the meaning set forth in Section 1.1(c)

“Estimated Closing Regulatory Capital” has the meaning set forth in Section 1.1(c)

“Estimated Closing Statement” has the meaning set forth in Section 1.1(c)

“Estimated Purchase Price” has the meaning set forth in Section 1.1(b).

“Excess Capital” has the meaning set forth in Section 1.1(d).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder.

“Excluded RCS Business” means the provision of investment banking services by RCS as of the date hereof and immediately prior to the Closing.

“Financial Statements” means (i) the audited balance sheet of RCS as of December 31, 2014, and the related audited statements of income, cash flows and changes in members’ equity and footnotes for the twelve months ended December 31, 2014; (ii) the audited balance sheet of SC Distributors as of December 31, 2014, and the related audited statements of income, cash flows and changes in members’ equity and footnotes for the twelve months ended December 31, 2014; and (iii) the Required Financial Statements to be delivered by the Sellers pursuant to Section 4.7(b).

“FINRA” has the meaning set forth in Section 2.18(a).

“FINRA Approval” means that, as of the Closing Date, FINRA shall have approved the sale of the Subject Companies pursuant to NASD Rule 1017.

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“FINRA Burdensome Condition” means any requirements of or remedies imposed by FINRA in connection with the FINRA Approval that (i) would be materially adverse to Apollo and/or its Affiliates, including, after the Closing, the Acquired Companies and/or their respective Subsidiaries, (ii) involves divestiture of an existing business of Apollo or any of its Affiliates, including, after the Closing, the Acquired Companies and/or their respective Subsidiaries, or (iii) involves unreasonable expense.

“Fundamental Representations” has the meaning set forth in Section 5.2(a).

“Fund Marketing and Services Agreements” means fund and services marketing agreements, by and among SC Distributors, RCS, StratCap and RCAP in such form as is reasonably satisfactory to Apollo, setting forth the matters described in Section 1.5(d)(iv) of this Agreement.

“GAAP” means U.S. generally accepted accounting principles.

“Governmental Approvals” has the meaning set forth in Section 2.4(a).

“Governmental Authority” means any United States or foreign government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the SEC, CFTC or any other authority, agency, department, board, commission or instrumentality of the United States, any State of the United States or any political subdivision thereof or any foreign jurisdiction, and any court, tribunal or arbitrator(s) of competent jurisdiction, and any Self-Regulatory Organization.

“Governmental Report” means all regulatory reports, schedules, forms, registrations, financial statements, sales literature, statements, notices, filings and other documents, together with any amendments, that are required to be filed by any Subject Company with any Governmental Authority.

“Indebtedness” means, without duplication, all obligations of the Subject Companies, determined on a consolidated basis in accordance with GAAP, for (a) borrowed money, including all indebtedness evidenced by any note, bond, debenture or other debt ‎security or any credit agreement or indenture, (b) indebtedness of Persons other than the Subject Companies of the type referred to ‎in this definition which is directly or indirectly guaranteed by the Subject Companies, (c) accrued interest owed with respect to any indebtedness‎ referred to in this definition and (d) any costs to eliminate hedging or swap arrangements outstanding as of the Closing. For the avoidance of doubt, Indebtedness excludes all prepayment penalties, “put” or “change of control” payment obligations or premia or any other premia, consent fees, “break fees,” “make whole payments,” premia or any other ‎similar payments or contractual charges, including, in each case, any such amounts payable with respect to Indebtedness outstanding immediately prior to the Closing but payable as a result of the consummation of the transactions contemplated by this Agreement (which amounts shall be borne by the Sellers).

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“Indemnified Apollo Parties” has the meaning set forth in Section 7.1(a).

“Indemnified Party” has the meaning set forth in Section 7.3(a).

“Indemnified RCS Party” has the meaning set forth in Section 7.2(a).

“Indemnifying Apollo Party” has the meaning set forth in Section 7.3(a).

“Indemnifying Party” has the meaning set forth in Section 7.3(a).

“Indemnifying RCS Party” has the meaning set forth in Section 7.3(a).

“Independent Third Party” means, with respect to any of the Sellers or Apollo, any Person who is not an Affiliate of the Sellers or Apollo, as applicable.

“Infringing” has the meaning set forth in Section 2.15(b).

“Intellectual Property” means, in any and all jurisdictions throughout the world, any (i) trademarks, service marks, trade names, trade dress, Internet domain names, social media usernames (e.g., Twitter handles), personalized subdomains or vanity URLs and other indicia or origin, and the goodwill associated with any and all of the foregoing and symbolized thereby (“Trademarks”), (ii) copyrights and rights in copyrightable subject matter in published and unpublished works of authorship, (iii) rights in Software, (iv) all registrations and applications to register or renew the registration of any of the foregoing, (v) patents and patent applications, including all reissues, divisions, renewals, reexaminations, extensions, provisionals, continuations and continuations-in-part thereof, (vi) rights in Trade Secrets and (vii) all other intellectual property rights.

“Internal RCAP Commingled Contract” means any Contract pursuant to which a Person other than the Sellers or any of their Subsidiaries (other than the Subject Companies) provides assets, services, rights or benefits to any of the Subject Companies in respect of (i) the Business and (ii) one or more other businesses of the Sellers or any of their Subsidiaries (other than the Subject Companies), but expressly excluding any (i) Contracts to which one or more Subject Companies, but neither of the Sellers nor any of their Affiliates, is a party or (ii) Contracts to be assigned to a Subject Company pursuant to the Pre-Closing Restructuring Transactions.

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“Information Technology” means hardware, Software, data, databases, data communication lines, network and telecommunications equipment, Internet-related information technology infrastructure, wide area network and other information technology equipment.

“IRS” means the United States Internal Revenue Service.

“IT Systems” means the Information Technology owned, leased or licensed by or to the Sellers or their Affiliates (including the Subject Companies) and used in the Business.

“Knowledge of Apollo” or “Apollo’s Knowledge” means the actual knowledge of Anthony Civale and John Suydam.

“Knowledge of the Sellers” or the “Sellers’ Knowledge” means the actual knowledge of any of the individuals identified in Section 10.2 of the Seller Disclosure Letter.

“Leases” has the meaning set forth in Section 2.12(a).

“Lien” means any mortgage, pledge, hypothecation, right of others, claim, security interest, encumbrance, lease, sublease, license, occupancy agreement, adverse claim or interest, easement, covenant, encroachment, burden, title defect, title retention agreement, voting trust agreement, interest, equity, option, lien, right of first refusal, charge or other restrictions or limitations of any nature whatsoever (whether absolute or contingent), including but not limited to such as may arise under any Contracts.

“Malware” means any virus, Trojan horse, time bomb, key-lock, spyware, worm, malicious code or other software program designed to or able to, without the knowledge and authorization of the Sellers or the Subject Companies, disrupt, disable, harm, interfere with the operation of or install itself within or on any Software, computer data, network memory or hardware.

“Marketing/Event Business” means the marketing and events services conducted pursuant to the Services Agreement, dated as of June 10, 2013, by and between AR Capital, LLC and RCS Advisory Services, LLC (as amended).

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“Material Adverse Effect” means any change, effect, event or occurrence that (a) is or would reasonably be expected to be, individually or in the aggregate, materially adverse to the assets, liabilities, results of operations or financial condition of the Business or the Subject Companies, in each case, taken as a whole, other than any such effect, change, event or occurrence to the extent resulting from (i) any change in the capital markets or securities markets after the date hereof, (ii) any change in general economic conditions or interest rates arising after the date hereof, (iii) any outbreak or substantial worsening of major hostilities in which the United States is involved or any act of terrorism within or involving the United States or its property or citizens arising after the date hereof, (iv) the failure of any Subject Company to achieve any financial projections or forecasts in and of itself (but not including the underlying reasons therefor unless otherwise excepted pursuant to the other subsections of this definition), (v) the entering into of this Agreement or public announcement or consummation of the transactions contemplated hereby, (vi) any change after the date of this Agreement in Applicable Law or accounting principles or interpretations thereof, (vii) any natural disaster, earthquake, flood, hurricane or any acts of God, (viii) any action required by this Agreement or the omission to take an action prohibited by this Agreement or (ix) any loss of registered representatives or employees (other than external wholesalers), except, in each case of clauses (i), (ii), (iii) or (vi) to the extent that such change, effect, event or occurrence has a materially disproportionate adverse effect on the Business or the Subject Companies, in each case, taken as a whole, relative to other participants in the industry generally; or (b) would reasonably be expected to prevent or materially delay the ability of the Sellers to complete the transaction contemplated by this Agreement or perform their obligations hereunder.

“Material Contract” means any Contract to which any Subject Company is a party, or under which it or the Business is otherwise subject, including any Contract to be assigned to a Subject Company pursuant to the Pre-Closing Restructuring Actions, but excluding any Contract that exclusively relates to the Excluded RCS Business and excluding (except as expressly provided below) any Employee Benefit Plan, that:

(i)          by its terms does not terminate or is otherwise not cancelable within one year without penalty, cost or liability in excess of $100,000 and requires aggregate payments by the Subject Companies in excess of $1,000,000 per year;

(ii)         is a joint venture, partnership, limited liability company or other similar agreement material to any of the Subject Companies;

(iii)        grants any right of first refusal or right of first offer or similar right on any assets that are material to the Subject Companies, taken as a whole;

(iv)        provides for any payments that are conditioned, in whole or in part, on a change of control of a Subject Company or transactions of the type contemplated hereby;

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(v)         is an employment (other than a Subject Company’s standard offer letter, which does not provide any severance pay benefits), consulting, severance, bonus (including fee sharing), compensation or collective bargaining Contract relating to or for the benefit of current (or, to the extent that any of RCAP or any of its Subsidiaries has continuing liabilities with respect thereto following the Closing, former) employees, directors or other service providers (but in each case, excluding any Employee Benefit Plan);

(vi)        contains (A) a “clawback” or similar undertaking requiring the reimbursement or refund of any material fees (whether performance based or otherwise) paid to a Subject Company or (B) a “most favored nation” clause or other term providing preferential pricing or treatment to a third party in any material Contract;

(vii)       contains provisions requiring future contingent or definitive “earnout” or similar payments to be made by a Subject Company in connection with acquisitions of assets or equity interests of a business or the hiring of any employees;

(viii)      is an agreement for the provision of investment advisory or sub-advisory services;

(ix)         any non-competition, non-solicitation or exclusive dealing agreement, or any other agreements that purports to limit or restrict in any material respect (A) the ability of any Subject Company to solicit customers or employees or investments or (B) the manner in which, or the localities in which, all or any portion of the business or operations of any of the Subject Companies or, following consummation of the transactions contemplated by this Agreement, the business or operations of Apollo or any of its Affiliates, is or would be conducted;

(x)          pertains to the solicitation or referral of customers and clients (including other broker-dealers) to the Subject Companies including, without limitation, consulting or brokerage arrangements;

(xi)         any agreement relating to any interest rate, derivatives or hedging transaction;

(xii)        restricts or grants rights to use or practice Intellectual Property that is material to the Business, including licenses to use or practice Intellectual Property granted by (A) Seller or their Affiliates (including any of the Subject Companies) to a third Person or (B) a third Person to the Sellers or any of their Affiliates (including any of the Subject Companies);

(xiii)       is a distribution agreement with a financial intermediary pursuant to which (A) such financial intermediary makes available to its clients investment products for which any Subject Company serves as an investment adviser, manager, sponsor or distributor or (B) any Subject Company or Affiliate thereof makes available to its clients investment products for which any Subject Company serves as an investment adviser, manager, sponsor or distributor;

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(xiv)      relates to Indebtedness of any Subject Company or the granting of any liens (other than Permitted Liens) or a security interest in the property of any Subject Company;

(xv)       is a lease of real property;

(xvi)      is an agreement pursuant to which any third Person creates, develops or customizes for or on behalf of the Sellers or any of their Affiliates (including the Subject Companies) any Intellectual Property that is material to the Business;

(xvii)     is an agreement with DST Services, Inc. or its Affiliates;

(xviii)    is a selling agreement or similar such agreement; and

(xix)       is an agreement pursuant to which any third Person provides support or maintenance for IT Systems or Software material to the Business (other than off-the-shelf Software) for aggregate annual or one-time fees in excess of $250,000.

“Material to a Reasonable Investor” means, with respect to any fact, circumstance, contingency, change, effect, event or occurrence, that a reasonable and prudent investor would deem such fact, circumstance, contingency, change, effect, event or occurrence to be material in making a decision to purchase the Acquired Companies.

“Net Working Capital” means (x) current assets minus (y) current liabilities, on a consolidated basis, determined in accordance with GAAP and the Accounting Principles and the sample calculation of Net Working Capital on Schedule A; provided that, any such calculation of Net Working Capital shall exclude the Aggregate Cash Bonuses.

“New Business Contract” has the meaning set forth in Section 4.14(c).

“Operating Agreement” means an operating agreement among RCAP, StratCap and Apollo and certain other parties indicated on Exhibit A, on terms and conditions consistent with the terms and conditions set forth on Exhibit A, to be executed concurrently with the Closing.

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“Organizational Documents” means the articles of incorporation, certificate of incorporation, charter, by-laws, articles of formation, certificate of formation, regulations, operating agreement, certificate of limited partnership, partnership agreement, limited liability company agreement, certificate of designation and all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.

“Outside Date” has the meaning set forth in Section 6.1(e).

“Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by one or more of the Subject Companies or which shall, after giving effect to the transactions contemplated by this Agreement and the Ancillary Agreements, be owned by one or more of the Subject Companies.

“Permits” has the meaning set forth in Section 2.8(a).

“Permitted Liens” means (i) Liens for Taxes, assessments or other governmental charges not yet due or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been reflected on the Financial Statements in accordance with GAAP, (ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairman’s or other similar Liens arising in the ordinary course of business, (iii) easements, rights of way, building, zoning and other similar encumbrances or title defects arising in the ordinary course of business, (iv) Liens on assets securing debt incurred to finance the acquisition of such assets, (v) Liens on any of the assets of any Subject Company incurred in the ordinary course of business, and (vi) Liens on properties which do not materially impair business operations or the use of such properties in the ordinary course of business or materially affect the value of such properties.

“Person” means any individual, corporation, limited or general partnership, limited liability company, limited liability partnership, trust, association, joint venture, governmental entity or other entity.

“Post-Closing Tax Period” means any Tax period beginning after the Closing Date and, with respect to a Tax period that begins on or before the Closing Date and ends thereafter, the portion of such Tax period beginning after the Closing Date.

“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and, with respect to a Tax period that begins on or before the Closing Date and ends thereafter, the portion of such Tax period ending on the Closing Date.

“Pre-Closing Restructuring Actions” has the meaning set forth in Section 4.13.

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“Proceedings” has the meaning set forth in Section 2.7(a).

“Purchase Price” has the meaning set forth in the Recitals hereto.

“RCAP” has the meaning set forth in the introductory paragraph hereto.

“RCAP Credit Facilities” means the (i) First Lien Credit Agreement dated as of April 29, 2014, among RCAP, RCAP Holdings, RCS Management, the Lenders (having the meaning given in Article I thereof) and Barclays Bank PLC, as Issuing Bank and Swing Line Lender and Barclays Bank PLC, as administrative and collateral agent and (ii) the Second Lien Credit Agreement dated as of April 29, 2014, RCAP, RCAP Holdings, RCS Management, the Lenders (having the meaning given in Article I thereof) and Bank of America, N.A., as administrative and collateral agent.

“RCAP Holdings” means RCAP Holdings, LLC, a Delaware limited liability company.

“RCS” has the meaning set forth in the Recitals hereto.

“RCS Holdings” has the meaning set forth in the introductory paragraph hereto.

“RCS Management” means RCS Capital Management, LLC, a Delaware limited liability company.

“Required Financial Statements” has the meaning set forth in Section 4.7(b).

“Retained Business” means the businesses or activities of the Sellers or any of their Subsidiaries (other than the Subject Companies), including the Excluded RCS Business.

“Retained Seller IT Systems” means the Information Technology owned, leased or licensed by or to the Sellers or any of their Affiliates other than the SC IT Systems.

“SC Distributors” means SC Distributors, LLC.

“SC IT Systems” means the Information Technology owned, leased or licensed (or which shall, following the consummation of the transactions contemplated in this Agreement, be owned, leased or licensed) by or to the Subject Companies.

“SEC” means the Securities and Exchange Commission.

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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder.

“Self-Regulatory Organization” means any Self-Regulatory Organization as defined in Section 3(a)(26) of the Exchange Act, including FINRA, and any other exchange, association or agency that is charged with the regulation or supervision of broker-dealer, investment adviser, commodity futures, derivatives or insurance activities of a Broker-Dealer Subsidiary.

“Seller Benefit Plans” means Employee Benefit Plans that are not Acquired Benefit Plans.

“Seller Disclosure Letter” means the disclosure letter delivered by the Sellers to Apollo at the time of execution hereof.

“Seller Marks” means the Trademarks owned by the Sellers or any of their Affiliates (other than the Subject Companies) and used in the Business, other than any Trademarks which shall, after giving effect to the transactions contemplated by this Agreement and the Ancillary Agreements, be owned by one or more of the Subject Companies.

“Sellers” has the meaning set forth in the introductory paragraph hereto.

“Sellers Licensed IP Rights” means, other than Trademarks, any and all Intellectual Property owned by the Sellers or any of their Affiliates (other than the Subject Companies) that was used or practiced in the Business in the twelve (12) months prior to the Closing.

“Separation Notice” means a written notice, in form and substance mutually agreed by the parties, stating that the Business is owned by Apollo and its Affiliates and is no longer affiliated with Seller and its Affiliates.

“Software” means all computer software, including but not limited to application software, system software, firmware, middleware, mobile digital applications, assemblers, applets, compilers and binary libraries, including all source code and object code versions of any and all of the foregoing, in any and all forms and media, and all related documentation.

“Straddle Period” has the meaning set forth in Section 8.2.

“StratCap” has the meaning set forth in the Recitals hereto.

“StratCap MIPA” has the meaning set forth in Section 1.5(d).

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“StratCap Waiver” means the payment in full, settlement or termination of all earnout payments due under the StratCap MIPA and related documentation; the expiration, termination or waiver of all covenants limiting the operations of StratCap or its owners thereunder and the consent of parties to advisory contracts, limited liability agreements, dealer manager and wholesaling agreements with StratCap to the pertinent change of control and the termination or amendment, in a form reasonably acceptable to Apollo, of any restriction on (i) the ability of StratCap or, following the Closing, of Apollo, or any of their respective Affiliates, to solicit customers, employees or investments, or (ii) the manner in which, or the localities in which, all or any portion of the business or operations of StratCap or, following the Closing, of Apollo, or any of their respective Affiliates, is or would be conducted.

“Subject Companies” means the Acquired Companies and each of their respective Subsidiaries.

“Subject Companies’ Licensed IP Rights” means, other than Trademarks, any and all Intellectual Property owned by the Subject Companies that was used or practiced by the Sellers or any of their Affiliates (other than the Subject Companies) in the Retained Business in the twelve (12) months prior to the Closing.

“Subsidiary” means, with respect to a Person, any other Person (whether or not incorporated) that the first Person, directly or indirectly, owns or has the power to vote or control more than 50% of any class or series of capital stock or other equity interests of such Person.

“Target Net Working Capital” means (a) with respect to RCS, negative six million and five hundred thousand dollars (-$6,500,000) and (b) with respect to StratCap, six million dollars ($6,000,000). In the event that each of RCS and StratCap are sold and transferred to Apollo on the Closing Date, Target Net Working Capital shall be equal to the sum of (a) and (b).

“Target Regulatory Capital” means (a) with respect to RCS, the greater of (i) five million dollars ($5,000,000) of “Net Capital” or (ii) one third (1/3rd) of the “Aggregate Indebtedness” of RCS and (b) with respect to StratCap, the greater of (i) one million dollars ($1,000,000) of Net Capital or (ii) one third (1/3rd) of the “Aggregate Indebtedness” of SC Distributors. For purposes of determining Target Regulatory Capital, Net Capital and Aggregate Indebtedness shall be determined in accordance with the definitions and principles of the SEC Uniform Net Capital Rule 15c3-1. In the event that each of RCS and StratCap are sold and transferred to Apollo on the Closing Date, Target Regulatory Capital shall be equal to the sum of (a) and (b).

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“Tax” means any U.S. federal, state, local or foreign income, alternative, minimum, accumulated earnings, personal holding company, franchise, capital stock, profits, windfall profits, gross receipts, sales, use, value added, transfer, registration, stamp, premium, excise, customs duties, severance, environmental (including taxes under section 59A of the Code), real property, personal property, ad valorem, occupancy, license, occupation, employment, payroll, social security, disability, unemployment, workers’ compensation, withholding, estimated or other similar tax, duty, fee, assessment or other governmental charge or deficiencies thereof (including all interest and penalties thereon and additions thereto).

“Tax Accountant” has the meaning set forth in Section 8.3(d).

“Tax Agreements” has the meaning set forth in Section 2.11(d).

“Tax Return” means any federal, state, local or foreign tax return, declaration, statement, report, schedule, form or information return or any amendment to any of the foregoing relating to Taxes.

“Termination Agreement” has the meaning set forth in the Recitals.

“Third Party Claim” has the meaning set forth in Section 7.3(a).

“Third Party Consents” has the meaning set forth in Section 2.4(b).

“Trade Secrets” means all inventions, processes, designs, formulae, models, tools, algorithms, Software architectures, trade secrets, know-how, ideas, research and development, data and databases and confidential information.

“Volcker Rule” means Section 13 of the Bank Holding Company Act and the implementing regulations adopted thereunder.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.

APOLLO MANAGEMENT HOLDINGS, L.P.
By: Apollo Management Holdings GP, LLC, its general partner
By:	/s/ John Suydam
	Name: John Suydam
	Title: Vice President
RCS CAPITAL HOLDINGS, LLC
By:	/s/ Mark Auerbach
	Name: Mark Auerbach
	Title: Chairman of the Board of Directors
RCS CAPITAL CORPORATION
By:	/s/ Mark Auerbach
	Name: Mark Auerbach
	Title: Chairman of the Board of Directors

EX-10.1

Exhibit 10.1

Execution Version

NOTE PURCHASE AND
CLASS B SHARE AGREEMENT

This NOTE PURCHASE AND CLASS B SHARE AGREEMENT (this “Agreement”), dated as of November 8, 2015, is by and among RCAP Holdings, LLC, a Delaware limited liability company (“RCAP”), and RCS Capital Corporation, a Delaware corporation (the “Company”).

WHEREAS, RCAP is the owner of one (1) Class B common share, $0.001 par value, of the Company (the “Class B Share”); and

WHEREAS, the parties desire to enter into this Agreement in respect of (i) the purchase and issuance of the RCAP Note (as defined below) and (ii) certain matters related to the Class B Share as provided herein.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:

ARTICLE I

NOTE PURCHASE

1.1.        Purchase.

(a)        On the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined below), the Company shall sell to RCAP, and RCAP shall purchase from the Company, a senior unsecured promissory note in the aggregate principal amount of $12,000,000, in the form attached hereto as Exhibit A (the “RCAP Note”).

(b)        Subject to the satisfaction or waiver of the conditions set forth in Article II, at the closing of the issuance and purchase of the RCAP Note (the “Closing” and the date on which the Closing actually occurs is the “Closing Date”), which shall take place on the day on which the conditions set forth in Article II are first satisfied or, to the extent permitted, waived (other than any condition which by its nature is to be satisfied at the Closing, but subject to satisfaction or waiver of all such conditions):

(i)          The Company shall issue to RCAP the RCAP Note; and

(ii)         RCAP shall pay to the Company by wire transfer of immediately available funds to the account of the Company designated by the Company in writing an amount equal to $12,000,000.

ARTICLE II

CLOSING CONDITIONS

2.1.        Mutual Conditions.(a) The respective obligations of the Company and RCAP to consummate the Closing are subject to the satisfaction (or waiver in writing by the parties hereto), as of the Closing, of the following condition:

(i)          There shall be no (A) injunction, restraining order or decree of any nature of any governmental authority of competent jurisdiction in effect that restrains or prohibits the consummation of the transactions contemplated hereby or (B) pending action, suit or proceeding brought by any governmental authority which seeks to restrain the consummation of the transactions contemplated hereby.

2.2         RCAP Conditions.

(a) The obligations of RCAP to consummate the Closing are subject to the satisfaction (or waiver in writing by RCAP) as of the Closing of each of the following conditions:

(i)          The representations and warranties of the Company set forth in Article V shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date.

(ii)         The Company shall have performed and complied with in all material respects all covenants and agreements contained in this Agreement to be performed or complied with by it prior to or at the Closing.

(iii)        Luxor and its affiliates shall have purchased the Luxor Notes in accordance with the Luxor NPA concurrently with the Closing (each undefined term as defined in Section 5.1 below).

(v)        The Company shall have delivered to RCAP Luxor’s and Apollo Principal Holdings I, L.P.’s consents relating to the transactions contemplated hereby.

(vi)       The Company shall have delivered to RCAP executed amendments to the First Lien Credit Agreement and Second Lien Credit Agreements, each dated as of April 29, 2014, as amended (together, the “Credit Agreements”), attached hereto as Exhibit E.

2.2        Company Conditions.

(a) The obligations of the Company to consummate the Closing are subject to the satisfaction (or waiver in writing by the Company) as of the Closing of each of the following conditions:

(i)          The representations and warranties of RCAP set forth in Article IV shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date.

(ii)         RCAP shall have performed and complied with in all material respects all covenants and agreements contained in this Agreement to be performed or complied with by it prior to or at the Closing.

(v)         RCAP shall have executed and delivered to the Company an irrevocable proxy in the form attached hereto as Exhibit B with respect to the Class B Share.

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ARTICLE III
VOTING AGREEMENT AND GRANT OF IRREVOCABLE PROXY

3.1.        Proxy; Indemnity.

(a) At the Closing, RCAP shall irrevocably grant to, and appoints, the Special Committee of the Board of Directors of the Company (the “Board”) comprised of Mark Auerbach, Doug Wood and C. Thomas McMillen (the “Committee”) (and if any member of such Committee no longer serves on such Committee for any reason, then the remaining member or members of such Committee, in each case acting by a majority, and if none of the three individuals named above serve on the Committee, the Board may then appoint such other independent director(s) to the Committee that are reasonably acceptable to RCAP and Luxor), RCAP’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of RCAP, to vote or cause to be voted the Class B Share (in person or by proxy), as RCAP would be required to vote the Class B Share on any two Class B Specified Matters and to exercise all powers that RCAP would be entitled to exercise on any such matters if personally present, at any annual, special or other meeting of the stockholders of the Company and at any adjournment or adjournments thereof, and to execute any written consent of stockholders on behalf of RCAP in lieu of such meeting or otherwise; provided, however, that the Committee may not use the Proxy to approve any Class B Specified Matter, except (i) with respect to any Class B Specified Matter, in connection with a transaction in which the RCAP Note is repaid (including all accrued and outstanding interest thereunder) upon consummation of such transaction, with the effectiveness of any such transaction to be subject to such repayment of the RCAP Note, or (ii) with respect to one other Class B Specified Matter, in connection with a transaction that results in net proceeds to the Company or its subsidiaries of up to $80,000,000 (which, for the avoidance of doubt, shall not require repayment of the RCAP Note); provided, further, that to the extent the first or the second Class B Specified Matter requires one or more votes of the Company stockholders in order to effectuate an agreed, specific transaction (or any related transaction or a series of related transactions, including (x) any amendments to the certificate of incorporation or bylaws of the Company necessitated by such transactions and (y) any required approvals of the stockholders of the Company in accordance with the rules of the New York Stock Exchange), then such additional stockholder votes shall all be deemed to relate to one Class B Specified Matter and the Committee may use the Proxy in connection with any such additional stockholder votes. The proxy set forth in this Section 3.1(a) is hereinafter referred to as the “Proxy”.

(b) “Class B Specified Matters” means (i) any disposal of all or substantially all the Company’s assets, or any consolidation, merger or entry into a business combination by the Company with a third person, (ii) any authorization of a new class or series of capital stock or additional shares of capital stock, or reclassification or alteration of the terms of any class or series of capital stock, or any issuance of capital stock or other equity securities (including the right to acquire capital stock or other equity securities) by the Company, and (iii) any amendment or modification to the certificate of incorporation or bylaws of the Company in connection with any matters set forth in clauses (i) and (ii) above; provided, however, that the Committee may not use the Proxy to approve any Class B Specified Matter that adversely affects the voting rights of the Class B Share, except in connection with a transaction in which the RCAP Note is repaid (including all accrued and outstanding interest thereunder) upon consummation of such transaction, with the effectiveness of any such transaction to be subject to such repayment of the RCAP Note; provided, further, that with respect to any Class B Specified Matter (and any related transactions or series of transactions relating to any Class B Specified Matter or otherwise) each share of Class A common stock, par value $0.001 per share, of the Company held by RCAP or officers, employees, equityholders or affiliate of RCAP shall be treated in the same manner as each other share of Class A common stock.

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(c) The Proxy shall be irrevocable, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by RCAP with respect to the Class B Share. The Proxy shall (i) be subject to the rights and remedies of the Collateral Agent (the “First Lien Collateral Agent”) under the Security Documents (each undefined term as defined in the First Lien Credit Agreement) and the Collateral Agent (the “Second Lien Collateral Agent”) under the Security Documents (each undefined term as defined in the First Lien Credit Agreement). The Proxy shall be valid from the Closing Date and until 11:59 P.M. New York time on January 31, 2016 (the “End Date”); provided that (i) if the Company enters into a definitive agreement with respect to a Class B Specified Matter prior to 11:59 P.M. New York time on January 31, 2016, the End Date shall be automatically extended until 11:59 P.M. New York time on June 30, 2016 (and, in the case of Section 6.1, on July 31, 2016), in which case such extended date shall be the “End Date” for all purposes of this Agreement and (ii) notwithstanding the foregoing, the Proxy shall terminate automatically upon the occurrence and during the continuance of an Event of Default and the provision by the First Lien Collateral Agent or the Second Lien Collateral Agent, as applicable, of notice to the Borrower of the exercise of remedies by the First Lien Collateral Agent or the Second Lien Collateral Agent, as applicable, under the security documents described above, provided that such notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under Section 7.01(g) or (h) under either of such credit agreements. The First Lien Collateral Agent and Second Lien Collateral Agreement, and the Secured Parties under each of the credit agreements referred to above, are intended to be third party beneficiaries of this paragraph and have relied on this paragraph. The Company hereby agrees to recognize the Proxy. RCAP shall take such further action or execute such other instrument as may be reasonably requested by the Company to effectuate the intent of the Proxy.

(d) From and following the Closing, the Company agrees to defend, indemnify and hold harmless RCAP and its affiliates, officers, directors and employees (the “Indemnified Parties”) from and against any and all damages, losses, liabilities, claims, demands, suits, judgments, costs and expenses (including reasonable legal fees and expenses) incurred or suffered by the Indemnified Parties as a result of any claim made by any third party to the extent such claim is in connection with, relates to or arises from (i) a grant of the Proxy, (ii) a Class B Specified Matter approved using the Proxy pursuant to this Agreement, (iii) any transaction approved or entered into by the Company in connection with such Class B Specified Matter during the period from the Closing until the End Date (regardless of when such transaction is consummated), or (iv) the operation of the business of the Company during the period from the Closing until the End Date (the “Indemnifiable Claims”). From and following the Closing, upon request of RCAP, the Company shall advance reasonable expenses in connection with any defense of any Indemnifiable Claim or any action or proceeding arising therefrom.

3.2.        Director Designee. From and following the Closing, RCAP shall have the right to nominate one director to the Board (the “Director Designee”), who shall initially be Edward M. Weil, Jr., and the Class B Share shall be voted in favor of the election of the Director Designee to the Board. It is understood and agreed that in the event that a vacancy is created at any time as a result of the retirement, resignation, removal (with or without cause), death or disability of the Director Designee, then RCAP shall have the right to designate a replacement Director Designee to fill such vacancy. The Company shall cause any successor Director Designee to be appointed as a director of the Company effective as of the time the preceding Director Designee is no longer a member of the Board. Notwithstanding the foregoing, the Company shall not be obligated to cause to be appointed to the Board (or to be included in the Board’s slate of nominees to be approved by the Company’s shareholders) a Director Designee in the event that the Committee makes a final determination, in good faith, after receiving advice from a reputable outside legal counsel, that the Director Designee would not be qualified under any applicable law, or regulation or rules of any self-regulatory organization to serve as a director of the Company; provided that RCAP and the Director Designee (i) have been provided all documents and information provided to and prepared by the Committee relating to such determination, (ii) have been afforded a reasonable time to consult with legal counsel and (iii) have had the opportunity to present any relevant information to the Committee. This Section 3.2 shall terminate and be of no further force and effect immediately when RCAP or its affiliates no longer have beneficial ownership of the Class B Share (including as a result of a purchase of the Class B Share by the Company pursuant to Section 6.3).

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF RCAP

RCAP represents and warrants to the Company as follows:

4.1.        Organization; Authorization; Binding Agreement. RCAP is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed and the consummation of the transactions contemplated hereby are within RCAP’s organizational powers and have been duly authorized by all necessary organizational actions on the part of RCAP. RCAP has full power and authority to execute, deliver and perform this Agreement. This Agreement has been duly and validly executed and delivered by RCAP, and constitutes a legal, valid and binding obligation of RCAP enforceable against RCAP in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in an action in equity or at law).

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4.2.        Non-Contravention. The execution and delivery of this Agreement by RCAP does not, and the performance by RCAP of RCAP’s obligations hereunder and the consummation by RCAP of the transactions contemplated hereby will not (i) violate any law applicable to RCAP, (ii) require any consent, approval, order, authorization or other action by, or filing with or notice to, any person (including any governmental entity) under, constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration under, or result in the creation of any Encumbrances on the Class B Share pursuant to, any contract, agreement, trust, commitment, order, judgment, writ, stipulation, settlement, award, decree or other instrument binding on RCAP or any applicable law, or (iii) violate any provision of RCAP’s organizational documents, in each case, except as would not reasonably be expected to adversely affect the ability of RCAP to perform its obligations under this Agreement in any material respect.

4.3.        Ownership of Class B Share. RCAP is the legal or beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the Class B Share and has good and marketable title to the Class B Share free and clear of any liens, claims, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a stockholder in respect of the Class B Share (collectively, “Encumbrances”), except as provided hereunder, under the Collateral Agreements (as defined in the Credit Agreements) or pursuant to any applicable restrictions on transfer under the Securities Act of 1933, as amended (collectively, “Permitted Encumbrances”). Except pursuant to this Agreement, no person has any contractual or other right or obligation to purchase or otherwise acquire the Class B Share.

4.4.        Voting Power. RCAP has full voting power, with respect to the Class B Share and full power of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case with respect to the Class B Share. The Class B Share is not subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of the Class B Share, except as provided hereunder.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to RCAP as follows:

5.1         Side Agreements. Except for the Note Purchase Agreement, dated as of the date hereof, among Luxor Capital Partners, LP (“Luxor”) and its affiliates (the “Luxor NPA”) and the notes, in the form attached to the Luxor NPA, to be issued thereunder at the Closing (the “Luxor Notes”), true, correct and complete copies of which have been made available to RCAP, there are no agreements, side letters or arrangements between the Company, on the one hand, and Luxor or any of its affiliates, on the other hand, with respect to the subject matter of the Luxor NPA (the “Luxor Transaction”).

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ARTICLE VI

COVENANTS

6.1.        Restrictions. Until the End Date, RCAP shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on the Class B Share, (ii) transfer, sell, assign, gift, hedge, pledge or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of, or enter into any derivative arrangement with respect to (collectively, “Transfer”), the Class B Share or any right or interest therein (or consent to any of the foregoing), (iii) enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer of the Class B Share or any right or interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to the Class B Share, (v) deposit or permit the deposit of the Class B Share into a voting trust or enter into a voting agreement or arrangement with respect to the Class B Share, (vi) knowingly take any other action that would reasonably be expected to restrict, limit or interfere with the performance of RCAP’s obligations hereunder or the transactions contemplated hereby or (vii) without the prior written consent of the Committee, vote or cause to be voted the Class B Share (in person or by proxy), on any stockholder matter at any annual, special or other meeting of the stockholders of the Company and at any adjournment or adjournments thereof, or execute any written consent of stockholders in lieu of such meeting or otherwise. Any attempted Transfer of the Class B Share or any interest therein or any attempted exercise of the voting power with respect to the Class B Share in violation of this Section 6.1 shall be null and void. If any involuntary Transfer of the Class B Share shall occur (including, if applicable, a sale by RCAP’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold the Class B Share subject to all of the obligations, restrictions, liabilities and rights under this Agreement.

6.2.        Adjustments. Until the End Date, in the event (a) of any stock split, stock dividend, merger, amalgamation, reorganization, recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company on, of or affecting the Class B Share or (b) that RCAP shall become the beneficial owner of any additional Class B common shares of the Company, then the terms of this Agreement and the Proxy shall apply to the Class B or similar shares held by RCAP immediately following the effectiveness of the events described in clause (a) or RCAP becoming the beneficial owner thereof as described in clause (b), as though, in either case, they were Class B Share hereunder.

6.3.        Right to Purchase the Class B Share. From and after the Closing and until July 31, 2016, upon (a)(i) the payment and discharge of the unpaid principal and interest on the RCAP Note in full, or (ii) the purchase by the Company of the New Securities (as defined in the RCAP Note) from RCAP pursuant to Section 3.2 of the RCAP Note (a “Triggering Transaction”) and (b) the release of RCAP and RCS Capital Management, LLC (and their respective subsidiaries) from their obligations as a Guarantor under the Credit Agreements and under any other Loan Documents (as defined in the Credit Agreements) and the release of any Liens (as defined in the Credit Agreements) on their property (other than the Class B Share) created by any of the Security Documents (as defined in the Credit Agreements), the Company shall have the right, at its option and upon two (2) days’ prior written notice to RCAP, to purchase the Class B Share from RCAP (and RCAP shall transfer the Class B Share to the Company free and clear of any Encumbrance, other than Permitted Encumbrances) at a purchase price of $1.00 (the “Purchase Transaction”). The Purchase Transaction may be consummated, at the Company’s election, either concurrently with or as soon as practicable after a Triggering Transaction or by definitive agreement subject to the consummation of a Triggering Transaction. At the closing of the Purchase Transaction, RCAP shall deliver to the Company such instructions, authorizations, or other instruments to effectuate the transfer of the book-entry Class B Share.

ARTICLE VII
TERMINATION

7.1         Termination. The obligation to consummate the Closing may be terminated and the Closing abandoned at any time prior to the Closing:

(a) By mutual written consent of RCAP and the Company; or

(b) By RCAP or the Company upon written notice given to the other party in the event that the Closing shall not have taken place on or prior to December 31, 2015; provided that no party shall have the right to terminate this Agreement pursuant to this Section 7.1(b) if such party has breached any covenant or agreement hereunder and such breach has resulted in the failure of the Closing to occur on or prior to December 31, 2015.

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7.2         Effect of Termination. In the event of the termination of this Agreement as provided in Section 7.1, this Agreement shall become void and of no further force and effect, and there shall be no duties, liabilities or obligations of any kind or nature whatsoever on the part of any party hereto to the other party based either upon this Agreement or the transactions contemplated hereby, provided that no such termination (nor any provision of this Agreement) shall relieve any party from liability for any damages for fraud or any willful and material breach of this Agreement.

ARTICLE VIII

MISCELLANEOUS

8.1.        Notices. All notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing:

If to the Company:

RCS Capital Corporation

405 Park Ave, 14th floor

New York, NY 10022

Attention: General Counsel

Facsimile: 646-861-7743

E-mail: JTanaka@rcscapital.com

With copy (which shall not constitute notice) to:

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

Attention: Martin Nussbaum

Telephone: 212-698-3596

Facsimile: 212-698-0496

E-mail: Martin.Nussbaum@dechert.com

If to RCAP:

RCAP Holdings, LLC

405 Park Avenue, 14th Floor

New York, NY 10022

Attention: Jesse C. Galloway

Facsimile: 646-861-7804

Email: jgalloway@arlcap.com

With copies (which shall not constitute notice) to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY  10017

Attention: Lee Meyerson

   Elizabeth Cooper

Facsimile: 212-455-2502

Email: lmeyerson@stblaw.com

    ecooper@stblaw.com

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Notices if (i) mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received, (ii) sent by facsimile during the recipient’s normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient’s business on the next business say) and (iii) sent by e-mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).

8.2.        Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

8.3.        Binding Effect; Benefit; Assignment. The parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other parties, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein, except that the Committee is the intended third party beneficiary of Sections 3.1 and 6.1(vii). Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties (whether by operation of law or otherwise) without the prior written consent of the other party, except to the extent that such rights, interests or obligations are assigned pursuant to an involuntary Transfer as provided in Section 6.1. No assignment by any party shall relieve such party of any of its obligations hereunder. Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

8.4.        Governing law; Waiver of Jury Trial.

(a)         THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.

(b)         EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

8.5.        Counterparts; Delivery by Facsimile or Email. This Agreement may be executed by facsimile and in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. This Agreement, and any amendments hereto, waivers hereof or consents or notifications hereunder, to the extent signed and delivered by means of a facsimile machine or by email with facsimile, scan PDF or equivalent attachment, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

8.6.        Entire Agreement. This Agreement, and the documents and agreements referred to herein, constitutes the entire agreement of the parties and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.

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8.7.        Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the end that transactions contemplated hereby are fulfilled to the greatest extent possible.

8.8.        Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. In any proceeding for specific performance, the parties will waive the defense of adequacy of a remedy at law, and the parties waive any requirement for the securing or posting of any bond in connection with the remedies referred to in this Section 8.8.

8.9         Headings. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

8.10.      Mutual Drafting. Each party has participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties; accordingly, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

8.11.      Further Assurances. The parties will execute and deliver, or cause to be executed and delivered, all further documents and instruments and use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations, to perform their respective obligations under this Agreement.

8.12.      No Ownership Interest. Except as otherwise provided herein (including in Section 6.3), nothing contained in this Agreement shall be deemed to vest in the Committee or the Company any direct or indirect ownership or incidence of ownership of or with respect to the Class B Share, and all rights, ownership and economic benefits of and relating to the Class B Share shall remain vested in and belong to RCAP.

8.13.      Public Announcements. The initial press release concerning this Agreement shall be a press release in the form agreed by the parties hereto and thereafter the parties hereto shall consult with each other (and obtain the other party’s consent) before any party (or its affiliates) issues any press release or otherwise makes any public statements with respect to the transactions contemplated by this Agreement, except (a) as may be required by any applicable law, regulation or rule of any governmental authority, stock exchange or self-regulatory organization to which a party is subject if the party issuing such press release or other public statement has, to the extent practicable, provided the other parties with a reasonable opportunity to review and comment or (b) any press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a party in accordance with this Agreement, in each case under this clause (b) to the extent such disclosure is still accurate.

8.14.      Receivables. Exhibit C sets forth each of the receivables owed as of October 31, 2015 by the Company or its subsidiaries to RCAP and/or its affiliates for which an invoice has been sent to the Company (the “RCAP Receivables”). In the event that any of the RCAP Receivables are not paid in full within the later of (i) 30 days after the invoice was first sent to the Company and (ii) November 30, 2015, RCAP shall have the right to set-off any amount of Company receivables RCAP or its affiliates owe to the Company (the “Company Receivables”) (which receivables as of October 31, 2015 are set forth on Exhibit D) by the amount of such unpaid RCAP Receivables (for the avoidance of doubt, any amounts payable under the RCAP Note shall not be considered RCAP Receivables for the purposes of this Section 8.14). In the event that any of the Company Receivables are not paid in full within the later of (x) 30 days after the invoice was first sent to RCAP and (ii) November 30, 2015, the Company shall have the right to set-off any amount of RCAP Receivables by the amount of such unpaid Company Receivables.

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8.15.      Luxor NPA. The Company shall not agree to amend or modify any provision of the Luxor NPA without the prior written consent of RCAP. Any such amendment or modification without such consent shall be null and void.

8.16.      Sublease. As soon as practicable following the Closing, in connection with the Company’s requested amendment to the services agreement between the Company and AR Capital, LLC, the Company and AR Capital, LLC shall, and RCAP shall cause AR Capital, LLC to, enter into a sublease (in the form attached as Exhibit F) for the concourse, 8^th floor south and 12^th floor of the premises located at 405 Park Avenue, New York, NY occupied by the Company and its subsidiaries.  The term of such sublease shall be coterminous with the underlying lease, but terminable by either party upon twelve month notice.

8.17.      Guaranty.  The Company shall use commercially reasonable efforts to have RCAP and RCS Capital Management, LLC (and their respective subsidiaries) released from their obligations as a Guarantor under the Credit Agreements and under any other Loan Documents (as defined in the Credit Agreements) and for any Liens (as defined in the Credit Agreements) on their property (other than the Class B Share) created by any of the Security Documents (as defined in the Credit Agreements) to be automatically released, effective upon the Company’s repayment of the RCAP Note in full.

[Signature Page Follows]

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The parties are executing this Agreement on the date set forth in the introductory clause.

RCAP Holdings, LLC
By:	/s/ William M. Kahane
	Name:	William M. Kahane
	Title:	Managing Member
RCS Capital Corporation
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Chief Financial Officer

[Signature Page to Note Purchase and Class B Share Agreement]

EXHIBIT A

FORM OF RCAP NOTE

[See attached]

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED OR SOLD UNLESS REGISTERED PURSUANT TO THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.

SENIOR UNSECURED PROMISSORY NOTE

	New York, NY
$12,000,000	November [  ], 2015

RCS CAPITAL CORPORATION

FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, RCS Capital Corporation, a Delaware corporation (the “Issuer”), hereby promises to pay to the order of RCAP Holdings, LLC, a Delaware limited liability company (the “Initial Holder”), or its registered assigns the aggregate principal amount of Twelve Million Dollars ($12,000,000), together with any accrued interest added to the principal pursuant to Section 4, to be paid in such amounts and on each payment date as set forth herein, in each case together with all accrued and unpaid interest thereon as provided herein. The indebtedness evidenced by this Note (as defined below) shall constitute senior unsecured indebtedness of the Issuer.

Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1.

“Applicable Rate” means 12% per annum.

“Bankruptcy Code” means the provisions of Title 11 of the United States Code, 11 U.S.C. § 101 et seq., as now or hereafter in effect or any successor thereto.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by Law to close.

“Credit Agreements” means (i) the First Lien Credit Agreement, dated as of April 29, 2014 (as amended by Amendment No.1 dated as of June 30, 2015 and Amendment No. 2 dated as of November 8, 2015), among the Issuer, RCAP Holdings, LLC, RCS Capital Management, LLC, the guarantors, the lenders and other parties thereto from time to time and Barclays Bank PLC, as Administrative Agent and Collateral Agent and (ii) the Second Lien Credit Agreement, dated as of April 29, 2014 (as amended by Amendment No.1 dated as of June 30, 2015 and Amendment No. 2 dated as of November 8, 2015), among the Issuer, RCAP Holdings, LLC, RCS Capital Management, LLC, the guarantors, the lenders and other parties thereto from time to time and Bank of America, N.A., as Administrative Agent and Collateral Agent.

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“Credit Facilities” means one or more debt facilities or agreements (including, without limitation, the Credit Agreements and the indenture governing the Convertible Senior Notes) or commercial paper facilities or indentures, in each case with banks or other institutional lenders providing for, or acting as initial purchasers of, revolving credit loans, term loans, notes, debentures, securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether after or upon termination or otherwise), restructured, restated or refinanced (including any agreement to extend the maturity thereof and adding additional borrowers or guarantors and including by means of sales of debt securities to institutional investors) in whole or in part from time to time and including increasing the amount of available borrowings thereunder.

“Default” means any of the events specified in Section 6 which constitutes an Event of Default or which, upon the giving of notice, the lapse of time, or both pursuant to Section 6, would, unless cured or waived, become an Event of Default.

“Default Rate” means, at any time, the Applicable Rate plus 1.0%.

“Encumbrances” means any liens, claims, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of holder in respect of the New Securities, except pursuant to any applicable restrictions on transfer under the Securities Act.

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended and the rules and regulations thereunder.

“Event of Default” has the meaning set forth in Section 6.

“Exchange Transaction” has the meaning set forth in Section 3.1.

“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supranational bodies such as the European Union or the European Central Bank).

“Holder” means the Initial Holder and each subsequent holder of the Note registered in the Note Register.

“Initial Holder” has the meaning set forth in the introductory paragraph.

“Interest Payment Date” means February 1, May 1, August 1 and November 1 of each year beginning on February 1, 2016; provided that if any such day is not a Business Day, then the applicable Interest Payment Date shall be the immediately preceding Business Day.

“Issuer” has the meaning set forth in the introductory paragraph.

“Law” as to any Person, means any law (including common law), statute, ordinance, treaty, rule, regulation, policy or requirement of any Governmental Authority and authoritative interpretation thereon, whether now or hereafter in effect, in each case, applicable to or binding on such Person or any of its properties or to which such Person or any of its properties is subject.

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“Maturity Date” means the earlier of (a) November 1, 2021 and (b) the date on which all amounts under this Note shall become due and payable pursuant to Section 7.

“New Financing” has the meaning set forth in Section 3.1.

“New Securities” has the meaning set forth in Section 3.1.

“Note” means this senior unsecured promissory note issued by the Issuer in an aggregate principal amount of Twelve Million Dollars ($12,000,000).

“Note Register” has the meaning set forth in Section 5.1(a).

“Note Value” has the meaning set forth in Section 3.1.

“Notice of New Financing” has the meaning set forth in Section 3.1.

“Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, Governmental Authority or other entity.

“PIK Note” has the meaning set forth in Section 4.7.

“Record Date” means, with respect to any Interest Payment Date, the date that is fifteen days earlier (whether or not such day is a Business Day) of the applicable Interest Payment Date.

“Securities Act” has the meaning set forth in the legend.

“Senior Lender Approvals” has the meaning set forth in Section 3.1.

“Specified Subsidiary” shall mean any Subsidiary that guarantees loans under the Credit Agreements or any subsequent refinancing thereof.

“Stock” shall mean all shares, options, warrants, general or limited partnership interests or other equivalents (regardless of how designated) of or in a corporation, partnership or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act).

“Stockholder Approval” has the meaning set forth in Section 3.1.

“Subordinated Debt and Preferred Equity Approvals” has the meaning set forth in Section 3.1.

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“Subsidiary” shall mean, with respect to any Person, (a) any corporation of which an aggregate of more than fifty percent (50%) of the outstanding Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of fifty percent (50%) or more of such Stock whether by proxy, agreement, operation of law or otherwise, and (b) any partnership or limited liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner or may exercise the powers of a general partner.

“Taxes” has the meaning set forth in Section 9(a).

Issuance; Payment Date; Ranking.

Issuance of this Note. This Note is a general obligation of the Issuer.

Payment Date. On the Maturity Date, the Issuer shall pay to the Holder the principal amount of this Note, together with all accrued and unpaid interest thereon and all other amounts payable under this Note, to the extent not paid prior thereto.

Ranking. This Note is a senior unsecured indebtedness of the Issuer. The payment obligations with respect to this Note shall rank pari passu in priority of payment to the Issuer’s payment obligations under the 5.00% Convertible Senior Notes due 2021 (the “Convertible Senior Notes”).

Prepayment. The unpaid principal amount of, and any accrued interest on, this Note may be prepaid in whole or in part at any time or times on or prior to July 31, 2016 without premium or penalty.

New Securities.

Right to Exchange this Note. In the event, on or prior to the Maturity Date, the Issuer raises capital through an issuance of any securities junior to the Credit Agreements (in a single transaction or a series of related transactions) from a third party resulting in net proceeds to the Issuer or its Subsidiaries of at least $175,000,000 (the “New Financing”), the Issuer shall promptly inform the Holder of the New Financing by written notice (the “Notice of New Financing”), which shall include a copy of the definitive documents or a summary of the principal economic terms thereof. The Issuer may elect to provide the Notice of New Financing after an agreement in principle has been reached regarding the provision of the New Financing. The Holder shall have the right, exercisable by irrevocable written notice to the Issuer within a period of five (5) Business Days after receipt of the Notice of New Financing to exchange (an “Exchange Transaction”) this Note, in whole, but not in part, valued at the outstanding principal amount of this Note, together with all accrued and unpaid interest thereon, as of the date of the consummation of the Exchange Transaction (the “Note Value”), for one or more securities (the “New Securities”) having, in the aggregate, terms (including economic terms) which are substantially equivalent to the terms contained in the securities issued in the New Financing. The consummation of an Exchange Transaction shall be subject to (i) any required approvals of the senior lenders under the Credit Agreements (“Senior Lender Approvals”); (ii) any required approvals of the subordinated debt and preferred equity holders of the Issuer (“Subordinated Debt and Preferred Equity Approvals”); (iii) any required approvals of the common stockholders of the Issuer in accordance with the rules of the New York Stock Exchange (the “Stockholder Approval”); and (iv) any required regulatory approvals. The Issuer shall use commercially reasonable efforts to obtain any Senior Lender Approvals, Subordinated Debt and Preferred Equity Approvals and regulatory approvals that are required to consummate the Exchange Transaction. If the Stockholders Approval is required, the Issuer shall include, in the next proxy statement for a meeting of the Issuer’s stockholders otherwise filed by the Issuer with the Securities and Exchange Commission after the Holder’s election for an Exchange Transaction, an item on the ballot for approval of the stockholders of a proposal to approve the Exchange Transaction. The Exchange Transaction may be consummated, at the Issuer’s election, either concurrently with or as soon as practicable after the New Financing or by definitive agreement subject to the consummation of the New Financing and to the receipt of any such required approvals. Upon the consummation of the Exchange Transaction, this Note shall be deemed satisfied and discharged in full.

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Right to Purchase New Securities. On or prior to July 31, 2016 and following the issuance of the New Securities to the Holder upon the consummation of the Exchange Transaction, the Issuer shall have the right, at its option, to purchase all (but not less than all) of the New Securities from the Holder (and the Holder shall transfer the New Securities to the Issuer free and clear of any Encumbrances) at a purchase price, payable in cash by or on behalf of the Issuer, equal to the Note Value. The Issuer shall give the Holder written notice of the exercise of its right pursuant to this Section 3.2 at least five (5) Business Days prior to the proposed closing date of the purchase of the New Securities. Such notice shall state the proposed closing date of such purchase, which shall be a Business Day, the purchase price (and include a reasonably detailed calculation thereof) and the manner and place of payment. At the closing of such purchase, the Holder shall deliver to the Issuer original certificate(s) evidencing the New Securities, duly endorsed in blank or accompanied by stock power or other instrument of transfer, as appropriate. Notwithstanding anything to the contrary herein, this Section 3.2 shall survive the satisfaction and discharge of this Note.

Interest.

Interest. Except as otherwise provided herein, this Note shall bear interest at the Applicable Rate from the date hereof until the Maturity Date.

Interest Payment Dates; PIK Interest. Interest shall be payable quarterly in arrears on each Interest Payment Date to the Person who is the registered Holder of this Note at the close of business on the Record Date immediately preceding the applicable Interest Payment Date. Notwithstanding the foregoing, on any Interest Payment Date, at the option of the Issuer, interest may be payable in kind, by increasing the principal amount of this Note by the amount of such Interest.

Default Interest. During the continuance of an Event of Default, the Issuer shall pay to the Holder interest at the Default Rate on the outstanding principal amount of this Note and on any other amount payable by the Issuer hereunder (including accrued but unpaid interest to the extent permitted under applicable Law). Interest payable at the Default Rate shall be payable upon demand and in kind, by increasing the principal amount of this Note by the amount of such Interest.

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Computation of Interest. All computations of interest shall be made on the basis of a year of 365 days (or 366 days in the case of a leap year), and the actual number of days elapsed (including the first day but excluding the last day).

Interest Rate Limitation. If at any time and for any reason whatsoever, the interest rate payable on this Note shall exceed the maximum rate of interest permitted to be charged under applicable Law, such interest rate shall be reduced automatically to the maximum rate of interest permitted to be charged under applicable Law and that portion of each sum paid attributable to that portion of such interest rate that exceeds the maximum rate of interest permitted by applicable Law shall be deemed a voluntary prepayment of principal.

Legal Holidays. In any case where any Interest Payment Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.

PIK Note. At the Holder’s request, the Issuer shall deliver one or more additional promissory notes (each, a “PIK Note”) having an aggregate principal amount equal to the accrued but unpaid interest on this Note and shall otherwise be in form and substance substantially identical to this Note, including with respect to the interest rate.  Interest on each PIK Note shall accrue from the Interest Payment Date in respect of which such additional PIK Note was issued until repayment of the principal and payment of all accrued interest in full.  In the event a PIK Note is not requested by the Holder and/or delivered by the Issuer in accordance herewith, interest shall accrue on this Note such that the aggregate interest due and payable on the Maturity Date and on each Interest Payment Date would be the same as if all PIK Notes not issued had been issued, and the principal payable on the Maturity Date with respect to this Note shall be an amount equal to the sum of the principal outstanding hereunder and the aggregate principal which would be outstanding if the PIK Notes not issued had been issued.

Note Register; Payment Mechanics.

Note Register.

The Issuer shall cause to be kept at its principal office a register for the registration and transfer of this Note (the “Note Register”). The name and address of the Holder of this Note, any transfer of this Note, and the name and address of the transferee of this Note shall be registered in the Note Register.

The Person in whose name this Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes of this Note, and the Issuer shall not be affected by any notice to the contrary, until due presentment of such Note for registration of transfer so provided in this Section 5.1. Payment of or on account of the principal, and interest on this Note shall be made to or upon the written order of such registered holder.

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The Person in whose name this Note is registered on the Note Register at the close of business on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office or agency of the Issuer maintained by the Issuer for such purposes.

Direct Payment.

On the Maturity Date, the Issuer will pay or cause to be paid all amounts payable with respect to this Note (without any presentment of this Note and without any notation of such payment being made thereon) by crediting (before 1:00 p.m., New York time), by intra-bank or Federal funds bank wire transfer in same day funds in U.S. Dollars to the Holder’s account in any bank in the United States as may be designated and specified in writing by the Holder at least two Business Days prior thereto.

Notwithstanding anything to the contrary contained in this Note, if the Maturity Date is not a Business Day, then the Issuer shall pay such amount on the next succeeding Business Day, and interest shall accrue on such amount until the date on which such amount is paid and payment of such accrued interest shall be made concurrently with the payment of such amount; provided that the Issuer may elect to pay in full (but not in part) any such amount on the last Business Day prior to the date such payment otherwise would be due, and no such additional interest shall accrue on such amount.

Lost, etc. Notes. If a mutilated Note is surrendered to the Issuer or if the Holder of this Note claims and submits an affidavit or other evidence, reasonably satisfactory to the Issuer to the effect that this Note has been lost, destroyed or wrongfully taken, the Issuer shall issue a replacement Note if the customary requirements relating to replacement securities are reasonably satisfied. If required by the Issuer, the Holder must provide an indemnity bond, or other form of indemnity, sufficient in the reasonable judgment of the Issuer to protect the Issuer from any loss which it may suffer if a Note is replaced.

Replacement Notes. All Notes issued by the Issuer shall be in form and substance identical to this Note other than the principal amount and the Holder thereof.

Events of Default. The occurrence and continuance of any of the following shall constitute an “Event of Default” hereunder:

default in any payment of interest on this Note when due and payable, and the default continues for a period of thirty (30) days;

default in the payment of principal of this Note when due and payable on the Maturity Date, upon declaration of acceleration or otherwise;

any representation or warranty made in this Note shall prove to have been untrue in any material respect when so made and which breach materially adversely affects the ability of the Issuer to perform its obligations under this Note;

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failure by the Issuer for 60 days after written notice from the Holder has been received by the Issuer to comply with any of its other covenants or agreements contained in this Note;

default by the Issuer or any Specified Subsidiary (i) under the Credit Facilities or (ii) with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of Twenty Eight Million Seven Hundred and Fifty Thousand Dollars ($28,750,000) (or its foreign currency equivalent) in the aggregate of the Issuer and/or any such Specified Subsidiary, whether such indebtedness now exists or shall hereafter be created, which default, in each case under the foregoing clauses (i) and (ii), (A) results in such indebtedness becoming or being declared due and payable or (B) constitutes a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise;

a final judgment for payment of Twenty Eight Million Seven Hundred and Fifty Thousand Dollars ($28,750,000) (or its foreign currency equivalent) or more (excluding any amounts covered by insurance) rendered against the Issueror any Specified Subsidiary, which judgment is not discharged or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced or (ii) the date on which all rights to appeal have extinguished;

the Issuer or any Specified Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other similar relief with respect to the Issuer or any such Specified Subsidiary or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Issuer or any such Specified Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or

an involuntary case or other proceeding shall be commenced against the Issuer or any Specified Subsidiary seeking liquidation, reorganization or other relief with respect to the Issuer or such Specified Subsidiary or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Issuer or such Specified Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 consecutive days.

Remedies.

Acceleration of Note. If an Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6) occurs and is continuing, the Holder, by notice to the Issuer, may declare the unpaid principal of and any accrued interest on this Note to be due and payable, and immediately upon such declaration, the principal and interest shall be due and payable. If an Event of Default specified in clause (g) or (h) of Section 6 occurs, such an amount shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Holder.

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Other Remedies.

If an Event of Default occurs and is continuing, the Holder may pursue any rights and remedies available under this Note and applicable law to collect the payment of principal or interest on this Note or to enforce the performance of any provision of this Note.

A delay or omission by the Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

Taxes. The Issuer shall make all payments, whether on account of principal, interest or otherwise, free of and without deduction or withholding for any present or future taxes, duties or other charges (“Taxes”), unless otherwise required by Law.

Miscellaneous.

Notices.

All notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing:

If to the Issuer:

RCS Capital Corporation

405 Park Ave, 14th floor

New York, NY 10022

Attention: General Counsel

Facsimile: 646-861-7743

E-mail: JTanaka@rcscapital.com

With copy (which shall not constitute notice) to:

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

Attention: Martin Nussbaum

Telephone: 212-698-3596

Facsimile: 212-698-0496

E-mail: Martin.Nussbaum@dechert.com

If to the Holder which acquired this Note from the Issuer on the date hereof at the address or facsimile number set forth on Exhibit A hereto or, in the case of another Holder, at the address or facsimile number provided by such Holder to the Issuer.

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With copies (which shall not constitute notice) to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY  10017

Attention: Lee Meyerson

   Elizabeth Cooper

Facsimile: 212-455-2502

Email: lmeyerson@stblaw.com

    ecooper@stblaw.com

Notices if (i) mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received, (ii) sent by facsimile during the recipient’s normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient’s business on the next Business Day) and (iii) sent by e-mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).

Successors and Assigns. This Note shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. The Holder may assign this Note in whole (but not in part); provided, that the Holder shall provide the Issuer prior notice at least three Business Days before assigning this Note.

GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUCTED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(B) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES. THE ISSUER AND THE HOLDER HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, AND IRREVOCABLY ACCEPT FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUER AND THE HOLDER IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY SUCH CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUER IN ANY OTHER JURISDICTION.

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Waiver of Jury Trial. EACH OF THE ISSUER AND THE HOLDER WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE.

Independence of Covenants. All covenants hereunder shall be given in any jurisdiction independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.

Note Solely A Corporate Obligation. No recourse for the payment of the principal of or accrued and unpaid interest on this Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer under this Note shall be had against any stockholder, employee, agent, officer, member of the Board of Directors or subsidiary, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation whether by virtue of any constitution, statue or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the issue of this Note.

Revival and Reinstatement of Obligations. If the Holder repays, refunds, restores, or returns in whole or in part, any payment or property previously paid or transferred to the Holder in full or partial satisfaction of any obligation evidenced by this Note, because the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any Law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers (each, a “Voidable Transfer”), or because the Holder elects to do so on the reasonable advice of its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount thereof that the Holder elects to repay, restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees of the Holder related thereto, the liability of the Issuer with respect to the amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will exist.

Waiver of Notice. The Issuer hereby waives demand for payment, presentment for payment, protest, notice of payment, notice of dishonor, notice of nonpayment, notice of acceleration of maturity and diligence in taking any action to collect sums owing hereunder.

Amendments and Waivers.

Written Agreement. Neither this Note nor any provision hereof, may be amended, waived or modified (including pursuant to any side letter or other arrangement or agreement that changes, expands or otherwise modifies the rights or obligations of the Issuer and/or Holder) except pursuant to an agreement in writing entered into between the Issuer and the Holder and with the prior written consent of Luxor Capital Partners, LP.

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Notation on or Exchange of Notes. If an amendment or waiver changes the terms of this Note, the Issuer may require the Holder to deliver this Note to the Issuer so that it may place an appropriate notation on this Note about the changed terms and return it to the Holder.

Headings. The headings of the various Sections and subsections herein are for reference only and shall not define, modify, expand or limit any of the terms or provisions hereof.

No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising on the part of the Holder, of any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

Electronic Execution. The words “execution”, “signed”, “signature”, and words of similar import in this Note shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable Law, including the Electronic Signatures in Global and National Commerce Act of 2000 (15 USC § 7001 et seq.), the Electronic Signatures and Records Act of 1999 (N.Y. State Tech. Law §§ 301-309), or any other similar state Laws based on the Uniform Electronic Transactions Act.

Severability. If any term or provision of this Note is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Note or invalidate or render unenforceable such term or provision in any other jurisdiction.

Expenses. The Issuer agrees to pay all reasonable out-of-pocket expenses incurred by the Holder in connection with the administration of this Note or in connection with any amendments, modifications or waivers of the provisions hereof or thereof or incurred by the Holder in connection with the enforcement or protection of its rights under this Note, including in connection with the New Financing, the Exchange Transaction or any other refinancing or restructuring of the credit arrangements provided under this Note in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings, including the reasonable fees, charges and disbursements of one New York counsel (and counsel in each other relevant local jurisdiction) for the Holder. The agreements in this Section 9.14 shall survive repayment of all of the indebtedness evidenced by this Note. All amounts due under this Section 9.14 shall be paid promptly following receipt by the Issuer of an invoice relating thereto setting forth such expenses in reasonable detail.

Effectiveness of Note. This Note shall become effective at and as of the date hereof.

No Set-off, etc. The Issuer hereby waives, for the benefit of the Holder, any rights to set-offs, recoupments and counterclaims.

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Representations and Warranties. The Issuer hereby represents and warrants as of the date hereof as follows:

Organization and Qualification. The Issuer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization;

Power and Authority. The Issuer is duly authorized to execute, deliver and perform its obligations under this Note. The execution, delivery and performance of this Note have been duly authorized by all necessary action, and do not (i) require any consent or approval of any equity holders of the Issuer or any Governmental Authority, other than those already obtained; (ii) contravene the organizational documents of the Issuer; or (iii) violate or cause a default under any material applicable Law or material contract to which the Company is a party or by which the Company or any of its properties is bound; and

Enforceability. This Note is a legal, valid and binding obligation of the Issuer, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally,

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

RCS CAPITAL CORPORATION
By:
	Name:
	Title:

[Signature Page to Senior Unsecured Promissory Note (RCAP)]

EXHIBIT A

Address and Facsimile Number for Notice:

RCAP Holdings, LLC

405 Park Avenue, 14th Floor

New York, NY 10022

Attention: Jesse C. Galloway

Facsimile: 646-861-7804
Email: jgalloway@arlcap.com

EXHIBIT B

FORM OF IRREVOCABLE PROXY

RCAP Holdings, LLC, a Delaware limited liability company (“RCAP”), for consideration received, hereby irrevocably grants to, and appoints, the Special Committee of the Board of Directors (the “Board”) of RCS Capital Corporation (the “Company”) comprised of Mark Auerbach, Doug Wood and C. Thomas McMillen (the “Committee”) (and if any member of such Committee no longer serves on such Committee for any reason, then the remaining member or members of such Committee, in each case acting by a majority and if none of the three individuals named above serve on the Committee, the Board may then appoint such other independent director(s) to the Committee that are reasonably acceptable to RCAP and Luxor Capital Partners, LP), RCAP’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of RCAP, to vote or cause to be voted the Class B common share, $0.001 par value, of the Company (the “Class B Share”) (in person or by proxy), as RCAP would be required to vote the Class B Share on any two Class B Specified Matters and to exercise all powers that RCAP would be entitled to exercise on any such matters if personally present, at any annual, special or other meeting of the stockholders of the Company and at any adjournment or adjournments thereof, and to execute any written consent of stockholders on behalf of RCAP in lieu of such meeting or otherwise; provided, however, that the Committee may not use this proxy to approve any Class B Specified Matter, except (i) with respect to any Class B Specified Matter, in connection with a transaction in which the Senior Unsecured Promissory Note in the aggregate principal amount of $12,000,000, held by RCAP (the “RCAP Note”) is repaid (including all accrued and outstanding interest thereunder) upon consummation of such transaction, with the effectiveness of any such transaction to be subject to such repayment of the RCAP Note, or (ii) with respect to one other Class B Specified Matter, in connection with a transaction that results in net proceeds to the Company or its subsidiaries of up to $80,000,000 (which, for the avoidance of doubt, shall not require repayment of the RCAP Note); provided, further, that to the extent the first or the second Class B Specified Matter requires one or more votes of the Company stockholders in order to effectuate an agreed, specific transaction (or any related transaction or a series of related transactions, including (x) any amendments to the certificate of incorporation or bylaws of the Company necessitated by such transactions and (y) any required approvals of the stockholders of the Company in accordance with the rules of the New York Stock Exchange), then such additional stockholder votes shall all be deemed to relate to one Class B Specified Matter and the Committee may use this proxy in connection with any such additional stockholder votes.

“Class B Specified Matters” means (i) any disposal of all or substantially all the Company’s assets, or any consolidation, merger or entry into a business combination by the Company with a third person, (ii) any authorization of a new class or series of capital stock or additional shares of capital stock, or reclassification or alteration of the terms of any class or series of capital stock, or any issuance of capital stock or other equity securities (including the right to acquire capital stock or other equity securities) by the Company, and (iii) any amendment or modification to the certificate of incorporation or bylaws of the Company in connection with any matters set forth in clauses (i) and (ii) above; provided, however, that the Board may not use this proxy to approve any Class B Specified Matter that adversely affects the voting rights of the Class B Share, except in connection with a transaction in which the RCAP Note is repaid (including all accrued and outstanding interest thereunder) upon consummation of such transaction, with the effectiveness of any such transaction to be subject to such repayment of the RCAP Note; provided, further, that with respect to any Class B Specified Matter (and any related transactions or series of transactions relating to any Class B Specified Matter or otherwise) each share of Class A common stock, par value $0.001 per share, of the Company held by RCAP or officers, employees, equityholders or affiliate of RCAP shall be treated in the same manner as each other share of Class A common stock.

This proxy shall be irrevocable, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by RCAP with respect to the Class B Share. This proxy shall (i) be subject to the rights and remedies of the Collateral Agent (the “First Lien Collateral Agent”) under the Security Documents (each undefined term as defined in the First Lien Credit Agreement, dated as of April 29, 2014, as amended, among the Company and other parties thereto) and the Collateral Agent (the “Second Lien Collateral Agent”) under the Security Documents (each undefined term as defined in the First Lien Credit Agreement, dated as of April 29, 2014, as amended, among the Company and other parties thereto). This proxy shall be valid from the date hereof and until 11:59 P.M. New York time on January 31, 2016 (the “End Date”); provided that (i) if the Company enters into a definitive agreement with respect to a Class B Specified Matter prior to 11:59 P.M. New York time on January 31, 2016, the End Date shall be automatically extended until 11:59 P.M. New York time on June 30, 2016 and (ii) notwithstanding the foregoing, this proxy shall terminate automatically upon the occurrence and during the continuance of an Event of Default and the provision by the First Lien Collateral Agent or the Second Lien Collateral Agent, as applicable, of notice to the Borrower of the exercise of remedies by the First Lien Collateral Agent or the Second Lien Collateral Agent, as applicable, under the security documents described above, provided that such notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under Section 7.01(g) or (h) under either of such credit agreements. The First Lien Collateral Agent and Second Lien Collateral Agreement, and the Secured Parties under each of the credit agreements referred to above, are intended to be third party beneficiaries of this paragraph and have relied on this paragraph.

This proxy is given pursuant to that certain Note Purchase and Class B Share Agreement, dated as of November 8, 2015, between the Company and RCAP.

Dated: November 8, 2015

RCAP HOLDINGS, LLC
By:
	Name:
	Title:

EX-10.2

Exhibit 10.2

Execution Version

NOTE PURCHASE AGREEMENT

This NOTE PURCHASE AGREEMENT (this “Agreement”), dated as of November 8, 2015, is by and among the parties set forth on Annex A hereto (collectively, the “Noteholders” and each individually a “Noteholder”), and RCS Capital Corporation, a Delaware corporation (the “Company”).

WHEREAS, the parties desire to enter into this Agreement in respect of the purchase and issuance of the Luxor Notes (as defined below) as provided herein.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:

ARTICLE I

NOTE PURCHASE

1.1.          Purchase.

(a) On the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined below), the Company shall sell to each Noteholder, and each Noteholder shall purchase from the Company, a senior unsecured promissory note, in the form attached hereto as Exhibit A (collectively, the “Luxor Notes”), in the principal amount set forth opposite the name of such Noteholder on Annex A hereto (which, in the aggregate, total $15,000,000 in principal amount).

(b) Subject to the satisfaction or waiver of the conditions set forth in Article II, at the closing of the issuance and purchase of the Luxor Notes (the “Closing” and the date on which the Closing actually occurs is the “Closing Date”), which shall take place on the day on which the conditions set forth in Article II are first satisfied or, to the extent permitted, waived (other than any condition which by its nature is to be satisfied at the Closing, but subject to satisfaction or waiver of all such conditions):

(i)          The Company shall issue to the Noteholders the Luxor Notes; and

(ii)         The Noteholders shall pay to the Company by wire transfer of immediately available funds to the account of the Company designated by the Company in writing the amounts set forth on Annex A hereto (which, in the aggregate, total $15,000,000).

ARTICLE II

CLOSING CONDITIONS

2.1.          Mutual Conditions.

(a) The respective obligations of the Company and the Noteholders to consummate the Closing are subject to the satisfaction (or waiver in writing by the parties hereto), as of the Closing, of the following condition:

(i)          There shall be no (A) injunction, restraining order or decree of any nature of any governmental authority of competent jurisdiction in effect that restrains or prohibits the consummation of the transactions contemplated hereby or (B) pending action, suit or proceeding brought by any governmental authority which seeks to restrain the consummation of the transactions contemplated hereby.

2.2           Noteholders Conditions.

(a) The obligations of the Noteholders to consummate the Closing are subject to the satisfaction (or waiver in writing by the Noteholders) as of the Closing of each of the following conditions:

(i)          The representations and warranties of the Company set forth in Article IV shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date.

(ii)         RCAP shall have purchased the RCAP Note and delivered the Proxy (as defined in the RCAP NPA) to the Company in accordance with the RCAP NPA concurrently with the Closing (each undefined term as defined in Section 4.1 below).

(iii)        The Company shall have delivered to the Noteholders Apollo Principal Holdings I, L.P.’s consent relating to the transactions contemplated hereby.

(vi)        The Company shall have delivered to Luxor executed amendments to the First Lien Credit Agreement and Second Lien Credit Agreements, each dated as of April 29, 2014, as amended (together, the “Credit Agreements”), attached hereto as Exhibit B.

2.2           Company Conditions.

(a) The obligations of the Company to consummate the Closing are subject to the satisfaction (or waiver in writing by the Company) as of the Closing of each of the following condition:

(i)          The representations and warranties of the Noteholders set forth in Article III shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE NOTEHOLDERS

Each Noteholder represents and warrants to the Company as follows:

3.1.          Organization; Authorization; Binding Agreement. Such Noteholder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed and the consummation of the transactions contemplated hereby are within such Noteholder’s organizational powers and have been duly authorized by all necessary organizational actions on the part of such Noteholder. Such Noteholder has full power and authority to execute, deliver and perform this Agreement. This Agreement has been duly and validly executed and delivered by such Noteholder, and constitutes a legal, valid and binding obligation of such Noteholder enforceable against such Noteholder in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in an action in equity or at law).

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3.2.          Non-Contravention. The execution and delivery of this Agreement by such Noteholder does not, and the performance by such Noteholder of its obligations hereunder and the consummation by such Noteholder of the transactions contemplated hereby will not (i) violate any law applicable to such Noteholder, (ii) require any consent, approval, order, authorization or other action by, or filing with or notice to, any person (including any governmental entity) under, constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration under any contract, agreement, trust, commitment, order, judgment, writ, stipulation, settlement, award, decree or other instrument binding on such Noteholder or any applicable law, or (iii) violate any provision of such Noteholder’s organizational documents, in each case, except as would not reasonably be expected to adversely affect the ability of such Noteholder to perform its obligations under this Agreement in any material respect.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to the Noteholders as follows:

4.1           Side Agreements. Except for (i) the Note Purchase and Class B Share Agreement, dated as of the date hereof (the “RCAP NPA”), between RCAP Holdings, LLC (“RCAP”) and the Company, (ii) the documents referred to therein, including the note, in the form attached to the RCAP NPA, to be issued thereunder at the Closing (the “RCAP Note”), and (iii) other agreements and documents provided to the Noteholders, true correct and complete copies of which have been made available to the Noteholders, there are no agreements, side letters or arrangements between the Company, on the one hand, and RCAP, on the other hand, with respect to the subject matter of the RCAP NPA (the “RCAP Transaction”).

ARTICLE V
TERMINATION

5.1           Termination. The obligation to consummate the Closing may be terminated and the Closing abandoned at any time prior to the Closing:

(a) By mutual written consent of Luxor Capital Partners LP and the Company; or

(b) By Luxor Capital Partners LP or the Company upon written notice given to the other party in the event that the Closing shall not have taken place on or prior to December 31, 2015; provided that no party shall have the right to terminate this Agreement pursuant to this Section 5.1(b) if such party has breached any covenant or agreement hereunder and such breach has resulted in the failure of the Closing to occur on or prior to December 31, 2015.

5.2           Effect of Termination. In the event of the termination of this Agreement as provided in Section 5.1, this Agreement shall become void and of no further force and effect, and there shall be no duties, liabilities or obligations of any kind or nature whatsoever on the part of any party hereto to the other parties based either upon this Agreement or the transactions contemplated hereby, provided that no such termination (nor any provision of this Agreement) shall relieve any party from liability for any damages for fraud or any willful and material breach of this Agreement.

ARTICLE VI

MISCELLANEOUS

6.1.          Notices. All notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing:

If to the Company:

RCS Capital Corporation
405 Park Ave, 14th floor

3

New York, NY 10022
Attention: General Counsel
Facsimile: 646-861-7743
E-mail: JTanaka@rcscapital.com

With copy (which shall not constitute notice) to:

Dechert LLP
1095 Avenue of the Americas
New York, NY 10036
Attn: Martin Nussbaum
Telephone: 212-698-3596
Facsimile: 212-698-0496
E-mail: Martin.Nussbaum@dechert.com

If to the Noteholders:

Luxor Capital Partners, LP

1114 Avenue of the Americas, 29th Floor

New York, NY 10036

Attention: Norris Nissim

Facsimile: (212) 763-8001
E-mail: legal@luxorcap.com

With copies (which shall not constitute notice) to:

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attention: Gregory Horowitz

Facsimile: (212) 715-8000

Email: ghorowitz@kramerlevin.com

Notices if (i) mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received, (ii) sent by facsimile during the recipient’s normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient’s business on the next business say) and (iii) sent by e-mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).

6.2.          Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by the Company and Luxor Capital Partners, LP or, in the case of a waiver, by each party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

6.3.          Binding Effect; Benefit; Assignment. The parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other parties, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties (whether by operation of law or otherwise) without the prior written consent of the other party or parties. No assignment by any party shall relieve such party of any of its obligations hereunder. Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

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6.4.          Governing law; Waiver of Jury Trial.

(a)          THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.

(b)          EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

6.5.          Counterparts; Delivery by Facsimile or Email. This Agreement may be executed by facsimile and in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. This Agreement, and any amendments hereto, waivers hereof or consents or notifications hereunder, to the extent signed and delivered by means of a facsimile machine or by email with facsimile, scan PDF or equivalent attachment, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

6.6.          Entire Agreement. This Agreement, and the documents and agreements referred to herein, constitutes the entire agreement of the parties and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.

6.7.          Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the end that transactions contemplated hereby are fulfilled to the greatest extent possible.

6.8.          Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. In any proceeding for specific performance, the parties will waive the defense of adequacy of a remedy at law, and the parties waive any requirement for the securing or posting of any bond in connection with the remedies referred to in this Section 6.8.

6.9.          Headings. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

6.10.         Mutual Drafting. Each party has participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties; accordingly, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

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6.11.         Further Assurances. The parties will execute and deliver, or cause to be executed and delivered, all further documents and instruments and use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations, to perform their respective obligations under this Agreement.

6.12.         Public Announcements. The initial press release concerning this Agreement shall be a press release in the form agreed by the parties hereto and thereafter the parties hereto shall consult with each other (and obtain the other party’s consent) before any party (or its affiliates) issues any press release or otherwise makes any public statements with respect to the transactions contemplated by this Agreement, except (a) as may be required by any applicable law, regulation or rule of any governmental authority, stock exchange or self-regulatory organization to which a party is subject if the party issuing such press release or other public statement has, to the extent practicable, provided the other parties with a reasonable opportunity to review and comment or (b) any press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a party in accordance with this Agreement, in each case under this clause (b) to the extent such disclosure is still accurate.

6.13.         RCAP NPA and Series D-1 Shares Agreement.  The Company shall not agree to amend or modify any provision of the RCAP NPA, or the Series D-1 Shares Agreement, dated as of November 8, 2015, between AR Capital, LLC, a Delaware limited liability company, and the Company, without the prior written consent of Luxor Capital Partners, LP.  Any such amendment or modification without such consent shall be null and void.

[Signature Page Follows]

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The parties are executing this Agreement on the date set forth in the introductory clause.

RCS Capital Corporation
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Chief Financial Officer

LUXOR CAPITAL PARTNERS, LP
By:	/s/Norris Nissim
	Name:	Norris Nissim
	Title:	General Counsel
	Luxor Capital Group, LP, Investment Manger
LUXOR CAPITAL PARTNERS OFFSHORE MASTER FUND, LP
By:	/s/Norris Nissim
	Name:	Norris Nissim
	Title:	General Counsel
	Luxor Capital Group, LP, Investment Manger
LUXOR WAVEFRONT, LP
By:	/s/Norris Nissim
	Name:	Norris Nissim
	Title:	General Counsel
	Luxor Capital Group, LP, Investment Manger
THEBES OFFSHORE MASTER FUND, LP
By:	/s/Norris Nissim
	Name:	Norris Nissim
	Title:	General Counsel
	Luxor Capital Group, LP, Investment Manger

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ANNEX A

NOTEHOLDERS

Noteholder	Principal Amount
Luxor Capital Partners, LP	$	6,080,000
Luxor Capital Partners Offshore Master Fund, LP	$	7,128,000
Luxor Wavefront, LP	$	1,477,000
Thebes Offshore Master Fund, LP	$	315,000

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EXHIBIT A

FORM OF LUXOR NOTE

[See attached]

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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED OR SOLD UNLESS REGISTERED PURSUANT TO THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.

SENIOR UNSECURED PROMISSORY NOTE

	New York, NY
$[  ]	November [  ], 2015

RCS CAPITAL CORPORATION

FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, RCS Capital Corporation, a Delaware corporation (the “Issuer”), hereby promises to pay to the order of [   ] (the “Initial Holder”), or its registered assigns the aggregate principal amount of [   ] Dollars ($[   ]), together with any accrued interest added to the principal pursuant to Section 4, to be paid in such amounts and on each payment date as set forth herein, in each case together with all accrued and unpaid interest thereon as provided herein. The indebtedness evidenced by this Note (as defined below) shall constitute senior unsecured indebtedness of the Issuer.

Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1.

“Applicable Rate” means 12% per annum.

“Bankruptcy Code” means the provisions of Title 11 of the United States Code, 11 U.S.C. § 101 et seq., as now or hereafter in effect or any successor thereto.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by Law to close.

“Credit Agreements” means (i) the First Lien Credit Agreement, dated as of April 29, 2014 (as amended by Amendment No.1 dated as of June 30, 2015 and Amendment No. 2 dated as of November 8, 2015), among the Issuer, RCAP Holdings, LLC, RCS Capital Management, LLC, the guarantors, the lenders and other parties thereto from time to time and Barclays Bank PLC, as Administrative Agent and Collateral Agent and (ii) the Second Lien Credit Agreement, dated as of April 29, 2014 (as amended by Amendment No.1 dated as of June 30, 2015 and Amendment No. 2 dated as of November 8, 2015), among the Issuer, RCAP Holdings, LLC, RCS Capital Management, LLC, the guarantors, the lenders and other parties thereto from time to time and Bank of America, N.A., as Administrative Agent and Collateral Agent.

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“Credit Facilities” means one or more debt facilities or agreements (including, without limitation, the Credit Agreements and the indenture governing the Convertible Senior Notes) or commercial paper facilities or indentures, in each case with banks or other institutional lenders providing for, or acting as initial purchasers of, revolving credit loans, term loans, notes, debentures, securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether after or upon termination or otherwise), restructured, restated or refinanced (including any agreement to extend the maturity thereof and adding additional borrowers or guarantors and including by means of sales of debt securities to institutional investors) in whole or in part from time to time and including increasing the amount of available borrowings thereunder.

“Default” means any of the events specified in Section 6 which constitutes an Event of Default or which, upon the giving of notice, the lapse of time, or both pursuant to Section 6, would, unless cured or waived, become an Event of Default.

“Default Rate” means, at any time, the Applicable Rate plus 1.0%.

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended and the rules and regulations thereunder.

“Event of Default” has the meaning set forth in Section 6.

“Exchange Transaction” has the meaning set forth in Section 3.

“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supranational bodies such as the European Union or the European Central Bank).

“Holder” means the Initial Holder and each subsequent holder of the Note registered in the Note Register.

“Initial Holder” has the meaning set forth in the introductory paragraph.

“Interest Payment Date” means February 1, May 1, August 1 and November 1 of each year beginning on February 1, 2016; provided that if any such day is not a Business Day, then the applicable Interest Payment Date shall be the immediately preceding Business Day.

“Issuer” has the meaning set forth in the introductory paragraph.

“Law” as to any Person, means any law (including common law), statute, ordinance, treaty, rule, regulation, policy or requirement of any Governmental Authority and authoritative interpretation thereon, whether now or hereafter in effect, in each case, applicable to or binding on such Person or any of its properties or to which such Person or any of its properties is subject.

“Maturity Date” means the earlier of (a) November 1, 2021 and (b) the date on which all amounts under this Note shall become due and payable pursuant to Section 7.

“New Financing” has the meaning set forth in Section 3.

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“Note” means this senior unsecured promissory note issued by the Issuer in an aggregate principal amount of [   ] ($[   ]).

“Note Register” has the meaning set forth in Section 5.1(a).

“Notice of New Financing” has the meaning set forth in Section 3.

“Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, Governmental Authority or other entity.

“PIK Note” has the meaning set forth in Section 4.7.

“Record Date” means, with respect to any Interest Payment Date, the date that is fifteen days earlier (whether or not such day is a Business Day) of the applicable Interest Payment Date.

“Securities Act” has the meaning set forth in the legend.

“Senior Lender Approvals” has the meaning set forth in Section 3.

“Specified Subsidiary” shall mean any Subsidiary that guarantees loans under the Credit Agreements or any subsequent refinancing thereof.

“Stock” shall mean all shares, options, warrants, general or limited partnership interests or other equivalents (regardless of how designated) of or in a corporation, partnership or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act).

“Stockholder Approval” has the meaning set forth in Section 3.

“Subordinated Debt and Preferred Equity Approvals” has the meaning set forth in Section 3.

“Subsidiary” shall mean, with respect to any Person, (a) any corporation of which an aggregate of more than fifty percent (50%) of the outstanding Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of fifty percent (50%) or more of such Stock whether by proxy, agreement, operation of law or otherwise, and (b) any partnership or limited liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner or may exercise the powers of a general partner.

“Taxes” has the meaning set forth in Section 9(a).

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Issuance; Payment Date; Ranking.

Issuance of this Note. This Note is a general obligation of the Issuer.

Payment Date. On the Maturity Date, the Issuer shall pay to the Holder the principal amount of this Note, together with all accrued and unpaid interest thereon and all other amounts payable under this Note, to the extent not paid prior thereto.

Ranking. This Note is a senior unsecured indebtedness of the Issuer. The payment obligations with respect to this Note shall rank pari passu in priority of payment to the Issuer’s payment obligations under the 5.00% Convertible Senior Notes due 2021 (the “Convertible Senior Notes”).

Right to Exchange this Note. In the event, on or prior to the Maturity Date, the Issuer raises capital through an issuance of any securities junior to the Credit Agreements (in a single transaction or a series of related transactions) from a third party resulting in net proceeds to the Issuer or its Subsidiaries of at least $175,000,000 (the “New Financing”), the Issuer shall promptly inform the Holder of the New Financing by written notice (the “Notice of New Financing”), which shall include a copy of the definitive documents or a summary of the principal economic terms thereof. The Issuer may elect to provide the Notice of New Financing after an agreement in principle has been reached regarding the provision of the New Financing. The Holder shall have the right, exercisable by irrevocable written notice to the Issuer within a period of five (5) Business Days after receipt of the Notice of New Financing to exchange (an “Exchange Transaction”) this Note, in whole, but not in part, valued at the outstanding principal amount of this Note, together with all accrued and unpaid interest thereon, as of the date of the consummation of the Exchange Transaction, for one or more securities having, in the aggregate, terms (including economic terms) which are substantially equivalent to the terms contained in the securities issued in the New Financing. The consummation of an Exchange Transaction shall be subject to (i) any required approvals of the senior lenders under the Credit Agreements (“Senior Lender Approvals”); (ii) any required approvals of the subordinated debt and preferred equity holders of the Issuer (“Subordinated Debt and Preferred Equity Approvals”); (iii) any required approvals of the common stockholders of the Issuer in accordance with the rules of the New York Stock Exchange (the “Stockholder Approval”); and (iv) any required regulatory approvals. The Issuer shall use commercially reasonable efforts to obtain any Senior Lender Approvals, Subordinated Debt and Preferred Equity Approvals and regulatory approvals that are required to consummate the Exchange Transaction. If the Stockholders Approval is required, the Issuer shall include, in the next proxy statement for a meeting of the Issuer’s stockholders otherwise filed by the Issuer with the Securities and Exchange Commission after the Holder’s election for an Exchange Transaction, an item on the ballot for approval of the stockholders of a proposal to approve the Exchange Transaction. The Exchange Transaction may be consummated, at the Issuer’s election, either concurrently with or as soon as practicable after the New Financing or by definitive agreement subject to the consummation of the New Financing and to the receipt of any such required approvals. Upon the consummation of the Exchange Transaction, this Note shall be deemed satisfied and discharged in full.

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Interest.

Interest. Except as otherwise provided herein, this Note shall bear interest at the Applicable Rate from the date hereof until the Maturity Date.

Interest Payment Dates; PIK Interest. Interest shall be payable quarterly in arrears on each Interest Payment Date to the Person who is the registered Holder of this Note at the close of business on the Record Date immediately preceding the applicable Interest Payment Date. Notwithstanding the foregoing, on any Interest Payment Date, at the option of the Issuer, interest may be payable in kind, by increasing the principal amount of this Note by the amount of such Interest.

Default Interest. During the continuance of an Event of Default, the Issuer shall pay to the Holder interest at the Default Rate on the outstanding principal amount of this Note and on any other amount payable by the Issuer hereunder (including accrued but unpaid interest to the extent permitted under applicable Law). Interest payable at the Default Rate shall be payable upon demand and in kind, by increasing the principal amount of this Note by the amount of such Interest.

Computation of Interest. All computations of interest shall be made on the basis of a year of 365 days (or 366 days in the case of a leap year), and the actual number of days elapsed (including the first day but excluding the last day).

Interest Rate Limitation. If at any time and for any reason whatsoever, the interest rate payable on this Note shall exceed the maximum rate of interest permitted to be charged under applicable Law, such interest rate shall be reduced automatically to the maximum rate of interest permitted to be charged under applicable Law and that portion of each sum paid attributable to that portion of such interest rate that exceeds the maximum rate of interest permitted by applicable Law shall be deemed a voluntary prepayment of principal.

Legal Holidays. In any case where any Interest Payment Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.

PIK Note. At the Holder’s request, the Issuer shall deliver one or more additional promissory notes (each, a “PIK Note”) having an aggregate principal amount equal to the accrued but unpaid interest on this Note and shall otherwise be in form and substance substantially identical to this Note, including with respect to the interest rate.  Interest on each PIK Note shall accrue from the Interest Payment Date in respect of which such additional PIK Note was issued until repayment of the principal and payment of all accrued interest in full.  In the event a PIK Note is not requested by the Holder and/or delivered by the Issuer in accordance herewith, interest shall accrue on this Note such that the aggregate interest due and payable on the Maturity Date and on each Interest Payment Date would be the same as if all PIK Notes not issued had been issued, and the principal payable on the Maturity Date with respect to this Note shall be an amount equal to the sum of the principal outstanding hereunder and the aggregate principal which would be outstanding if the PIK Notes not issued had been issued.

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Note Register; Payment Mechanics.

Note Register.

The Issuer shall cause to be kept at its principal office a register for the registration and transfer of this Note (the “Note Register”). The name and address of the Holder of this Note, any transfer of this Note, and the name and address of the transferee of this Note shall be registered in the Note Register.

The Person in whose name this Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes of this Note, and the Issuer shall not be affected by any notice to the contrary, until due presentment of such Note for registration of transfer so provided in this Section 5.1. Payment of or on account of the principal, and interest on this Note shall be made to or upon the written order of such registered holder.

The Person in whose name this Note is registered on the Note Register at the close of business on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office or agency of the Issuer maintained by the Issuer for such purposes.

Direct Payment.

On the Maturity Date, the Issuer will pay or cause to be paid all amounts payable with respect to this Note (without any presentment of this Note and without any notation of such payment being made thereon) by crediting (before 1:00 p.m., New York time), by intra-bank or Federal funds bank wire transfer in same day funds in U.S. Dollars to the Holder’s account in any bank in the United States as may be designated and specified in writing by the Holder at least two Business Days prior thereto.

Notwithstanding anything to the contrary contained in this Note, if the Maturity Date is not a Business Day, then the Issuer shall pay such amount on the next succeeding Business Day, and interest shall accrue on such amount until the date on which such amount is paid and payment of such accrued interest shall be made concurrently with the payment of such amount; provided that the Issuer may elect to pay in full (but not in part) any such amount on the last Business Day prior to the date such payment otherwise would be due, and no such additional interest shall accrue on such amount.

Lost, etc. Notes. If a mutilated Note is surrendered to the Issuer or if the Holder of this Note claims and submits an affidavit or other evidence, reasonably satisfactory to the Issuer to the effect that this Note has been lost, destroyed or wrongfully taken, the Issuer shall issue a replacement Note if the customary requirements relating to replacement securities are reasonably satisfied. If required by the Issuer, the Holder must provide an indemnity bond, or other form of indemnity, sufficient in the reasonable judgment of the Issuer to protect the Issuer from any loss which it may suffer if a Note is replaced.

Replacement Notes. All Notes issued by the Issuer shall be in form and substance identical to this Note other than the principal amount and the Holder thereof.

Events of Default. The occurrence and continuance of any of the following shall constitute an “Event of Default” hereunder:

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default in any payment of interest on this Note when due and payable, and the default continues for a period of thirty (30) days;

default in the payment of principal of this Note when due and payable on the Maturity Date, upon declaration of acceleration or otherwise;

any representation or warranty made in this Note shall prove to have been untrue in any material respect when so made and which breach materially adversely affects the ability of the Issuer to perform its obligations under this Note;

failure by the Issuer for 60 days after written notice from the Holder has been received by the Issuer to comply with any of its other covenants or agreements contained in this Note;

default by the Issuer or any Specified Subsidiary (i) under the Credit Facilities or (ii) with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of Twenty Eight Million Seven Hundred and Fifty Thousand Dollars ($28,750,000) (or its foreign currency equivalent) in the aggregate of the Issuer and/or any such Specified Subsidiary, whether such indebtedness now exists or shall hereafter be created, which default, in each case under the foregoing clauses (i) and (ii), (A) results in such indebtedness becoming or being declared due and payable or (B) constitutes a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise;

a final judgment for payment of Twenty Eight Million Seven Hundred and Fifty Thousand Dollars ($28,750,000) (or its foreign currency equivalent) or more (excluding any amounts covered by insurance) rendered against the Issueror any Specified Subsidiary, which judgment is not discharged or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced or (ii) the date on which all rights to appeal have extinguished;

the Issuer or any Specified Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other similar relief with respect to the Issuer or any such Specified Subsidiary or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Issuer or any such Specified Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or

an involuntary case or other proceeding shall be commenced against the Issuer or any Specified Subsidiary seeking liquidation, reorganization or other relief with respect to the Issuer or such Specified Subsidiary or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Issuer or such Specified Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 90 consecutive days.

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Remedies.

Acceleration of Note. If an Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6) occurs and is continuing, the Holder, by notice to the Issuer, may declare the unpaid principal of and any accrued interest on this Note to be due and payable, and immediately upon such declaration, the principal and interest shall be due and payable. If an Event of Default specified in clause (g) or (h) of Section 6 occurs, such an amount shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Holder.

Other Remedies.

If an Event of Default occurs and is continuing, the Holder may pursue any rights and remedies available under this Note and applicable law to collect the payment of principal or interest on this Note or to enforce the performance of any provision of this Note.

A delay or omission by the Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

Taxes. The Issuer shall make all payments, whether on account of principal, interest or otherwise, free of and without deduction or withholding for any present or future taxes, duties or other charges (“Taxes”), unless otherwise required by Law.

Miscellaneous.

Notices.

All notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing:

If to the Issuer:

RCS Capital Corporation
405 Park Ave, 14th floor
New York, NY 10022
Attention: General Counsel
Facsimile: 646-861-7743
E-mail: JTanaka@rcscapital.com

With copy (which shall not constitute notice) to:

Dechert LLP
1095 Avenue of the Americas
New York, NY 10036

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Attn: Martin Nussbaum
Telephone: 212-698-3596
Facsimile: 212-698-0496
E-mail: Martin.Nussbaum@dechert.com

If to the Holder which acquired this Note from the Issuer on the date hereof at the address or facsimile number set forth on Exhibit A hereto or, in the case of another Holder, at the address or facsimile number provided by such Holder to the Issuer.

With copies (which shall not constitute notice) to:

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attn: Gregory Horowitz

Facsimile: 212-715-8000

E-mail: ghorowitz@kramerlevin.com

Notices if (i) mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received, (ii) sent by facsimile during the recipient’s normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient’s business on the next Business Day) and (iii) sent by e-mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).

Successors and Assigns. This Note shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. The Holder may assign this Note in whole (but not in part); provided, that the Holder shall provide the Issuer prior notice at least three Business Days before assigning this Note.

GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUCTED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(B) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES. THE ISSUER AND THE HOLDER HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, AND IRREVOCABLY ACCEPT FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUER AND THE HOLDER IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY SUCH CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUER IN ANY OTHER JURISDICTION.

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Waiver of Jury Trial. EACH OF THE ISSUER AND THE HOLDER WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE.

Independence of Covenants. All covenants hereunder shall be given in any jurisdiction independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.

Note Solely A Corporate Obligation. No recourse for the payment of the principal of or accrued and unpaid interest on this Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer under this Note shall be had against any stockholder, employee, agent, officer, member of the Board of Directors or subsidiary, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation whether by virtue of any constitution, statue or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the issue of this Note.

Revival and Reinstatement of Obligations. If the Holder repays, refunds, restores, or returns in whole or in part, any payment or property previously paid or transferred to the Holder in full or partial satisfaction of any obligation evidenced by this Note, because the payment, transfer, or the incurrence of the obligation so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any Law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers (each, a “Voidable Transfer”), or because the Holder elects to do so on the reasonable advice of its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as to any such Voidable Transfer, or the amount thereof that the Holder elects to repay, restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys’ fees of the Holder related thereto, the liability of the Issuer with respect to the amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will exist.

Waiver of Notice. The Issuer hereby waives demand for payment, presentment for payment, protest, notice of payment, notice of dishonor, notice of nonpayment, notice of acceleration of maturity and diligence in taking any action to collect sums owing hereunder.

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Amendments and Waivers.

Written Agreement. Neither this Note nor any provision hereof, may be amended, waived or modified (including pursuant to any side letter or other arrangement or agreement that changes, expands or otherwise modifies the rights or obligations of the Issuer and/or Holder) except pursuant to an agreement in writing entered into between the Issuer and the Holder and with the prior written consent of RCAP Holdings, LLC.

Notation on or Exchange of Notes. If an amendment or waiver changes the terms of this Note, the Issuer may require the Holder to deliver this Note to the Issuer so that it may place an appropriate notation on this Note about the changed terms and return it to the Holder.

Headings. The headings of the various Sections and subsections herein are for reference only and shall not define, modify, expand or limit any of the terms or provisions hereof.

No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising on the part of the Holder, of any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

Electronic Execution. The words “execution”, “signed”, “signature”, and words of similar import in this Note shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable Law, including the Electronic Signatures in Global and National Commerce Act of 2000 (15 USC § 7001 et seq.), the Electronic Signatures and Records Act of 1999 (N.Y. State Tech. Law §§ 301-309), or any other similar state Laws based on the Uniform Electronic Transactions Act.

Severability. If any term or provision of this Note is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Note or invalidate or render unenforceable such term or provision in any other jurisdiction.

Expenses. The Issuer agrees to pay all reasonable out-of-pocket expenses incurred by the Holder in connection with the administration of this Note or in connection with any amendments, modifications or waivers of the provisions hereof or thereof or incurred by the Holder in connection with the enforcement or protection of its rights under this Note, including in connection with the New Financing, the Exchange Transaction or any other refinancing or restructuring of the credit arrangements provided under this Note in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings, including the reasonable fees, charges and disbursements of one New York counsel (and counsel in each other relevant local jurisdiction) for the Holder. The agreements in this Section 9.14 shall survive repayment of all of the indebtedness evidenced by this Note. All amounts due under this Section 9.14 shall be paid promptly following receipt by the Issuer of an invoice relating thereto setting forth such expenses in reasonable detail.

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Effectiveness of Note. This Note shall become effective at and as of the date hereof.

No Set-off, etc. The Issuer hereby waives, for the benefit of the Holder, any rights to set-offs, recoupments and counterclaims.

Representations and Warranties. The Issuer hereby represents and warrants as of the date hereof as follows:

Organization and Qualification. The Issuer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization;

Power and Authority. The Issuer is duly authorized to execute, deliver and perform its obligations under this Note. The execution, delivery and performance of this Note have been duly authorized by all necessary action, and do not (i) require any consent or approval of any equity holders of the Issuer or any Governmental Authority, other than those already obtained; (ii) contravene the organizational documents of the Issuer; or (iii) violate or cause a default under any material applicable Law or material contract to which the Company is a party or by which the Company or any of its properties is bound; and

Enforceability. This Note is a legal, valid and binding obligation of the Issuer, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally,

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

RCS CAPITAL CORPORATION
By:
	Name:
	Title:

EXHIBIT A

Address and Facsimile Number for Notice:

[   ]

EX-10.3

Exhibit 10.3

Execution Version

SERIES D-1 SHARES AGREEMENT

This SERIES D-1 SHARES AGREEMENT (this “Agreement”), dated as of November 8, 2015, is by and between AR Capital, LLC, a Delaware limited liability company (“ARC”), and RCS Capital Corporation, a Delaware corporation (the “Company”).

WHEREAS, ARC is a party to that certain Transaction Agreement, dated as of August 6, 2015, among ARC, AMH Holdings (Cayman), L.P., and AR Global, LLC (the “Transaction Agreement”), pursuant to which ARC may acquire 1,000,000 shares of 11% Series D-1 Convertible Preferred Stock, par value $0.001 per share, of the Company currently held by Apollo Principal Holdings I, LP or any of its affiliates (“Apollo”) (such shares, including to the extent acquired by ARC or any of its affiliates in whole or in part as the context requires, being referred to as the “Series D-1 Shares”); and

WHEREAS, the parties hereto desire to enter into this Agreement in respect of certain matters related to the Series D-1 Shares as provided herein.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:

ARTICLE I

VOTING AGREEMENT AND GRANT OF IRREVOCABLE PROXY

1.1.        Proxy.

(a) On the day ARC or any of its affiliates acquires the Series D-1 Shares (the “Purchase Date”), ARC shall, or shall cause its affiliates to, irrevocably grant to, and appoint, the Special Committee of the Board of Directors of the Company (the “Board”) comprised of Mark Auerbach, Doug Wood and C. Thomas McMillen (the “Committee”) (and if any member of such Committee no longer serves on such Committee for any reason, then the remaining member or members of such Committee, in each case acting by a majority, and if none of the three individuals named above serve on the Committee, the Board may then appoint such other independent director(s) to the Committee that are reasonably acceptable to ARC and Luxor Capital Partners, LP), ARC’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of ARC, to vote or cause to be voted the Series D-1 Shares (in person or by proxy), as ARC would be required to vote the Series D-1 Shares in connection with any two Series D-1 Specified Matters to the extent Series D-1 Shares are entitled to a vote on such matters pursuant to the certificate of designation authorizing the Series D-1 Shares, and to exercise all powers that ARC would be entitled to exercise on any such matters if personally present, at any annual, special or other meeting of the stockholders of the Company and at any adjournment or adjournments thereof, and to execute any written consent of stockholders on behalf of ARC in lieu of such meeting or otherwise; provided, further, that to the extent the first or the second Series D-1 Specified Matter requires one or more votes of the Company stockholders in order to effectuate an agreed, specific transaction (or any related transaction or a series of related transactions, including any amendments to the certificate of incorporation or any certificate of designation of the Company necessitated by such transactions), then such additional stockholder votes shall all be deemed to relate to one Series D-1 Specified Matter and the Committee may use the Proxy in connection with any such additional stockholder votes. The proxy set forth in this Section 1.1(a) is hereinafter referred to as the “Proxy”.

(b) “Series D-1 Specified Matters” means (i) any consolidation, merger or entry into a business combination by the Company with a third person, (ii) any authorization of a new class or series of capital stock or additional shares of capital stock, or reclassification or alteration of the terms of any class or series of capital stock, or any issuance of capital stock or other equity securities (including the right to acquire capital stock or other equity securities) by the Company, and (iii) any amendment or modification to, or waiver of, the certificate of incorporation or any certificate of designation of the Company in connection with any matters set forth in clauses (i) and (ii) above; provided, that with respect to any Series D-1 Specified Matter (and any related transactions or series of transactions relating to any Series D-1 Specified Matter or otherwise) each Series D-1 Share shall be treated in the same manner as each other preferred stock of the Company ranking on a parity with Series D-1 Shares.

(c) The Proxy shall be irrevocable, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by ARC with respect to the Series D-1 Shares. The Proxy shall be valid from the Purchase Date and until 11:59 P.M. New York time on January 31, 2016 (the “End Date”); provided that if the Company enters into a definitive agreement with respect to a Series D-1 Specified Matter prior to 11:59 P.M. New York time on January 31, 2016, the End Date shall be automatically extended until 11:59 P.M. New York time on June 30, 2016 (and, in the case of Section 5.1, on July 31, 2016), in which case such extended date shall be the “End Date” for all purposes of this Agreement. The Company hereby agrees to recognize the Proxy. ARC shall, or shall cause its affiliate to, take such further action or execute such other instrument as may be reasonably requested by the Company to effectuate the intent of the Proxy.

(d) On the Purchase Date, ARC shall, or shall cause its affiliate to, (i) execute and deliver to the Company an irrevocable proxy in the form attached hereto as Exhibit A with respect to the Series D-1 Shares and (ii) deliver to the Company the original stock certificate or certificates representing the Series D-1 Shares to enable a legend referring to this Agreement to be added to such stock certificate or certificates.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF ARC

ARC represents and warrants to the Company as follows:

4.1.        Organization; Authorization; Binding Agreement. ARC is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed and the consummation of the transactions contemplated hereby are within ARC’s organizational powers and have been duly authorized by all necessary organizational actions on the part of ARC. ARC has full power and authority to execute, deliver and perform this Agreement. This Agreement has been duly and validly executed and delivered by ARC, and constitutes a legal, valid and binding obligation of ARC enforceable against ARC in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in an action in equity or at law).

4.2.        Non-Contravention. The execution and delivery of this Agreement by ARC does not, and the performance by ARC of ARC’s obligations hereunder and the consummation by ARC of the transactions contemplated hereby will not (i) violate any law applicable to ARC, (ii) require any consent, approval, order, authorization or other action by, or filing with or notice to, any person (including any governmental entity) under, constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration under, or pursuant to, any contract, agreement, trust, commitment, order, judgment, writ, stipulation, settlement, award, decree or other instrument binding on ARC or any applicable law, or (iii) violate any provision of ARC’s organizational documents, in each case, except as would not reasonably be expected to adversely affect the ability of ARC to perform its obligations under this Agreement in any material respect.

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ARTICLE V

COVENANTS

5.1.        Restrictions. During the period commencing on the Purchase Date and ending on the End Date, ARC shall not, and shall causes its affiliates not to, directly or indirectly, (i) create or permit to exist any liens, claims, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a stockholder in respect of the Series D-1 Shares (collectively, “Encumbrances”), except as provided hereunder or pursuant to any applicable restrictions on transfer under the Securities Act of 1933, as amended (collectively, “Permitted Encumbrances”), (ii) except in accordance with Section 5.2, transfer, sell, assign, gift, hedge, pledge or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of, or enter into any derivative arrangement with respect to (collectively, “Transfer”), the Series D-1 Shares or any right or interest therein (or consent to any of the foregoing), (iii) except in accordance with Section 5.2, enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer of the Series D-1 Shares or any right or interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to the Series D-1 Shares, (v) deposit or permit the deposit of the Series D-1 Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Series D-1 Shares, (vi) knowingly take any other action that would reasonably be expected to restrict, limit or interfere with the performance of ARC’s obligations hereunder or the transactions contemplated hereby or (vii) without the prior written consent of the Committee, vote or cause to be voted the Series D-1 Shares (in person or by proxy), on any stockholder matter at any annual, special or other meeting of the stockholders of the Company and at any adjournment or adjournments thereof, or execute any written consent of stockholders in lieu of such meeting or otherwise. Any attempted Transfer of the Series D-1 Shares or any interest therein or any attempted exercise of the voting power with respect to the Series D-1 Shares in violation of this Section 5.1 or Section 5.2 shall be null and void. If any involuntary Transfer of the Series D-1 Shares shall occur (including, if applicable, a sale by ARC’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold the Series D-1 Shares subject to all of the obligations, restrictions, liabilities and rights under this Agreement.

5.2.        Permitted Transfer. As a condition to any Transfer of any Series D-1 Shares to a transferee (including any affiliate of ARC), or the transfer or assignment to any transferee (including any affiliate of ARC) of ARC’s rights to acquire any Series D-1 Shares, such transferee (and any subsequent transferee thereof) shall (i) assume in writing, in a form reasonably acceptable to the Company, all of the obligations, restrictions and liabilities of ARC under this Agreement and (ii) upon acquisition of such Series D-1 Shares, execute and deliver to the Company a proxy in the form attached hereto as Exhibit A with respect to the Series D-1 Shares Transferred to such transferee.

5.3         Adjustments. During the period commencing on the Purchase Date and ending on the End Date, in the event (a) of any stock split, stock dividend, merger, amalgamation, reorganization, recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company on, of or affecting the Series D-1 Shares or (b) that ARC shall become the beneficial owner of any additional shares of the Series D-1 Convertible Preferred Stock of the Company, then the terms of this Agreement and the Proxy shall apply to the shares of the Series D-1 Convertible Preferred Stock or similar shares of the Company held by ARC immediately following the effectiveness of the events described in clause (a) or ARC becoming the beneficial owner thereof as described in clause (b), as though, in either case, they were Series D-1 Shares hereunder.

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ARTICLE VI

MISCELLANEOUS

6.1.        Notices. All notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing:

If to the Company:

RCS Capital Corporation

405 Park Ave, 14th floor

New York, NY 10022

Attention: General Counsel

Facsimile: 646-861-7743

E-mail: JTanaka@rcscapital.com

With copy (which shall not constitute notice) to:

Dechert LLP

1095 Avenue of the Americas

New York, NY 10036

Attention: Martin Nussbaum

Telephone: 212-698-3596

Facsimile: 212-698-0496

E-mail: Martin.Nussbaum@dechert.com

If to ARC:

405 Park Avenue, 14th Floor

New York, NY 10022

Attention: Jesse C. Galloway

Facsimile: 646-861-7804

Email: jgalloway@arlcap.com

With copies (which shall not constitute notice) to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY  10017

Attention: Lee Meyerson

   Elizabeth Cooper

Facsimile: 212-455-2502

Email: lmeyerson@stblaw.com

    ecooper@stblaw.com

Notices if (i) mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received, (ii) sent by facsimile during the recipient’s normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient’s business on the next business say) and (iii) sent by e-mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).

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6.2.       Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

6.3.       Binding Effect; Benefit; Assignment. The parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other parties, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein, except that the Committee is the intended third party beneficiary of Sections 1.1 and 5.1(vii). Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties (whether by operation of law or otherwise) without the prior written consent of the other party, except to the extent that such rights, interests or obligations are assigned pursuant to an involuntary Transfer as provided in Section 5.1. No assignment by any party shall relieve such party of any of its obligations hereunder. Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

6.4.       Governing law; Waiver of Jury Trial.

(a)         THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.

(b)         EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

6.5.        Counterparts; Delivery by Facsimile or Email. This Agreement may be executed by facsimile and in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. This Agreement, and any amendments hereto, waivers hereof or consents or notifications hereunder, to the extent signed and delivered by means of a facsimile machine or by email with facsimile, scan PDF or equivalent attachment, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

6.6.        Entire Agreement. This Agreement, and the documents and agreements referred to herein, constitutes the entire agreement of the parties and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.

6.7.        Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the end that transactions contemplated hereby are fulfilled to the greatest extent possible.

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6.8.        Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, and, accordingly, that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. In any proceeding for specific performance, the parties will waive the defense of adequacy of a remedy at law, and the parties waive any requirement for the securing or posting of any bond in connection with the remedies referred to in this Section 6.8.

6.9         Headings. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

6.10.      Mutual Drafting. Each party has participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties; accordingly, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

6.11.      Further Assurances. The parties will execute and deliver, or cause to be executed and delivered, all further documents and instruments and use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations, to perform their respective obligations under this Agreement.

6.12.      No Ownership Interest. Except as otherwise provided herein, nothing contained in this Agreement shall be deemed to vest in the Committee or the Company any direct or indirect ownership or incidence of ownership of or with respect to the Series D-1 Shares, and all rights, ownership and economic benefits of and relating to the Series D-1 Shares shall remain vested in and belong to ARC or its affiliate.

6.13.      Public Announcements. The parties hereto shall consult with each other (and obtain the other party’s consent) before any party (or its affiliates) issues any press release or otherwise makes any public statements with respect to the transactions contemplated by this Agreement, except (a) as may be required by any applicable law, regulation or rule of any governmental authority, stock exchange or self-regulatory organization to which a party is subject if the party issuing such press release or other public statement has, to the extent practicable, provided the other parties with a reasonable opportunity to review and comment or (b) any press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a party in accordance with this Agreement, in each case under this clause (b) to the extent such disclosure is still accurate.

[Signature Page Follows]

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The parties are executing this Agreement on the date set forth in the introductory clause.

AR CAPITAL, LLC
By:	/s/ William M. Kahane
	Name:	William M. Kahane
	Title:	Managing Member

RCS Capital Corporation
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Chief Financial Officer

[Signature Page to the Series D-1 Shares Agreement]

EXHIBIT A

FORM OF IRREVOCABLE PROXY

[___________] (“Series D-1 Shareholder”), for consideration received, hereby irrevocably grants to, and appoints, the Special Committee of the Board of Directors (the “Board”) of RCS Capital Corporation (the “Company”) comprised of Mark Auerbach, Doug Wood and C. Thomas McMillen (the “Committee”) (and if any member of such Committee no longer serves on such Committee for any reason, then the remaining member or members of such Committee, in each case acting by a majority, and if none of the three individuals named above serve on the Committee, the Board may then appoint such other independent director(s) to the Committee that are reasonably acceptable to ARC Capital LLC, a Delaware limited liability company (“ARC”), and Luxor Capital Partners, LP, a Delaware limited partnership), Series D-1 Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of Series D-1 Shareholder, to vote or cause to be voted the shares of 11% Series D-1 Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series D-1 Shares”) (in person or by proxy), as Series D-1 Shareholder would be required to vote the Series D-1 Shares in connection with any two Series D-1 Specified Matters to the extent Series D-1 Shares are entitled to a vote on such matters pursuant to the certificate of designation authorizing the Series D-1 Shares, and to exercise all powers that Series D-1 Shareholder would be entitled to exercise on any such matters if personally present, at any annual, special or other meeting of the stockholders of the Company and at any adjournment or adjournments thereof, and to execute any written consent of stockholders on behalf of Series D-1 Shareholder in lieu of such meeting or otherwise; provided, further, that to the extent the first or the second Series D-1 Specified Matter requires one or more votes of the Company stockholders in order to effectuate an agreed, specific transaction (or any related transaction or a series of related transactions, including any amendments to the certificate of incorporation or any certificate of designation of the Company necessitated by such transactions), then such additional stockholder votes shall all be deemed to relate to one Series D-1 Specified Matter and the Committee may use this proxy in connection with any such additional stockholder votes.

“Series D-1 Specified Matters” means (i) any consolidation, merger or entry into a business combination by the Company with a third person, (ii) any authorization of a new class or series of capital stock or additional shares of capital stock, or reclassification or alteration of the terms of any class or series of capital stock, or any issuance of capital stock or other equity securities (including the right to acquire capital stock or other equity securities) by the Company, and (iii) any amendment or modification to the certificate of incorporation or any certificate of designation of the Company in connection with any matters set forth in clauses (i) and (ii) above; provided, that with respect to any Series D-1 Specified Matter (and any related transactions or series of transactions relating to any Series D-1 Specified Matter or otherwise) each Series D-1 Share shall be treated in the same manner as each other preferred stock of the Company ranking on a parity with Series D-1 Shares.

This proxy shall be irrevocable, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Series D-1 Shareholder with respect to the Series D-1 Shares. This proxy shall be valid from the date hereof and until 11:59 P.M. New York time on January 31, 2016 (the “End Date”); provided that if the Company enters into a definitive agreement with respect to a Series D-1 Specified Matter prior to 11:59 P.M. New York time on January 31, 2016, the End Date shall be automatically extended until 11:59 P.M. New York time on June 30, 2016.

This proxy is given pursuant to that certain Series D-1 Shares Agreement, dated as of November 8, 2015, between ARC and the Company.

Dated: [___]

[_____]
By:
	Name:
	Title:

EX-10.4

Exhibit 10.4

Execution Version

RELEASE

This RELEASE, dated as of November 8, 2015 (this “Agreement”), is entered into by and among (i) AR Capital, LLC (“AR Capital”), (ii) Nicholas S. Schorsch, Peter M. Budko, William M. Kahane, Edward M. Weil, Jr. and Brian S. Block (each, an “ARC Principal” and collectively, the “ARC Principals”), (iii) RCS Capital Corporation (“RCAP”) and RCS Capital Holdings, LLC (“RCS Holdings”) and (iv) Luxor Capital Partners LP (“Luxor”). Each of the foregoing are collectively referred to herein as the “Parties” and each individually as a “Party.”

RECITALS

A.           WHEREAS, on August 6, 2015 (i) AMH Holdings (Cayman), L.P. (“AMH”), AR Capital and AR Global, LLC entered into a Transaction Agreement (the “Transaction Agreement”) and (ii) AMH and each of Nicholas S. Schorsch, Peter M. Budko, William M. Kahane, Edward M. Weil, Jr. and Brian S. Block entered into a Guaranty and Support Agreement (the “Guaranty Agreement”), and the parties to the Transaction Agreement and Guaranty Agreement are terminating such agreements pursuant to a termination and release agreement entered into concurrently with this Agreement.

B.           WHEREAS, on August 6, 2015 Apollo Management Holdings, L.P., RCAP and RCS Holdings entered into a Membership Interest Purchase Agreement (the “Purchase Agreement”), and the parties to the Purchase Agreement are amending the Purchase Agreement as of the date hereof (the “Amended Purchase Agreement”).

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, the Parties hereto hereby agree as follows:

AGREEMENT

1.           Mutual Releases; Covenants Not to Sue.

(a)          AR Capital and the ARC Principals, for and on behalf of themselves and the ARC Related Parties (as defined below), do hereby unequivocally release and discharge (1) RCAP and RCS Holdings and any of their former and current subsidiaries, equity holders, directors, officers, employees, agents, affiliates, members, managers, successors or assignees or any former or current subsidiary, equity holder, director, officer, employee, agent, affiliate, member, manager, general or limited partner, successor or assignee of any of the foregoing (other than the ARC Related Parties) (collectively, the “RCAP Related Parties”) and (2) Luxor and any of its former and current subsidiaries, equity holders, directors, officers, employees, agents, affiliates, members, managers, successors or assignees or any former or current subsidiary, equity holder, director, officer, employee, agent, affiliate, member, manager, general or limited partner, successor or assignee of any of the foregoing (collectively, the “Luxor Related Parties”), from any and all past, present or future liabilities, actions, claims or damages of any kind or nature, in law, equity or otherwise, asserted or that could have been asserted, under any Applicable Law to which a Party is subject or otherwise, whether known or unknown, suspected or unsuspected, foreseen or unforeseen, anticipated or unanticipated, disclosed or undisclosed, accrued or unaccrued, apparent or not apparent, foreseen or unforeseen, matured or not matured, liquidated or not liquidated, fixed or contingent, whether or not concealed or hidden, from the beginning of time until the date of execution of this Agreement, that in any way, and to the extent, arises from or out of, are based upon, or are in connection with or relate in any way to or involve, directly or indirectly, any of the actions, transactions, occurrences, statements, representations, misrepresentations, omissions, allegations, facts, practices, events, claims or any other matters, things or causes whatsoever, or any series thereof, that were, could have been, or in the future can or might be alleged, asserted, set forth or claimed, directly or indirectly, based on: (i) the Transaction Agreement, the Guaranty Agreement and the Purchase Agreement (collectively, the “Transaction Documents”), (ii) any breach, non-performance, action or failure to act under any of the Transaction Documents, (iii) the Amended Purchase Agreement and the transactions contemplated thereby, (iv) the events leading to the termination of the Transaction Agreement and the Guaranty Agreement and the execution of the Amended Purchase Agreement, (v) any deliberations or negotiations in connection with the Transaction Documents, and (vi) any SEC filings, public filings, periodic reports, press releases, proxy statements or other statements issued, made available or filed relating, directly or indirectly, to the transactions contemplated by the Transaction Documents (collectively, the “ARC Released Claims”); provided, however, that no Party shall be released from any breach, non-performance, action or failure to act under this Agreement occurring on or after the date hereof.

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(b)          Each of RCAP and RCS Holdings, for and on behalf of itself and the RCAP Related Parties, does hereby unequivocally release and discharge (1) AR Capital, the ARC Principals and any of their former and current subsidiaries, equity holders, controlling persons, directors, officers, employees, agents, affiliates, members, managers, general or limited partners, spouses, heirs, trusts, trustees, successors, assignees, or any former or current subsidiary, equity holder, controlling person, director, officer, employee, agent, affiliate, member, manager, general or limited partner, successor or assignee of any of the foregoing (collectively, the “ARC Related Parties” and, together with the Luxor Related Parties and the RCAP Related Parties, the “Related Parties”), and (2) the Luxor Related Parties, from any and all past, present or future liabilities, actions, claims or damages of any kind or nature, in law, equity or otherwise, asserted or that could have been asserted, under any Applicable Law to which a Party is subject or otherwise, whether known or unknown, suspected or unsuspected, foreseen or unforeseen, anticipated or unanticipated, disclosed or undisclosed, accrued or unaccrued, apparent or not apparent, foreseen or unforeseen, matured or not matured, liquidated or not liquidated, fixed or contingent, whether or not concealed or hidden, from the beginning of time until the date of execution of this Agreement, that in any way, and to the extent, arises from or out of, are based upon, or are in connection with or relate in any way to or involve, directly or indirectly, any of the actions, transactions, occurrences, statements, representations, misrepresentations, omissions, allegations, facts, practices, events, claims or any other matters, things or causes whatsoever, or any series thereof, that were, could have been, or in the future can or might be alleged, asserted, set forth or claimed, directly or indirectly, based on: (i) the Transaction Documents and the transactions contemplated by the Transaction Documents, (ii) any breach, non-performance, action or failure to act under any of the Transaction Documents, (iii) the Amended Purchase Agreement and the transactions contemplated thereby, (iv) the events leading to the termination of the Transaction Agreement and the Guaranty Agreement and the execution of the Amended Purchase Agreement, (v) any deliberations or negotiations in connection with the Transaction Documents, and (vi) any SEC filings, public filings, periodic reports, press releases, proxy statements or other statements issued, made available or filed relating, directly or indirectly, to the transactions contemplated by the Transaction Documents (collectively, the “RCAP Released Claims”); provided, however, that no Party shall be released from any breach, non-performance, action or failure to act under this Agreement occurring on or after the date hereof.

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(c)          Luxor, for and on behalf of itself and the Luxor Related Parties, does hereby unequivocally release and discharge (1) the ARC Related Parties and (2) the RCAP Related Parties, from any and all past, present or future liabilities, actions, claims or damages of any kind or nature, in law, equity or otherwise, asserted or that could have been asserted, under any Applicable Law to which a Party is subject or otherwise, whether known or unknown, suspected or unsuspected, foreseen or unforeseen, anticipated or unanticipated, disclosed or undisclosed, accrued or unaccrued, apparent or not apparent, foreseen or unforeseen, matured or not matured, liquidated or not liquidated, fixed or contingent, whether or not concealed or hidden, from the beginning of time until the date of execution of this Agreement, that in any way, and to the extent, arises from or out of, are based upon, or are in connection with or relate in any way to or involve, directly or indirectly, any of the actions, transactions, occurrences, statements, representations, misrepresentations, omissions, allegations, facts, practices, events, claims or any other matters, things or causes whatsoever, or any series thereof, that were, could have been, or in the future can or might be alleged, asserted, set forth or claimed, directly or indirectly, based on: (i) the Transaction Documents and the transactions contemplated by the Transaction Documents, (ii) any breach, non-performance, action or failure to act under any of the Transaction Documents, (iii) the Amended Purchase Agreement and the transactions contemplated thereby, (iv) the events leading to the termination of the Transaction Agreement and the Guaranty Agreement and the execution of the Amended Purchase Agreement, (v) any deliberations or negotiations in connection with the Transaction Documents, and (vi) any SEC filings, public filings, periodic reports, press releases, proxy statements or other statements issued, made available or filed relating, directly or indirectly, to the transactions contemplated by the Transaction Documents (collectively, the “Luxor Released Claims” and, together with the ARC Released Claims and the RCAP Released Claims, the “Released Claims”); provided, however, that no Party shall be released from any breach, non-performance, action or failure to act under this Agreement occurring on or after the date hereof.

(d)          It is understood and agreed that, except as provided in the provisos to Section 1(a), Section 1(b) and Section 1(c), the preceding paragraphs are a full and final release covering all known as well as unknown or unanticipated debts, claims or damages of each of the Parties and their respective Related Parties relating to or arising out of the Transaction Documents. Therefore, each of the Parties expressly waives any rights it may have under any statute or common law principle under which a general release does not extend to claims which such Party does not know or suspect to exist in its favor at the time of executing the release, which if known by such Party must have affected such Party’s settlement with the other, including, without limitation, Section 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

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In connection with such waiver and relinquishment, the Parties acknowledge that they or their attorneys or agents may hereafter discover claims or facts in addition to or different from those which they now know or believe to exist with respect to the Released Claims, but that it is their intention hereby fully, finally and forever to settle and release all of the Released Claims. In furtherance of this intention, the releases herein given shall be and remain in effect as full and complete mutual releases with regard to the Released Claims notwithstanding the discovery or existence of any such additional or different claim or fact.

(e)          Each Party, on behalf of itself and its respective Related Parties, hereby covenants to each other Party and their respective Related Parties not to, with respect to any Released Claim, directly or indirectly encourage or solicit or voluntarily assist or participate in any way in the investigation, filing, reporting or prosecution by such Party or its Related Parties or any third party of a suit, arbitration, mediation, or claim against any other Party and/or its Related Parties relating to any Released Claim. The covenants contained in this Section 2 shall survive this Agreement indefinitely regardless of any statute of limitations.

(f)          From and following date hereof, each of RCAP and RCS Holdings agrees to defend, indemnify and hold harmless the ARC Related Parties (the “Indemnified Parties”) from and against any and all damages, losses, liabilities, claims, demands, suits, judgments, costs and expenses (including reasonable legal fees and expenses) incurred or suffered by the Indemnified Parties as a result of any claim made by any third party to the extent such claim relates primarily to or arises from changes to the Purchase Agreement reflected in the Amended Purchase Agreement (the “Indemnifiable Claims”) and upon request of AR Capital, RCAP shall advance reasonable expenses in connection with any defense of any Indemnifiable Claim or any action or proceeding arising therefrom. The right of the Indemnified Parties to any indemnification or advancement of expenses shall be subordinated as to payment to (and only to) both (i) the First Lien Credit Agreement (as in effect from time to time, the “First Lien Credit Agreement”) and (ii) the Second Lien Credit Agreement (as in effect from time to time, the “Second Lien Credit Agreement”), each dated as of April 29, 2014, as amended (together, the “Credit Agreements”) and notwithstanding anything to the contrary in this Agreement, RCAP shall not, and shall not permit any of its subsidiaries to, make, and none of the Indemnified Parties shall, directly or indirectly, receive, any payment with respect to such indemnification or advancement of expenses until 91 days after (A) indefeasibly paying all outstanding Term Loans and Revolving Loans and all other Obligations in full in cash and permanently reducing all Commitments (including, without limitation, the Revolving Credit Commitments) to zero (as such terms in this clause (A) are defined in the First Lien Credit Agreement) (the “Discharge of First Lien Obligations”) and (B) indefeasibly paying all outstanding Term Loans and all other Obligations in full in cash (as such terms in this clause (B) are defined in the Second Lien Credit Agreement) (the “Discharge of Second Lien Obligations”). In the event any Indemnified Party receives a payment in contravention of the preceding sentence, such Indemnified Party shall promptly pay over and deliver such payment to the Collateral Agent (as defined in the First Lien Credit Agreement) (the “First Lien Collateral Agent”), so long as the Discharge of First Lien Obligations has not occurred, and then to the Collateral Agent (as defined in the Second Lien Credit Agreement) (the “Second Lien Collateral Agent” and, together with the First Lien Collateral Agent, the “Collateral Agents”), and pending such payment over shall hold such payment in trust for the benefit of the Collateral Agents (or, after the Discharge of First Lien Obligations, the Second Lien Collateral Agent). No amendment to the provisions of this paragraph shall be effective without the consent of the Collateral Agents. The Collateral Agents and Secured Parties (as defined in the Credit Agreement) are intended third party beneficiaries of this paragraph and have relied on this paragraph.

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2.           Non-Disparagement. Each Party agrees to not, directly or indirectly, make or ratify any statement, public or private, oral or written (including concerning the Transaction Documents, the participation or involvement of the Parties in the transactions contemplated by the Transaction Documents or the Amended Purchase Agreement or the reasons for or any of the events or circumstances surrounding the termination of the transactions contemplated by the the termination of the Transaction Agreement and the Guaranty Agreement and the execution of the Amended Purchase Agreement that disparages the business reputation of the other Parties or their respective Related Parties; provided that nothing herein will (i) prevent Luxor from making (a) any public statements that Luxor has a reasonable basis for believing are true or (b) any private statements, (ii) prevent any Party from making truthful statements as may be required by Applicable Law to which a Party is subject or (iii) expand the scope of the releases contained in this Agreement.

3.          Public Announcements. The initial press release concerning this Agreement shall be a press release in the form agreed by the Parties (other than Luxor) as set forth on Annex A and thereafter the Parties shall consult with each other (and obtain the other party’s consent) before any Party (or its Affiliates) issues any press release or otherwise makes any public statements with respect to the transactions contemplated by this Agreement, except (a) as may be required by any Applicable Law to which a Party is subject if the Party issuing such press release or other public statement has, to the extent practicable, provided the other Parties (other than Luxor) with an opportunity to review and comment or (b) any press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a Party in accordance with this Agreement, in each case under this clause (b) to the extent such disclosure is still accurate; provided that no such press release shall make any reference to Luxor or any Luxor Related Parties without the Luxor’s prior written consent.

4.           Representations of the Parties.

(a)          Each Party represents and warrants to the other Parties as follows:

(i)          Such Party has the requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by such Party of this Agreement, the performance of its obligations hereunder and its consummation of the transactions contemplated hereby have been duly and validly authorized and approved by all necessary action of such Party, as applicable, and no other action on the part of such Party, is necessary to authorize the execution and delivery by such Party of this Agreement, the performance by it of its obligations hereunder and its consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Party, and, assuming the due authorization, execution and delivery by the other Parties, constitute legal and binding obligations of such Party, enforceable against such Party in accordance with its terms, except as (a) the enforceability hereof may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) the availability of equitable remedies may be limited by equitable principles of general applicability.

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(ii)         The execution and delivery by such Party of this Agreement does not, and the consummation of the transactions contemplated hereby and the performance of its obligations hereunder will not (with or without the giving of notice, the termination of any grace period or both): (a) violate, conflict with, or result in a breach or default under any provision of the organizational documents of such Party, as applicable or (b) (x) violate any Applicable Law to which a Party is subject, (y) violate, result in a violation or breach by such Party of, or cause the termination, acceleration or cancellation or the loss, impairment or alteration of any right or benefit under, or conflict with or constitute a default (or give rise to a right of termination, acceleration, cancellation or the loss, impairment or alteration of any right or benefit under, any contract to which such Party is a party or by which any of its respective properties is bound, whether with the passage of time, giving of notice, or both or (z) result in the creation of any lien on the assets or properties of such Party, except, in the cases of clauses (x), (y) and (z), for any such violation, breach, termination, acceleration, conflict, default or lien as would not, individually or in the aggregate, prohibit or materially impair the ability of such Party to consummate the transactions contemplated by this Agreement or perform its obligations hereunder on a timely basis.

(b)          AR Capital represents and warrants to Luxor that, there are no agreements, side letters or arrangements (written or oral) among AR Capital, on the one hand, and RCAP and/or AMH and/or any of their respective affiliates, on the other hand, with respect to, or in any way relating to, the termination of the Transaction Agreement and the Guaranty Agreement and the execution of the Amended Purchase Agreement that have not been disclosed (and provided in the case of written materials, if any) to Luxor.

(c)          RCAP represents and warrants to Luxor that, there are no agreements, side letters or arrangements (written or oral) among RCAP, on the one hand, and [AMH] and/or AR Capital and/or any of their respective affiliates, on the other hand, with respect to, or in any way relating to, the termination of the Transaction Agreement and the Guaranty Agreement and the execution of the Amended Purchase Agreement (and provided in the case of written materials, if any) to Luxor.

5.          Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be deemed given if delivered personally, mailed by registered or certified mail with postage prepaid and return receipt requested or sent by commercial overnight courier, courier fees prepaid (if available; otherwise, by the next best class of service available), to the parties at the following addresses:

If to AR Capital or any of the ARC Principals, addressed as follows:

405 Park Avenue, 14th Floor

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New York, NY 10022
Attn: Jesse C. Galloway

Email: jgalloway@arlcap.com

with copies (which shall not constitute notice) to:

Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention:       Lee Meyerson

                         Elizabeth Cooper

Email: lmeyerson@stblaw.com

     ecooper@stblaw.com

If to RCAP or RCS Holdings, to it at:

RCS Capital Corporation

405 Park Ave

New York, NY 10022

Attention: General Counsel
Email: JTanaka@rcscapital.com

Fax: 646-861-7743

with a copy (which shall not constitute notice) to:

Dechert LLP

1095 Avenue of the Americas
New York, NY 10036

Attn: Martin Nussbaum

Email: Martin.Nussbaum@dechert.com
Fax: (212) 698-0496

If to Luxor, to it at:

Luxor Capital Partners, LP

1114 Avenue of the Americas, 29th Floor

New York, NY 10036

Attention: Norris Nissim

Email: legal@luxorcap.com

Facsimile: (212) 763-8001

with a copy to:

with a copy (which shall not constitute notice) to:

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

7

New York, NY 10036

Attention: Gregory Horowitz

Facsimile: (212) 715-8000

Email: ghorowitz@kramerlevin.com

or to such other Person or address as any party shall specify by notice in writing to the other parties in accordance with this Section 5. All such notices or other communications shall be deemed to have been received on the date of the personal delivery, on the third Business Day after the mailing or dispatch thereof, or in the case of electronic mail or facsimile transmission, on the date received, subject to confirmation of receipt; provided that notice of change of address shall be effective only upon receipt.

6.          Entire Agreement. This Agreement constitute the entire agreement and supersede all other prior agreements and understandings, both written and oral, of the parties with respect to the subject matter hereof.

7.          Amendments and Waiver. This Agreement may not be amended except by an instrument or instruments in writing signed and delivered on behalf of each of the Parties. Any Party that is entitled to the benefits hereof may waive compliance with any of the agreements of any other Party contained herein. Any agreement on the part of a Party to any such waiver shall be valid if set forth in an instrument in writing signed and delivered on behalf of such Party. Waivers shall operate to waive only the specific matter described in the writing and shall not impair the rights of the party granting the waiver in other respects or at other times. A Party’s waiver of a breach of a provision of this Agreement, or failure (on one or more occasions) to enforce a provision of, or to exercise a right under, this Agreement, shall not constitute a waiver of a similar breach, or of such provision or right other than as explicitly waived.

8.          Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

9.          Governing Law. This Agreement shall be governed in all respects (including as to validity, interpretation and effect) by the internal laws of the State of New York, without giving effect to any conflict of laws rules or principles that would require or permit the application of another jurisdiction’s laws.

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10.         Jurisdiction of Disputes. Each party hereby irrevocably agrees that any action or proceeding arising out of any dispute in connection with this Agreement, any rights or obligations hereunder or the performance of such rights or obligations shall be brought exclusively in the courts of the State of New York located in the Borough of Manhattan or the federal courts of the United States of America located in the Southern District of New York (and appellate courts thereof) and hereby expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum. Each party hereby irrevocably consents to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail or by overnight courier service, postage prepaid, to its address set forth in Section 5.

11.         Waiver of Jury Trail. Each Party hereby waives all rights to a jury trial with respect to any action or claim arising out of any dispute in connection with this Agreement, any rights or obligations hereunder or the performance of such rights and obligations. Each Party (i) certifies that no representative, agent or attorney of any Party has represented, expressly or otherwise, that such Party would not, in the event of litigation, seek to enforce the foregoing waivers and (ii) acknowledges that the other Parties have been induced to enter into this Agreement and the transactions contemplated hereby by, among other things, the waivers and certifications contained herein.

12.         No Assignment; Binding Effect. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party hereto without the prior written consent of the other Parties hereto and any attempt to do so shall be void, except for assignments and transfers by operation of any laws. Subject to the preceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.

13.         Third-Party Beneficiaries. Each Party acknowledges and agrees that the ARC Related Parties, the Luxor Related Parties and the RCAP Related Parties are express third-party beneficiaries of the releases of such Related Parties and covenants not to sue such Related Parties contained in Section 3 of this Agreement and are entitled to enforce rights under such section to the same extent that such Related Parties could enforce such rights if they were a party to this Agreement. Except as provided in the preceding sentence, there are no third-party beneficiaries to this Agreement.

14.         Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.

15.         Specific Performance. The Parties agree that if any of the provisions of this Agreement were not performed by the Parties in accordance with their specific terms or were otherwise breached thereby, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that each Party will be entitled to specific performance to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which it may be entitled at law or in equity.

16.         Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

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17.          AmEx Guarantee. Nicholas S. Schorsch has terminated use by the Company, its subsidiaries and their respective officers, directors and employees under the AmEx Contract and the Company shall indemnify and hold Nicholas S. Schorsch harmless from and against any such obligations arising out of any such use.

18.          Certain Defined Terms. For the purposes of this Agreement:

(a)          “AmEx Contract means the agreement and guaranty, dated November 25, 2013, by and between Nicholas Schorsch and American Express.

(b)          “Applicable Law” means any domestic or foreign federal, state or local statute, law (whether statutory or common law), ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, policy, guidelines or other requirement of any Governmental Authority.

(c)          “Governmental Authority” means any United States or foreign government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including the Securities and Exchange Commission, Commodity Futures Trading Commission or any other authority, agency, department, board, commission or instrumentality of the United States, any State of the United States or any political subdivision thereof or any foreign jurisdiction, and any court, tribunal or arbitrator(s) of competent jurisdiction, and any United States or foreign governmental or non-governmental self-regulatory organization, agency or authority, including Financial Industry Regulatory Authority and the New York Stock Exchange.

[signature page follows]

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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.

RCS Capital Corporation
By:	/s/ Brian D. Jones
	Name:  Brian D. Jones
	Title:  Chief Financial Officer
RCS Capital Holdings, LLC
By:	/s/ Brian D. Jones
	Name:  Brian D. Jones
	Title:  Chief Financial Officer
Luxor Capital Partners LP
By:	/s/ Norris Nissim
	Name:  Norris Nissim
	Title:  General Counsel
	Luxor Capital Group, LP, Investment Manager
AR Capital, LLC
By:	/s/ William M. Kahane
	Name:  William M. Kahane
	Title:  Managing Member
By:	/s/ Nicholas S. Schorsch
	Nicholas S. Schorsch
By:	/s/ Peter M. Budko
	Peter M. Budko
By:	/s/ William M. Kahane
	William M. Kahane

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By:	/s/ Edward M. Weil, Jr.
	Edward M. Weil, Jr.
By:	/s/ Brian S. Block
	Brian S. Block

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EX-10.5

Exhibit 10.5

Execution Version

AMENDMENT No. 2, dated as of November 8, 2015 (this “Amendment”), to the First Lien Credit Agreement, dated as of April 29, 2014 (as amended by Amendment No. 1 dated as of June 30, 2015 and as further amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among RCS Capital Corporation, a Delaware corporation (the “Borrower”), RCAP Holdings, LLC, a Delaware limited liability company (“RCAP Holdings”), RCS Capital Management, LLC, a Delaware limited liability company (“RCS Management”), the Subsidiary Guarantors, the lenders and other parties thereto from time to time party thereto and Barclays Bank PLC, as Administrative Agent and Collateral Agent.

A. The Borrower has requested that the Required Lenders amend the Credit Agreement as set forth below.

B. Pursuant to Section 9.08 of the Credit Agreement, the Borrower and the Lenders may amend the Credit Agreement with the acknowledgement of the Administrative Agent.

C. Capitalized terms used but not defined herein have the meanings assigned to them in the Credit Agreement.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

ARTICLE I

Amendment No. 2 Effective Date Amendments

(a) The definition of Eligible Assignee in Section 1.01 of the Credit Agreement is hereby amended and restated as follows:

““Eligible Assignee” shall mean any Person (other than a natural Person) that is (a) in the case of Term Loans, (i) a Lender, (ii) an Affiliate of a Lender, (iii) a Related Fund of a Lender and (iv) any other Person (other than a natural person) approved by the Administrative Agent and the Borrower in accordance with Section 9.04(b) (each such approval not to be unreasonably withheld, conditioned or delayed) and (b) in the case of any assignment of a Revolving Credit Commitment, (i) a Revolving Credit Lender, (ii) an Affiliate of a Revolving Credit Lender and (iii) any other Person (other than a natural person) approved by the Administrative Agent and the Borrower in accordance with Section 9.04(b) (each such approval not to be unreasonably withheld, conditioned or delayed); provided that no Person may be an Eligible Assignee of any Revolving Credit Commitment unless such Person shall be approved by the Issuing Bank and the Swing Line Lender (such approval not to be unreasonably withheld, conditioned or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include any RCS Company or any Affiliate of an RCS Company (in each case other than the Borrower and, in the case of the Borrower, solely in connection with transactions permitted pursuant to Section 2.25 and Section 9.04(l)) or any Restricted Party.”

(b) The definition of Junior Debt in Section 1.01 of the Credit Agreement is hereby amended and restated as follows:

““Junior Debt” shall mean (a) Subordinated Indebtedness, (b) the Senior Notes and any additional Indebtedness incurred pursuant to Section 6.01(y), (c) any Indebtedness (including, without limitation, Second Lien Loans and other obligations secured by Liens granted pursuant to Section 6.02(z)) that is secured by a Lien on any Collateral that ranks junior to the Lien on such Collateral securing the Obligations and (d) Indebtedness incurred (but not assumed) pursuant to Section 6.01(m) or (u) (or any Indebtedness incurred pursuant to Section 6.01(l) that was originally incurred pursuant to Section 6.01(m) or (u) or any refinancing pursuant to 6.01(l) of any such Indebtedness).”

(c) Section 1.01 of the Credit Agreement is amended by adding the following definitions to such Section in the appropriate alphabetical order:

(i) “Amendment No. 2” means Amendment No. 2 to this Agreement, dated as of November 8, 2015.

(ii) “Amendment No. 2 Effective Date” has the meaning assigned to such term in Amendment No. 2.

(iii) “Designated Entities” means Realty Capital Securities, LLC, Strategic Capital Management Holdings, LLC and American National Stock Transfer, LLC.

(iv) “Funding Effective Date” means the date on which the Borrower shall have (A) applied an aggregate principal amount of not less than $112,500,000 (of which no less than $87,500,000 shall be applied to the Term Loans) to the prepayment of the then outstanding principal amounts of the Term Loans and the Revolving Loans as a result of either (i) mandatory prepayments pursuant to Section 2.13(b) of the Credit Agreement from the Net Cash Proceeds of Asset Sales made on or after the Amendment No. 2 Effective Date in each case permitted pursuant to Section 6.04(b), or (ii) voluntary prepayments made pursuant to Section 2.12(a) of the Credit Agreement, excluding, in the case of each of the foregoing (i) and (ii), any proceeds from any Specified Asset Sales or the Senior Notes and (B) the Revolving Loans shall have been repaid in full and in cash, subject to reborrowing upon satisfaction of the conditions set forth in Section 4.01 of this Agreement, and the Revolving Credit Commitments shall have been permanently reduced, by at least $4,167,000.

(v) “Independent Board Approval” means approval by the board of directors (which approval must include all of the members of the board of directors that were nominated or appointed by the Third Party Funding Source and no fewer than at least one director nominated or appointed by the Third Party Funding Source) of Borrower in good faith with any representative (including any board nominee) of a Restricted Party (other than the Third Party Funding Source) and any representative (including any board nominee) of any group in which a Restricted Party (other than the Third Party Funding Source) is a member abstaining from such approval process.

(vi) “Membership Interest Purchase Agreement” means that certain Amended and Restated Membership Interest Purchase Agreement, dated as of November 8, 2015, among Apollo Management Holdings, L.P., the Borrower and RCAP Holdings, as in effect on November 8, 2015.

(vii) “Note Purchase and Class B Share Agreement” means that certain Note Purchase and Class B Share Agreement dated as of November 8, 2015, between the Borrower and RCAP Holdings, LLC as in effect on November 8, 2015.

(viii) “Restricted Parties” means (i) Apollo Global Asset Management, LLC and its Affiliates, portfolio companies and funds controlled by it or its Affiliates, (ii) from and after the date on which any Designated Entity is not directly or indirectly wholly owned by the Borrower, such Designated Entity and its Affiliates and (iii) Luxor Capital Group, L.P. and any holder of any class of outstanding preferred Equity Interests of any RCS Company (other than Redwood Capital Management, LLC, Nokota Capital Master Fund LP or any of their respective Affiliates or any funds Controlled by or managed by either of them or their respective Affiliates) and their respective Affiliates, portfolio companies or any funds Controlled by any of them or any of their respective Affiliates; provided, that the foregoing clause (iii) shall not apply to (a) a Lender that becomes a holder of any class of outstanding preferred Equity Interests of any RCS Company after the Amendment No. 2 Effective Date, (b) any Person to the extent such Person no longer has a representative on the board of directors of Borrower and no longer holds or has any right or option to acquire Equity Interests of any RCS Company or any of the respective Subsidiaries of the RCS Companies or (c) any RCS Company and its Subsidiaries.

(ix) “Senior Notes” means the senior unsecured notes contemplated to be issued pursuant to the terms of the Senior Notes Agreements as in effect on November 8, 2015.

(x) “Senior Notes Agreements” means, collectively, (A) the Note Purchase and Class B Share Agreement and (B) the Note Purchase Agreement, dated as of November 8, 2015, between the Borrower and the applicable Senior Notes Investors, in each case, as in effect on November 8, 2015, pursuant to which the Borrower has agreed to issue the Senior Notes to the Senior Notes Investors.

(xi) “Senior Notes Investors” means the purchasers of the Senior Notes pursuant to the Senior Notes Agreements.

(xii) “Specified Asset Sales” means the sale of all or substantially all of the assets, Equity Interests or business of any Specified Entity.

(xiii) “Specified Entities” means Hatteras Funds, LLC, Docupace Technologies, LLC and DirectVest LLC.

(xiv) “Third Party Funding Event” means the repayment of the Loans in accordance with the definition of “Funding Effective Date”, in whole or in part, from (i) the proceeds of the issuance of Equity Interests of the Borrower to a Third Party Funding Source on the Funding Effective Date or (ii) the proceeds of Subordinated Indebtedness provided to the Borrower by the Third Party Funding Source on the Funding Effective Date.

(xv) “Third Party Funding Source” means in respect of a Third Party Funding Event, (i) a purchaser (that, prior to becoming a purchaser, was not an RCS Company, an Affiliate of an RCS Company or a Restricted Party) of Equity Interests of the Borrower on the Funding Effective Date or (ii) a lender (that, prior to becoming a lender, was not an RCS Company, an Affiliate of an RCS Company or a Restricted Party) of Subordinated Indebtedness to the Borrower on the Funding Effective Date; provided, for solely for the purposes of this definition, a Restricted Party shall not include Luxor Capital Group, L.P. and its Affiliates or any funds Controlled by any of them or any of their respective Affiliates.

(d) A new Section 3.30 shall be added to the end of Article III of the Credit Agreement that shall read as follows:

“SECTION 3.30 Specified Asset Sales; Certain Agreements. In the 60 days prior to the Amendment No. 2 Effective Date, no Company has made any Investment in, made any Restricted Payments to, disposed of, sold, leased or otherwise transferred any assets to, or merged, consolidated or amalgamated with any Specified Entity; other than as a result of a transaction that (i) was in the ordinary course of business consistent with past practices or (ii) is set forth on Schedule 1. There is no written agreement between the Borrower or any of its Subsidiaries and any Restricted Party that relates to any Designated Entity, other than agreements entered into in the ordinary course of business and agreements regarding the sale referred to in Section 6.14(b)(viii).”

(e) The paragraph following Section 5.04(a) of the Credit Agreement is hereby amended by replacing such paragraph in its entirety with the following:

“Such financial statements shall be audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to the scope of such audit or as to the status of the Borrower and its Subsidiaries as a going concern (other than with respect to the fiscal year ending December 31, 2015) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as otherwise disclosed therein) applied;”

(f) A new Section 5.16 and a new Section 5.17 shall be added to the end of Article V of the Credit Agreement that shall read as follows:

“SECTION 5.16 Financial Advisor for the Secured Parties. The Loan Parties acknowledge and agree that the Required Lenders may, for the benefit of the Administrative Agent, the Lenders and the other Secured Parties, at any time and from time to time at the sole expense of the Loan Parties (payable upon demand by the Administrative Agent or the Required Lenders but not to exceed $150,000 per month, plus the reasonable expenses of such financial advisor), retain a financial advisor (the “Secured Party Financial Advisor”) until the Funding Effective Date to perform such services and duties with respect to the Borrower and the other Loan Parties, and their financial condition, assets, liabilities, operations and/or businesses, as determined by the Administrative Agent in its sole discretion or the Required Lenders in their sole discretion. The Borrower and the other Loan Parties agree to cooperate fully with the Secured Party Financial Advisor and the Administrative Agent’s and the Lenders’ personnel and representatives with respect to, among other things, any reasonable request for information by the Secured Party Financial Advisor or such personnel and representatives including, without limitation, to (i) participate fully in, and cause its Financial Advisor to participate fully in, calls with the Secured Party Financial Advisor, the Administrative Agent and/or the Lenders at such times and with such frequency as reasonably requested by the Administrative Agent or the Required Lenders and (ii) provide, and cause its Financial Advisor to provide, such other reports and information (financial or otherwise) as the Administrative Agent, the Required Lenders or the Secured Party Financial Advisor may request from time to time in connection with any Collateral or any Loan Party’s or Subsidiary’s financial condition, assets, liabilities, operations, businesses, upcoming transactions or financing activities or transactions with Restricted Parties or Affiliates. The Loan Parties acknowledge and agree that (i) the Secured Party Financial Advisor shall be deemed to be an “Indemnitee” as that term is used and defined in the Credit Agreement and (ii) notwithstanding anything in this Agreement to the contrary, the fees, costs and expenses of the Secured Party Financial Advisor shall constitute “Obligations” under the Credit Agreement secured by the Collateral under the Security Documents.

SECTION 5.17 Chief Restructuring Officer. Within 14 days after the Amendment No. 2 Effective Date, the Borrower shall appoint a chief restructuring officer reasonably satisfactory to the Administrative Agent and the Required Lenders, having authority reasonably satisfactory to the Administrative Agent and the Required Lenders and reporting directly to the board of directors of the Borrower.”

(g) Section 6.01 of the Credit Agreement is hereby amended by deleting “and” at the end of clause (v), replacing the “.” at the end of clause (w) with “;” and adding the following clause (x) and clause (y)”:

“(x) Subordinated Indebtedness of the Borrower; provided (i) such Subordinated Indebtedness shall at all times be unsecured, (ii) shall only be guaranteed by a Company that is a Guarantor of the Obligations; provided that, if such Guarantor is released from its obligations under the Guarantee Agreement, then the terms of such Subordinated Indebtedness shall expressly provide that such Guarantor shall be automatically released from its guaranty obligations with respect to such Subordinated Indebtedness, (ii) the terms of such Subordinated Indebtedness will not provide for payments of principal or interest in cash prior to the 91^st day after payment in full of the Obligations, (iii) such Indebtedness will have a maturity date on or after the 91^st day after the Term Loan Maturity Date (as in effect on the date hereof) and (iv) the such Subordinated Indebtedness shall be subordinated pursuant to a subordination agreement that is reasonably acceptable to the Required Lenders; and

(y) (i) the Senior Notes; provided (A) the Senior Notes shall at all times be unsecured, (B)the Senior Notes shall only be obligations of the Borrower and shall not be Guaranteed by any Person, (C) the terms of the Senior Notes will not require payments of principal or interest in cash prior to the 91^st day after payment in full of the Obligations, and (D) the Senior Notes will have a maturity date on or after the 91st day after the Term Loan Maturity Date (as in effect on the date hereof) and (ii) additional Indebtedness that has the same terms as the Senior Notes and meets the requirements of the foregoing clauses (A) through (D); provided further that (I) not more than $75,000,000 of Indebtedness may be incurred in reliance on this clause (y) (excluding amounts incurred as payment in kind of interest) and (II) the Borrower will not make payments of principal or interest on the Senior Notes or any Indebtedness incurred in reliance on the foregoing clause (y) in cash prior to the 91st day after payment in full of the Obligations except as provided in Section 6.06(b)(vi).”

(h) Section 6.03(y) of the Credit Agreement is hereby amended by replacing such Section 6.03(y) in its entirety with the following:

“(y) Investments in the form of ordinary course loans to Financial Advisors affiliated with the Borrower (other than loans to Affiliates (that are not Companies) or their respective representatives) consistent with past practice in an aggregate amount for such loans not to exceed $25,000,000 in any fiscal year; and”

(i) Section 6.04(b)(i) of the Credit Agreement is hereby amended by adding the following proviso immediately at the end thereto:

“; provided, that, the Companies may effect a Specified Asset Sale without regard to the foregoing limitations so long as (A) at the time of such Specified Asset Sale and after giving effect to such Specified Asset Sale, no Default or Event of Default shall have occurred and be continuing, (B) the representations and warranties in Section 3.30 are true and correct at the time of such Specified Asset Sale, (C) the Net Cash Proceeds of each such Specified Asset Sale shall be immediately applied on the date of receipt thereof to prepay the Loans as required by Section 2.13(b), and (D) any non cash proceeds received in the form of Indebtedness or capital stock are pledged to the Collateral Agent to the extent required under Section 5.10.”

(j) Section 6.04(b) of the Credit Agreement is hereby amended by amending and restating the paragraph the last paragraph of such section as follows:

“Notwithstanding the foregoing, the Borrower shall not, and shall not permit any of its Subsidiaries to, sell, transfer or otherwise dispose of Cetera Financial Holdings, Inc., Cetera Financial Group, Inc. or any of their respective Subsidiaries (or all or substantially all of the assets of Cetera Financial Holdings, Inc., Cetera Financial Group, Inc. or any of their respective Subsidiaries) without first (or simultaneously) indefeasibly paying all outstanding Term Loans and Revolving Loans and all other Obligations in full in cash and permanently reducing all Commitments (including, without limitation, the Revolving Credit Commitments) to zero.”

(k) Section 6.05(a) of the Credit Agreement is hereby amended by deleting “and” at the end of clause (xii), replacing the “.” at the end of clause (xiii) with “; and” and adding the following clause (xiv)”:

“(xiv) the Borrower may make Restricted Payments in an amount of $1 or less to effect the purchase by the Borrower of the Class B common Equity Interests in the Borrower held by RCAP Holdings pursuant to the terms of the Note Purchase and Class B Share Agreement.”

(l) Section 6.06(b) of the Credit Agreement is hereby amended by deleting “and” at the end of clause (iv), replacing the “.” at the end of clause (v) with “; and” and adding the following clause (vi)”:

“(vi) the Borrower may make payments in an amount necessary to purchase, redeem, retire, defease, acquire, cancel or terminate the Senior Note in the original principal amount of $12,000,000 owed to RCAP Holdings, plus any accrued and outstanding interest thereon; provided, that (A) the Funding Effective Date has occurred or will occur substantially simultaneously with such payment and (B) immediately after giving effect to such payment, no Default or Event of Default shall have occurred and be continuing.”

(m) Section 6.07(a) of the Credit Agreement is hereby amended by adding the following sentence after the table set forth therein:

“Notwithstanding the foregoing, the Fixed Charge Coverage Ratio will not be tested for the Test Period ending as of September 30, 2015.”

(n) Section 6.07(b) of the Credit Agreement is hereby amended by adding the following sentence after the table set forth therein:

“Notwithstanding the foregoing, the Secured Leverage Ratio will not be tested for the Test Period ending as of September 30, 2015.”

(o) A new Section 6.12 shall be added to the end of Article VI of the Credit Agreement that shall read as follows:

“SECTION 6.12 Senior Notes. Amend, modify, waive, terminate or grant any consent to any provision of the Senior Notes Agreements or any of the terms or conditions of the Senior Notes set forth therein in any manner adverse to the interests of the Lenders.”

(p) A new Section 6.13 shall be added to the end of Article VI of the Credit Agreement that shall read as follows:

“SECTION 6.13 Specified Asset Sales. On or after the Amendment No. 2 Effective Date, no Company shall make any Investment in, make any Restricted Payments to, dispose of, sell, lease or otherwise transfer any assets (including Equity Interests) to, or merge, consolidate or amalgamate with, any of the Specified Entities; other than as a result of transactions that are (i) in the ordinary course of business consistent with past practices or (ii) in accordance with binding contractual arrangements in writing that were in existence and effective as of September 30, 2015 ((x) without giving effect to any amendment, waiver, modification or supplement to such agreements after September 30, 2015 and (y) excluding any agreement that is not effective on, and any transaction that has not been consummated by, September 30, 2015 but contemplated by such contractual agreements to be entered into or consummated on a future date).”

(q) A new Section 6.14 shall be added to the end of Article VI of the Credit Agreement that shall read as follows:

“SECTION 6.14 Transactions with Restricted Parties. (a) Enter into any Asset Sales in contravention of Section 6.04(b) or enter into any management or other services agreements involving cash payments or consideration for the benefit of a Restricted Party.

(b) Enter into any transactions with or for the benefit of any Restricted Party other than:

(i) transactions that were entered into when such Person was not a Restricted Party (whether before or after the Amendment No. 2 Effective Date);

(ii) transactions with Luxor Capital Group, L.P. and its Affiliates or any funds Controlled by any of them or any of their respective Affiliates pursuant to which such Person is a purchaser of the Senior Notes and additional Indebtedness that has the same terms as the Senior Notes or additional Equity Interests of the Borrower;

(iii) transactions that are (A) on terms that are substantially as favorable to such Company as it would obtain in comparable arm’s length transactions with a Person that is not a Restricted Party or Affiliate and (B) consummated pursuant to binding contractual agreements in writing that were in existence and effective as of September 30, 2015 ((x) without giving effect to any amendment, waiver, modification or supplement to such agreements after September 30, 2015 and (y) excluding any agreement that is not effective on, and any transaction that has not been consummated by, September 30, 2015 but contemplated by such contractual agreements to be entered into or consummated on a future date);

(iv) after the occurrence of the Third Party Funding Event, transactions that (A) are on terms that are substantially as favorable to such Company as it would obtain in comparable arm’s length transactions with a Person that is not a Restricted Party or Affiliate and (B) have received Independent Board Approval;

(v) transactions pursuant to the Services Agreement among Realty Capital Services, LLC, RCS Advisory Services, LLC, American National Stock Transfer, LLC, American Realty Capital Advisors, LLC and AR Advisory Services, LLC, dated as of June 4, 2013, and any modification, amendment, supplement or amendment and restatement of such agreement; provided any such modification, amendment, supplement or amendment and restatement is not adverse to the Lenders; provided further that total consideration paid with respect to such Services Agreement shall not exceed $7,500,000 in any fiscal year;

(vi) transactions whereby Borrower or its Subsidiaries perform transaction management and related services and the distribution of investment products pursuant to ordinary course services agreements between a Loan Party and any Restricted Party’s portfolio companies or funds or any of their respective Affiliates (including, but not limited to, dealer-manager agreements, transfer agent services agreements, investor relations services agreements, investment banking services agreements and engagement letters and listing and proxy services agreements), in each case consistent with past practice and approved by the affirmative vote of a majority of the independent directors (or similar governing body) of such portfolio company or fund; provided that the terms of such transactions are no less favorable to the Borrower or such Subsidiary as the Borrower or such Subsidiary would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower or a Restricted Party;

(vii) the sublease contemplated by Section 8.16 of the Note Purchase and Class B Share Agreement; provided that the amounts payable by the Borrower and its Subsidiaries under such sublease agreement shall not exceed $100,000 per month, excluding reimbursement of expenses on customary terms;

(viii) the sale by the Borrower and the Borrower’s wholly-owned subsidiary, RCS Capital Holdings, LLC (“RCS Holdings”), to Apollo Management Holdings, LP, of 100% of the Equity Interests of Realty Capital Securities, LLC (“RCS”) and Strategic Capital Management Holdings, LLC (“StratCap”), and the other transactions and agreements contemplated by the Membership Interest Purchase Agreement, for an aggregate consideration of $6,000,000, subject to working capital and other adjustments (the “MIPA Purchase Price”), which sale shall be consummated, in the case of RCS, no later than January 2016 and, in the case of StratCap, upon the satisfaction of applicable conditions; provided that the consideration provided by the Borrower and its Subsidiaries under such transactions shall be only (a) the Equity Interests in RCS and StratCap and (b) other consideration in excess of the MIPA Purchase Price the fair market value of which shall not exceed in any fiscal year of the Borrower and its Subsidiaries the sum of the consideration received therefor by the Borrower and its Subsidiaries and $5,000,000; and

(ix) the indemnity provided in that certain Release, dated as of November 8, 2015, by and among AR Capital, LLC, Nicholas S. Schorsch, Peter M. Budko, William M. Kahane, Edward M. Weil, Jr. and Brian S. Block, the Borrower, RCS Holdings and Luxor Capital Partners LP, as in effect on the date hereof (the “Release”) in favor of the ARC Related Parties (as defined in the Release) by the Borrower and RCS Holdings.”

(r) Section 7.01(f) is hereby amended and restated as follows:

“(f) (i) any Company shall default in the payment of any principal or interest due in respect of any of the Senior Notes or any other Indebtedness incurred in reliance on Section 6.01(y) (collectively, “Specified Debt”) or any Material Indebtedness, in each case beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) any other event or condition occurs, in either case that results in any Specified Debt or any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holders of any Specified Debt or any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply to (x) with respect to Indebtedness consisting of any Hedging Agreements, termination events or equivalent events pursuant to the terms of such Hedging Agreements and (y) secured Indebtedness that becomes due solely as a result of the sale, transfer or other disposition of the property or assets securing such indebtedness; provided further that this clause (f) shall not apply to any redemption, conversion or settlement of any such Indebtedness that is convertible into Qualified Capital Stock of Borrower or RCAP Holdings (and cash in lieu of fractional shares or units) and/or cash (in lieu of such Qualified Capital Stock of Borrower or RCAP Holdings) pursuant to its terms unless such redemption, conversion or settlement results from a default thereunder;”

(s) A new Section 7.01(o) shall be added to the end of Article VII of the Credit Agreement that shall read as follows:

“(o) an Affiliate of a Company or a Restricted Party becomes a Lender under the Credit Agreement or a Lender (as such term is defined in the Second Lien Credit Agreement) under the Second Lien Credit Agreement.”

(t) Section 9.05(a) of the Credit Agreement is hereby amended by inserting a new sentence at the end of such section reading as follows:

“In addition, the Borrower agrees to pay all reasonable out of pocket fees and expenses of Jones Day, as counsel to certain of the Lenders, relating to the Loan Documents (A) to the extent required under Amendment No. 2 to be paid on the Amendment No. 2 Effective Date and (B) to the extent incurred from and after the Amendment No. 2 Effective Date and on or prior to the Funding Effective Date, or relating to the occurrence of the Funding Effective Date.”

ARTICLE II

Representations and Warranties

The Loan Parties represent and warrant, as of the Amendment No. 2 Effective Date, to the Administrative Agent and the Lenders that:

A. This Amendment has been duly executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity and an implied covenant of good faith and fair dealing. Each Senior Notes Agreement has been duly executed and delivered by the Borrower and, to the knowledge of the Borrower, the Senior Notes Investors party thereto and constitutes a legal, valid and binding obligation of the Borrower and, to the knowledge of the Borrower, the Senior Notes Investors party thereto, enforceable against the Borrower and, to the knowledge of the Borrower, the Senior Notes Investors party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity and an implied covenant of good faith and fair dealing.

B. Upon the effectiveness of this Amendment, the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (and in all respects with respect to representations qualified by materiality) on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects (and in all respects with respect to representations qualified by materiality) as of such earlier date).

C. No Affiliate of an RCS Company is a Lender under the Credit Agreement or a Lender (as such term is defined in the Second Lien Credit Agreement) under the Second Lien Credit Agreement.

D. In the 60 days prior to the Amendment No. 2 Effective Date, no Company has made any Investment in, made any Restricted Payments to, disposed of, sold, leased or otherwise transferred any assets to, or merged, consolidated or amalgamated with any of the Specified Entities; other than as a result of a transaction that was in the ordinary course of business consistent with past practices or in accordance with binding contractual arrangements that were in existence and effective at the time of such transaction.

E. Upon the effectiveness of this Amendment, no Default or Event of Default has occurred and is continuing.

F. No Loan Party or any of their respective representatives or advisors has provided material non public information to the Lenders party hereto other than pursuant to the terms of Section 9.16 of the Credit Agreement and the letter agreements entered into with individual Lenders, which shall, pursuant to the terms of such letter agreements, as amended hereby and agreed by the Lenders, be publicly disclosed as of November 16, 2015.

G. As of the date of this Amendment, there are no side letters or other agreements with respect to the Senior Notes other than the Senior Notes and the Senior Notes Agreements that has not been disclosed to Lenders’ counsel.

H. None of the Persons listed on any annex attached to that certain letter agreement related to employees of the Borrower, dated November 8, 2015, by the Borrower and accepted and agreed to by ARC Capital, LLC, have at any time in the past twelve months performed any services or functions on behalf of or related to Cetera Financial Holdings, Inc., Cetera Financial Group, Inc. or any of their respective Subsidiaries (collectively, the “Covered Companies”) except those employees listed on Schedule 2 who are employees of Companies other than the Covered Companies and perform activities for the Covered Companies that are incidental to their responsibilities at Companies other than the Covered Companies.

ARTICLE III

Conditions to Amendment No. 2 Effectiveness

This Amendment shall become effective on the date (the “Amendment No 2. Effective Date”) on which each of the following conditions is satisfied or waived:

A. The Administrative Agent (or its counsel) shall have received an executed counterpart of this Amendment from (i) the Required Lenders and the Administrative Agent no later than 5:00 p.m. (New York time) on 8, 2015 (such date and time, the “Consent Deadline”), and (ii) the Loan Parties.

B. The Loan Parties shall have paid (i) all fees and reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the Loan Documents, including, without limitation, the preparation, execution and delivery of this Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent, Cahill Gordon & Reindel LLP and Shearman & Sterling LLP, with respect thereto (provided, that in no event shall the Loan Parties be responsible for any such fees, costs or expenses of Cahill, Gordon & Reindel LLP incurred after November 5, 2015)), and (ii) all fees and reasonable out-of-pocket costs and expenses of a single counsel for the Required Lenders in connection with the Loan Documents, including, without limitation, the preparation, execution and delivery of this Amendment.

C. The representations and warranties in Article II hereto shall be true and correct as of the Amendment No. 2 Effective Date.

D. Amendment No. 2 to the Second Lien Credit Agreement, in the form attached hereto as Exhibit B, shall simultaneously become effective.

E. The Borrower shall have received (i) fully executed copies of the Senior Note Agreements (as defined in Article I of this Amendment), in form and substance satisfactory to the Administrative Agent and the Required Lenders and such Senior Notes Agreements shall be in full force and effect and (ii) net cash proceeds in an aggregate amount not less than $27,000,000 from the issuance of Senior Notes (as defined in Article I of this Amendment) pursuant to the terms of the Senior Notes Agreements.

F. The Borrower shall have paid, or substantially contemporaneously with the effectiveness hereof, shall pay, to the Lenders all accrued and unpaid interest due and payable under the Credit Agreement on the Amendment No. 2 Effective Date.

ARTICLE IV

Release

So long as no Company holds any Investment in, made any Restricted Payments to, disposed of, sold, leased or otherwise transferred any assets to, or merged, consolidated or amalgamated with RCAP Holdings on or after the Amendment No. 2 Effective Date, notwithstanding anything to the contrary in the Agreement, upon the occurrence of the Funding Effective Date, the Borrower may effect the right to purchase the Class B common Equity Interests of RCAP Holdings pursuant to the terms of the Note Purchase and Class B Share Agreement. The right to purchase the Class B common Equity Interests of RCAP Holdings pursuant to the terms of the Note Purchase and Class B Share Agreement shall be deemed a Permitted Lien under the Credit Agreement.

ARTICLE V

Release of Claims

The Borrower and, by their execution of this Amendment, each of the other Loan Parties hereby releases and forever discharge the Administrative Agent, the Lenders and each of the Administrative Agent’s and the Lenders’ predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and Affiliates (hereinafter all of the above collectively referred to as the “Lender Group”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, in each case to the extent arising in connection with the Loan Documents, this Amendment or any of the negotiations, activities, events or circumstances arising out of or related to the Loan Documents or this Amendment through the Amendment No. 2 Effective Date, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any of the Loan Parties may have or claim to have against any of the Lender Group; provided, that nothing will constitute a release or discharge of the Credit Agreement or of the effectiveness of the Loan Documents or this Amendment from and after the Amendment No. 2 Effective Date.

ARTICLE VI

Miscellaneous

A. Credit Agreement. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Borrower or any other Loan Party under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. After the Amendment No. 2 Effective Date, any reference to the Credit Agreement shall mean the Credit Agreement as modified hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

 B. Acknowledgement and Reaffirmation of Borrower and Guarantors. The Borrower and the Guarantors acknowledge and consent to all terms and conditions of this Amendment and agree that this Amendment does not operate to reduce, impair or discharge the Borrower’s or the Guarantors’ obligations under any Loan Document including, without limitation, the Obligations.  Each of the Borrower and the Guarantors hereby ratifies and confirms its obligations under the Credit Agreement if a party thereto and the other Loan Documents to which it is a party including, without limitation, the Obligations.

C. Liens Unimpaired.  After giving effect to this Amendment and the transactions contemplated hereby, neither the modification of the Credit Agreement effected pursuant to this Amendment nor the execution, delivery, performance or effectiveness of this Amendment (i) impairs the validity, enforceability, effectiveness or priority of any of the Liens granted pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred; or (ii) requires that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.

D. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of the Lenders.

E. Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

F. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and Administrative Agent.

G. Headings. The headings of the several sections and subsections of this Amendment are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment.

H. Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

I. Course of Dealing. Each party hereto acknowledges that the terms of this Amendment shall not constitute a course of dealing among the parties hereto.

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first written above.

RCS CAPITAL CORPORATION
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Chief Financial Officer
RCAP HOLDINGS, LLC
RCS CAPITAL MANAGEMENT, LLC
By:	/s/ William M. Kahane
	Name:	William M. Kahane
	Title:	Authorized Signatory
The Subsidiary Guarantors listed on Exhibit A hereto:
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Authorized Signatory

[Signature Page to Amendment No. 2 (First Lien)]

Exhibit A

The Subsidiary Guarantors

RCS Capital Holdings, LLC

RCS Advisory Services, LLC

American National Stock Transfer, LLC

Cetera Financial Holdings, Inc.

Cetera Financial Group, Inc.

Cetera Investment Management LLC

Cetera Advisors Insurance Services LLC

Cetera Insurance Agency LLC

Cetera Advisor Networks Insurance Services, LLC

Cetera Financial Specialists Services LLC

Summit Financial Services Group, Inc.

Summit Capital Group, Inc.

SBS Financial Advisors, Inc.

Summit Financial Group, Inc.

Summit Holding Group, Inc.

SBS Insurance Agency of Florida, Inc.

SBS of California Insurance Agency, Inc.

SBSI Insurance Agency of Texas, Inc.

Braves Acquisition, LLC

J.P. Turner & Company Capital Management LLC

First Allied Holdings Inc.

FAS Holdings, Inc.

First Allied Advisory Services, Inc.

Legend Group Holdings, LLC

Legend Advisory Corporation New

Investors Capital Holdings, LLC.

ICH Securities Corporation

ICC Insurance Agency, Inc.

SK Research, LLC

VSR GROUP, LLC

CHARGERS ACQUISITION, LLC

Guaranty Brokerage Services, Inc.

Clifford Acquisition, Inc.

[Signature Page to Amendment No. 2 (First Lien)]

BARCLAYS BANK PLC, as Administrative Agent, Collateral Agent and a Lender
By:	/s/ Ryan M. Roy
	Name: Ryan M. Roy
	Title: Director

[Signature Page to Amendment No. 2 (First Lien)]

BANK OF AMERICA, N.A., as a Lender
By:	/s/ Charles S. Francavilla
	Name: Charles S. Francavilla
	Title: Managing Director

EX-10.6

Exhibit 10.6

Execution Version

AMENDMENT No. 2, dated as of November 8, 2015 (this “Amendment”), to the Second Lien Credit Agreement, dated as of April 29, 2014 (as amended by Amendment No.1 dated as of June 30, 2015 and as further amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among RCS Capital Corporation, a Delaware corporation (the “Borrower”), RCAP Holdings, LLC, a Delaware limited liability company (“RCAP Holdings”), RCS Capital Management, LLC, a Delaware limited liability company (“RCS Management”), the Subsidiary Guarantors, the lenders and other parties thereto from time to time party thereto and Bank of America, N.A., as Administrative Agent and Collateral Agent.

A. The Borrower has requested that the Required Lenders amend the Credit Agreement as set forth below.

B. Pursuant to Section 9.08 of the Credit Agreement, the Borrower and the Lenders may amend the Credit Agreement with the acknowledgement of the Administrative Agent.

C. Capitalized terms used but not defined herein have the meanings assigned to them in the Credit Agreement.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

ARTICLE I

Amendment No. 2 Effective Date Amendments

(a) The definition of Eligible Assignee in Section 1.01 of the Credit Agreement is hereby amended and restated as follows:

““Eligible Assignee” shall mean any Person (other than a natural Person) that is (a) a Lender, (b) an Affiliate of a Lender, (c) a Related Fund of a Lender and (d) any other Person (other than a natural person) approved by the Administrative Agent and the Borrower in accordance with Section 9.04(b) (each such approval not to be unreasonably withheld, conditioned or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include any RCS Company or any Affiliate of an RCS Company (in each case other than the Borrower and, in the case of the Borrower, solely in connection with transactions permitted pursuant to Section 2.25 and Section 9.04(l)) or any Restricted Party.”

(b) The definition of Junior Debt in Section 1.01 of the Credit Agreement is hereby amended and restated as follows:

““Junior Debt” shall mean (a) Subordinated Indebtedness, (b) the Senior Notes and any additional Indebtedness incurred pursuant to Section 6.01(y), (c) any Indebtedness that is secured by a Lien on any Collateral that ranks junior to the Lien on such Collateral securing the Obligations and (d) Indebtedness incurred (but not assumed) pursuant to Section 6.01(m) or (u) (or any Indebtedness incurred pursuant to Section 6.01(l) that was originally incurred pursuant to Section 6.01(m) or (u) or any refinancing pursuant to 6.01(l) of any such Indebtedness).”

(c) Section 1.01 of the Credit Agreement is amended by adding the following definitions to such Section in the appropriate alphabetical order:

(i) “Amendment No. 2” means Amendment No. 2 to this Agreement, dated as of November 8, 2015.

(ii) “Amendment No. 2 Effective Date” has the meaning assigned to such term in Amendment No. 2.

(iii) “Designated Entities” means Realty Capital Securities, LLC, Strategic Capital Management Holdings, LLC and American National Stock Transfer, LLC.

(iv) “Funding Effective Date” means the date on which the Borrower shall have (A) applied an aggregate principal amount of not less than $112,500,000 (of which no less than $87,500,000 shall be applied to the Term Loans (as defined in the First Lien Credit Agreement) to the prepayment of the then outstanding principal amounts of the Term Loans (as defined in the First Lien Credit Agreement) and the Revolving Loans (as defined in the First Lien Credit Agreement) as a result of either (i) mandatory prepayments pursuant to Section 2.13(b) of the First Lien Credit Agreement from the Net Cash Proceeds of Asset Sales made on or after the Amendment No. 2 Effective Date in each case permitted pursuant to Section 6.04(b) of the First Lien Credit Agreement, or (ii) voluntary prepayments made pursuant to Section 2.12(a) of the First Lien Credit Agreement, excluding, in the case of each of the foregoing (i) and (ii), any proceeds from any Specified Asset Sales or the Senior Notes and (B) the Revolving Loans (as defined in the First Lien Credit Agreement) shall have been repaid in full and in cash, subject to reborrowing upon satisfaction of the conditions set forth in Section 4.01 of the First Lien Credit Agreement, and the Revolving Credit Commitments (as defined in the First Lien Credit Agreement) shall have been permanently reduced, by at least $4,167,000.

(v) “Independent Board Approval” means approval by the board of directors (which approval must include all of the members of the board of directors that were nominated or appointed by the Third Party Funding Source and no fewer than at least one director nominated or appointed by the Third Party Funding Source) of Borrower in good faith with any representative (including any board nominee) of a Restricted Party (other than the Third Party Funding Source) and any representative (including any board nominee) of any group in which a Restricted Party (other than the Third Party Funding Source) is a member abstaining from such approval process.

(vi) “Membership Interest Purchase Agreement” means that certain Amended and Restated Membership Interest Purchase Agreement, dated as of November 8, 2015, among Apollo Management Holdings, L.P., the Borrower and RCAP Holdings, as in effect on November 8, 2015.

(vii) “Note Purchase and Class B Share Agreement” means that certain Note Purchase and Class B Share Agreement dated as of November 8, 2015, between the Borrower and RCAP Holdings, LLC as in effect on November 8, 2015.

(viii) “Restricted Parties” means (i) Apollo Global Asset Management, LLC and its Affiliates, portfolio companies and funds controlled by it or its Affiliates, (ii) from and after the date on which any Designated Entity is not directly or indirectly wholly owned by the Borrower, such Designated Entity and its Affiliates and (iii) Luxor Capital Group, L.P. and any holder of any class of outstanding preferred Equity Interests of any RCS Company (other than Redwood Capital Management, LLC, Nokota Capital Master Fund LP or any of their respective Affiliates or any funds Controlled by or managed by either of them or their respective Affiliates) and their respective Affiliates, portfolio companies or any funds Controlled by any of them or any of their respective Affiliates; provided, that the foregoing clause (iii) shall not apply to (a) a Lender that becomes a holder of any class of outstanding preferred Equity Interests of any RCS Company after the Amendment No. 2 Effective Date, (b) any Person to the extent such Person no longer has a representative on the board of directors of Borrower and no longer holds or has any right or option to acquire Equity Interests of any RCS Company or any of the respective Subsidiaries of the RCS Companies or (c) any RCS Company and its Subsidiaries.

(ix) “Senior Notes” means the senior unsecured notes contemplated to be issued pursuant to the terms of the Senior Notes Agreements as in effect on November 8, 2015.

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(x) “Senior Notes Agreements” means, collectively, (A) the Note Purchase and Class B Share Agreement and (B) the Note Purchase Agreement, dated as of November 8, 2015, between the Borrower and the applicable Senior Notes Investors, in each case, as in effect on November 8, 2015, pursuant to which the Borrower has agreed to issue the Senior Notes to the Senior Notes Investors.

(xi) “Senior Notes Investors” means the purchasers of the Senior Notes pursuant to the Senior Notes Agreements.

(xii) “Specified Asset Sales” means the sale of all or substantially all of the assets, Equity Interests or business of any Specified Entity.

(xiii) “Specified Entities” means Hatteras Funds, LLC, Docupace Technologies, LLC and DirectVest LLC.

(xiv) “Third Party Funding Event” means the repayment of the Loans in accordance with the definition of “Funding Effective Date”, in whole or in part, from (i) the proceeds of the issuance of Equity Interests of the Borrower to a Third Party Funding Source on the Funding Effective Date or (ii) the proceeds of Subordinated Indebtedness provided to the Borrower by the Third Party Funding Source on the Funding Effective Date.

(xv) “Third Party Funding Source” means in respect of a Third Party Funding Event, (i) a purchaser (that, prior to becoming a purchaser, was not an RCS Company, an Affiliate of an RCS Company or a Restricted Party) of Equity Interests of the Borrower on the Funding Effective Date or (ii) a lender (that, prior to becoming a lender, was not an RCS Company, an Affiliate of an RCS Company or a Restricted Party) of Subordinated Indebtedness to the Borrower on the Funding Effective Date; provided, for solely for the purposes of this definition, a Restricted Party shall not include Luxor Capital Group, L.P. and its Affiliates or any funds Controlled by any of them or any of their respective Affiliates.

(d) A new Section 3.30 shall be added to the end of Article III of the Credit Agreement that shall read as follows:

“SECTION 3.30 Specified Asset Sales; Certain Agreements. In the 60 days prior to the Amendment No. 2 Effective Date, no Company has made any Investment in, made any Restricted Payments to, disposed of, sold, leased or otherwise transferred any assets to, or merged, consolidated or amalgamated with any Specified Entity; other than as a result of a transaction that (i) was in the ordinary course of business consistent with past practices or (ii) is set forth on Schedule 1. There is no written agreement between the Borrower or any of its Subsidiaries and any Restricted Party that relates to any Designated Entity, other than agreements entered into in the ordinary course of business and agreements regarding the sale referred to in Section 6.14(b)(viii).”

(e) The paragraph following Section 5.04(a) of the Credit Agreement is hereby amended by replacing such paragraph in its entirety with the following:

“Such financial statements shall be audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to the scope of such audit or as to the status of the Borrower and its Subsidiaries as a going concern (other than with respect to the fiscal year ending December 31, 2015) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as otherwise disclosed therein) applied;”

(f) A new Section 5.16 shall be added to the end of Article V of the Credit Agreement that shall read as follows:

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“SECTION 5.16 Chief Restructuring Officer. Within 14 days after the Amendment No. 2 Effective Date, the Borrower shall appoint a chief restructuring officer reasonably satisfactory to the Administrative Agent and the Required Lenders, having authority reasonably satisfactory to the Administrative Agent and the Required Lenders and reporting directly to the board of directors of the Borrower.”

(g) Section 6.01 of the Credit Agreement is hereby amended by deleting “and” at the end of clause (v), replacing the “.” at the end of clause (w) with “;” and adding the following clause (x) and clause (y)”:

“(x) Subordinated Indebtedness of the Borrower; provided (i) such Subordinated Indebtedness shall at all times be unsecured, (ii) shall only be guaranteed by a Company that is a Guarantor of the Obligations; provided that, if such Guarantor is released from its obligations under the Guarantee Agreement, then the terms of such Subordinated Indebtedness shall expressly provide that such Guarantor shall be automatically released from its guaranty obligations with respect to such Subordinated Indebtedness, (ii) the terms of such Subordinated Indebtedness will not provide for payments of principal or interest in cash prior to the 91^st day after payment in full of the Obligations, (iii) such Indebtedness will have a maturity date on or after the 91^st day after the Term Loan Maturity Date (as in effect on the date hereof) and (iv) the such Subordinated Indebtedness shall be subordinated pursuant to a subordination agreement that is reasonably acceptable to the Required Lenders; and

(y) (i) the Senior Notes; provided (A) the Senior Notes shall at all times be unsecured, (B)the Senior Notes shall only be obligations of the Borrower and shall not be Guaranteed by any Person, (C) the terms of the Senior Notes will not require payments of principal or interest in cash prior to the 91^st day after payment in full of the Obligations, and (D) the Senior Notes will have a maturity date on or after the 91st day after the Term Loan Maturity Date (as in effect on the date hereof) and (ii) additional Indebtedness that has the same terms as the Senior Notes and meets the requirements of the foregoing clauses (A) through (D); provided further that (I) not more than $86,250,000 of Indebtedness may be incurred in reliance on this clause (y) (excluding amounts incurred as payment in kind of interest) and (II) the Borrower will not make payments of principal or interest on the Senior Notes or any Indebtedness incurred in reliance on the foregoing clause (y) in cash prior to the 91st day after payment in full of the Obligations except as provided in Section 6.06(b)(v).”

(h) Section 6.03(y) of the Credit Agreement is hereby amended by replacing such Section 6.03(y) in its entirety with the following:

“(y) Investments in the form of ordinary course loans to Financial Advisors affiliated with the Borrower (other than loans to Affiliates (that are not Companies) or their respective representatives) consistent with past practice in an aggregate amount for such loans not to exceed $28,750,000 in any fiscal year; and”

(i) Section 6.04(b)(i) of the Credit Agreement is hereby amended by adding the following proviso immediately at the end thereto:

“; provided, that, the Companies may effect a Specified Asset Sale without regard to the foregoing limitations so long as (A) at the time of such Specified Asset Sale and after giving effect to such Specified Asset Sale, no Default or Event of Default shall have occurred and be continuing, (B) the representations and warranties in Section 3.30 are true and correct at the time of such Specified Asset Sale, (C) the Net Cash Proceeds of each such Specified Asset Sale shall be immediately applied on the date of receipt thereof to prepay the Loans as required by Section 2.13(b), and (D) any non cash proceeds received in the form of Indebtedness or capital stock are pledged to the Collateral Agent to the extent required under Section 5.10.”

(j) Section 6.04(b) of the Credit Agreement is hereby amended by amending and restating the paragraph the last paragraph of such section as follows:

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“Notwithstanding the foregoing, the Borrower shall not, and shall not permit any of its Subsidiaries to, sell, transfer or otherwise dispose of Cetera Financial Holdings, Inc., Cetera Financial Group, Inc. or any of their respective Subsidiaries (or all or substantially all of the assets of Cetera Financial Holdings, Inc., Cetera Financial Group, Inc. or any of their respective Subsidiaries) without first (or simultaneously) indefeasibly paying all outstanding Term Loans and all other Obligations in full in cash.”

(k) Section 6.05(a) of the Credit Agreement is hereby amended by deleting “and” at the end of clause (xii), replacing the “.” at the end of clause (xiii) with “; and” and adding the following clause (xiv)”:

“(xiv) the Borrower may make Restricted Payments in an amount of $1 or less to effect the purchase by the Borrower of the Class B common Equity Interests in the Borrower held by RCAP Holdings pursuant to the terms of the Note Purchase and Class B Share Agreement.”

(l) Section 6.06(b) of the Credit Agreement is hereby amended by deleting “and” at the end of clause (iii), replacing the “.” at the end of clause (iv) with “; and” and adding the following clause (v)”:

“(v) the Borrower may make payments in an amount necessary to purchase, redeem, retire, defease, acquire, cancel or terminate the Senior Note in the original principal amount of $12,000,000 owed to RCAP Holdings, plus any accrued and outstanding interest thereon; provided, that (A) the Funding Effective Date has occurred or will occur substantially simultaneously with such payment and (B) immediately after giving effect to such payment, no Default or Event of Default shall have occurred and be continuing.”

(m) Section 6.07(a) of the Credit Agreement is hereby amended by adding the following sentence after the table set forth therein:

“Notwithstanding the foregoing, the Fixed Charge Coverage Ratio will not be tested for the Test Period ending as of September 30, 2015.”

(n) Section 6.07(b) of the Credit Agreement is hereby amended by adding the following sentence after the table set forth therein:

“Notwithstanding the foregoing, the Secured Leverage Ratio will not be tested for the Test Period ending as of September 30, 2015.”

(o) A new Section 6.12 shall be added to the end of Article VI of the Credit Agreement that shall read as follows:

“SECTION 6.12 Senior Notes. Amend, modify, waive, terminate or grant any consent to any provision of the Senior Notes Agreements or any of the terms or conditions of the Senior Notes set forth therein in any manner adverse to the interests of the Lenders.”

(p) A new Section 6.13 shall be added to the end of Article VI of the Credit Agreement that shall read as follows:

“SECTION 6.13 Specified Asset Sales. On or after the Amendment No. 2 Effective Date, no Company shall make any Investment in, make any Restricted Payments to, dispose of, sell, lease or otherwise transfer any assets (including Equity Interests) to, or merge, consolidate or amalgamate with, any of the Specified Entities; other than as a result of transactions that are (i) in the ordinary course of business consistent with past practices or (ii) in accordance with binding contractual arrangements in writing that were in existence and effective as of September 30, 2015 ((x) without giving effect to any amendment, waiver, modification or supplement to such agreements after September 30, 2015 and (y) excluding any agreement that is not effective on, and any transaction that has not been consummated by, September 30, 2015 but contemplated by such contractual agreements to be entered into or consummated on a future date).”

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(q) A new Section 6.14 shall be added to the end of Article VI of the Credit Agreement that shall read as follows:

“SECTION 6.14 Transactions with Restricted Parties. (a) Enter into any Asset Sales in contravention of Section 6.04(b) or enter into any management or other services agreements involving cash payments or consideration for the benefit of a Restricted Party.

(b) Enter into any transactions with or for the benefit of any Restricted Party other than:

(i) transactions that were entered into when such Person was not a Restricted Party (whether before or after the Amendment No. 2 Effective Date);

(ii) transactions with Luxor Capital Group, L.P. and its Affiliates or any funds Controlled by any of them or any of their respective Affiliates pursuant to which such Person is a purchaser of the Senior Notes and additional Indebtedness that has the same terms as the Senior Notes or additional Equity Interests of the Borrower;

(iii) transactions that are (A) on terms that are substantially as favorable to such Company as it would obtain in comparable arm’s length transactions with a Person that is not a Restricted Party or Affiliate and (B) consummated pursuant to binding contractual agreements in writing that were in existence and effective as of September 30, 2015 ((x) without giving effect to any amendment, waiver, modification or supplement to such agreements after September 30, 2015 and (y) excluding any agreement that is not effective on, and any transaction that has not been consummated by, September 30, 2015 but contemplated by such contractual agreements to be entered into or consummated on a future date);

(iv) after the occurrence of the Third Party Funding Event, transactions that (A) are on terms that are substantially as favorable to such Company as it would obtain in comparable arm’s length transactions with a Person that is not a Restricted Party or Affiliate and (B) have received Independent Board Approval;

(v) transactions pursuant to the Services Agreement among Realty Capital Services, LLC, RCS Advisory Services, LLC, American National Stock Transfer, LLC, American Realty Capital Advisors, LLC and AR Advisory Services, LLC, dated as of June 4, 2013, and any modification, amendment, supplement or amendment and restatement of such agreement; provided any such modification, amendment, supplement or amendment and restatement is not adverse to the Lenders; provided further that total consideration paid with respect to such Services Agreement shall not exceed $7,500,000 in any fiscal year;

(vi) transactions whereby Borrower or its Subsidiaries perform transaction management and related services and the distribution of investment products pursuant to ordinary course services agreements between a Loan Party and any Restricted Party’s portfolio companies or funds or any of their respective Affiliates (including, but not limited to, dealer-manager agreements, transfer agent services agreements, investor relations services agreements, investment banking services agreements and engagement letters and listing and proxy services agreements), in each case consistent with past practice and approved by the affirmative vote of a majority of the independent directors (or similar governing body) of such portfolio company or fund; provided that the terms of such transactions are no less favorable to the Borrower or such Subsidiary as the Borrower or such Subsidiary would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower or a Restricted Party;

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(vii) the sublease contemplated by Section 8.16 of the Note Purchase and Class B Share Agreement; provided that the amounts payable by the Borrower and its Subsidiaries under such sublease agreement shall not exceed $100,000 per month, excluding reimbursement of expenses on customary terms;

(viii) the sale by the Borrower and the Borrower’s wholly-owned subsidiary, RCS Capital Holdings, LLC, to Apollo Management Holdings, LP, of 100% of the Equity Interests of Realty Capital Securities, LLC (“RCS”) and Strategic Capital Management Holdings, LLC (“StratCap”), and the other transactions and agreements contemplated by the Membership Interest Purchase Agreement, for an aggregate consideration of $6,000,000, subject to working capital and other adjustments (the “MIPA Purchase Price”), which sale shall be consummated, in the case of RCS, no later than January 2016 and, in the case of StratCap, upon the satisfaction of applicable conditions; provided that the consideration provided by the Borrower and its Subsidiaries under such transactions shall be only (a) the Equity Interests in RCS and StratCap and (b) other consideration in excess of the MIPA Purchase Price the fair market value of which shall not exceed in any fiscal year of the Borrower and its Subsidiaries the sum of the consideration received therefor by the Borrower and its Subsidiaries and $5,000,000; and

(ix) the indemnity provided in that certain Release, dated as of November 8, 2015, by and among AR Capital, LLC, Nicholas S. Schorsch, Peter M. Budko, William M. Kahane, Edward M. Weil, Jr. and Brian S. Block, the Borrower, RCS Holdings and Luxor Capital Partners LP, as in effect on November 8, 2015 (the “Release”) in favor of the ARC Related Parties (as defined in the Release) by the Borrower and RCS Holdings..”

(r) Section 7.01(f) is hereby amended and restated as follows:

“(f) (i) any Company shall default in the payment of any principal or interest due in respect of any of the Senior Notes or any other Indebtedness incurred in reliance on Section 6.01(y) (collectively, “Specified Debt”) or any Material Indebtedness, in each case beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) any other event or condition occurs, in either case that results in any Specified Debt or any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holders of any Specified Debt or any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply to (x) with respect to Indebtedness consisting of any Hedging Agreements, termination events or equivalent events pursuant to the terms of such Hedging Agreements and (y) secured Indebtedness that becomes due solely as a result of the sale, transfer or other disposition of the property or assets securing such indebtedness; provided further that this clause (f) shall not apply to any redemption, conversion or settlement of any such Indebtedness that is convertible into Qualified Capital Stock of Borrower or RCAP Holdings (and cash in lieu of fractional shares or units) and/or cash (in lieu of such Qualified Capital Stock of Borrower or RCAP Holdings) pursuant to its terms unless such redemption, conversion or settlement results from a default thereunder; provided further that  a First Lien Event of Default shall not in and of itself constitute an Event of Default under this paragraph unless such First Lien Event of Default, (i) constitutes a First Lien Payment Default relating to the failure to pay principal when due or (ii) constitutes any First Lien Event of Default (other than a First Lien Payment Default relating to the failure to pay principal when due) under the First Lien Credit Agreement until 180 days shall have elapsed since the commencement of such First Lien Event of Default and all applicable grace periods have expired; provided further that if the Indebtedness under the First Lien Credit Agreement has been accelerated or commitments thereunder have been terminated as a result thereof, such First Lien Event of Default shall constitute an Event of Default under this paragraph as of the date of such acceleration;”

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(s) A new Section 7.01(o) shall be added to the end of Article VII of the Credit Agreement that shall read as follows:

“(o) an Affiliate of a Company or a Restricted Party becomes a Lender under the Credit Agreement or a Lender (as such term is defined in the First Lien Credit Agreement) under the First Lien Credit Agreement.”

ARTICLE II

Representations and Warranties

The Loan Parties represent and warrant, as of the Amendment No. 2 Effective Date, to the Administrative Agent and the Lenders that:

A. This Amendment has been duly executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity and an implied covenant of good faith and fair dealing. Each Senior Notes Agreement has been duly executed and delivered by the Borrower and, to the knowledge of the Borrower, the Senior Notes Investors party thereto and constitutes a legal, valid and binding obligation of the Borrower and, to the knowledge of the Borrower, the Senior Notes Investors party thereto, enforceable against the Borrower and, to the knowledge of the Borrower, the Senior Notes Investors party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity and an implied covenant of good faith and fair dealing.

B. Upon the effectiveness of this Amendment, the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (and in all respects with respect to representations qualified by materiality) on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects (and in all respects with respect to representations qualified by materiality) as of such earlier date).

C. No Affiliate of an RCS Company is a Lender under the Credit Agreement or a Lender (as such term is defined in the First Lien Credit Agreement) under the First Lien Credit Agreement.

D. In the 60 days prior to the Amendment No. 2 Effective Date, no Company has made any Investment in, made any Restricted Payments to, disposed of, sold, leased or otherwise transferred any assets to, or merged, consolidated or amalgamated with any of the Specified Entities; other than as a result of a transaction that was in the ordinary course of business consistent with past practices or in accordance with binding contractual arrangements that were in existence and effective at the time of such transaction.

E. Upon the effectiveness of this Amendment, no Default or Event of Default has occurred and is continuing.

F. No Loan Party or any of their respective representatives or advisors has provided material non public information to the Lenders party hereto other than pursuant to the terms of Section 9.16 of the Credit Agreement and the letter agreements entered into with individual Lenders, which shall, pursuant to the terms of such letter agreements, as amended hereby and agreed by the Lenders, be publicly disclosed as of November 16, 2015.

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G. As of the date of this Amendment, there are no side letters or other agreements with respect to the Senior Notes other than the Senior Notes and the Senior Notes Agreements that has not been disclosed to Lenders’ counsel.

H. None of the Persons listed on any annex attached to that certain letter agreement related to employees of the Borrower, dated November 8, 2015, by the Borrower and accepted and agreed to by ARC Capital, LLC, have at any time in the past twelve months performed any services or functions on behalf of or related to Cetera Financial Holdings, Inc., Cetera Financial Group, Inc. or any of their respective Subsidiaries (collectively, the “Covered Companies”) except those employees listed on Schedule 2 who are employees of Companies other than the Covered Companies and perform activities for the Covered Companies that are incidental to their responsibilities at Companies other than the Covered Companies.

ARTICLE III

Conditions to Amendment No. 2 Effectiveness

This Amendment shall become effective on the date (the “Amendment No 2. Effective Date”) on which each of the following conditions is satisfied or waived:

A. The Administrative Agent (or its counsel) shall have received an executed counterpart of this Amendment from (i) the Required Lenders and the Administrative Agent no later than 5:00 p.m. (New York time) on 8, 2015 (such date and time, the “Consent Deadline”), and (ii) the Loan Parties.

B. The Loan Parties shall have paid all fees and reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the Loan Documents, including, without limitation, the preparation, execution and delivery of this Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).

C. The representations and warranties in Article II hereto shall be true and correct as of the Amendment No. 2 Effective Date.

D. Amendment No. 2 to the First Lien Credit Agreement, in the form attached hereto as Exhibit B, shall simultaneously become effective.

E. The Borrower shall have received (i) fully executed copies of the Senior Note Agreements (as defined in Article I of this Amendment), in form and substance satisfactory to the Administrative Agent and the Required Lenders and such Senior Notes Agreements shall be in full force and effect and (ii) net cash proceeds in an aggregate amount not less than $27,000,000 from the issuance of Senior Notes (as defined in Article I of this Amendment) pursuant to the terms of the Senior Notes Agreements.

F. The Borrower shall have paid, or substantially contemporaneously with the effectiveness hereof, shall pay, to the Lenders all accrued and unpaid interest due and payable under the Credit Agreement on the Amendment No. 2 Effective Date.

ARTICLE IV

Release

So long as no Company holds any Investment in, made any Restricted Payments to, disposed of, sold, leased or otherwise transferred any assets to, or merged, consolidated or amalgamated with RCAP Holdings on or after the Amendment No. 2 Effective Date, notwithstanding anything to the contrary in the Agreement, upon the occurrence of the Funding Effective Date, the Borrower may effect the right to purchase the Class B common Equity Interests of RCAP Holdings pursuant to the terms of the Note Purchase and Class B Share Agreement. The right to purchase the Class B common Equity Interests of RCAP Holdings pursuant to the terms of the Note Purchase and Class B Share Agreement shall be deemed a Permitted Lien under the Credit Agreement.

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ARTICLE V

Release of Claims

The Borrower and, by their execution of this Amendment, each of the other Loan Parties hereby releases and forever discharge the Administrative Agent, the Lenders and each of the Administrative Agent’s and the Lenders’ predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and Affiliates (hereinafter all of the above collectively referred to as the “Lender Group”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, in each case to the extent arising in connection with the Loan Documents, this Amendment or any of the negotiations, activities, events or circumstances arising out of or related to the Loan Documents or this Amendment through the Amendment No. 2 Effective Date, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any of the Loan Parties may have or claim to have against any of the Lender Group; provided, that nothing will constitute a release or discharge of the Credit Agreement or of the effectiveness of the Loan Documents or this Amendment from and after the Amendment No. 2 Effective Date.

ARTICLE VI

Miscellaneous

A. Credit Agreement. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Borrower or any other Loan Party under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. After the Amendment No. 2 Effective Date, any reference to the Credit Agreement shall mean the Credit Agreement as modified hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

 B. Acknowledgement and Reaffirmation of Borrower and Guarantors. The Borrower and the Guarantors acknowledge and consent to all terms and conditions of this Amendment and agree that this Amendment does not operate to reduce, impair or discharge the Borrower’s or the Guarantors’ obligations under any Loan Document including, without limitation, the Obligations.  Each of the Borrower and the Guarantors hereby ratifies and confirms its obligations under the Credit Agreement if a party thereto and the other Loan Documents to which it is a party including, without limitation, the Obligations.

C. Liens Unimpaired.  After giving effect to this Amendment and the transactions contemplated hereby, neither the modification of the Credit Agreement effected pursuant to this Amendment nor the execution, delivery, performance or effectiveness of this Amendment (i) impairs the validity, enforceability, effectiveness or priority of any of the Liens granted pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred; or (ii) requires that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.

D. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of the Lenders.

E. Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

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F. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrower and Administrative Agent.

G. Headings. The headings of the several sections and subsections of this Amendment are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment.

H. Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

I. Course of Dealing. Each party hereto acknowledges that the terms of this Amendment shall not constitute a course of dealing among the parties hereto.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first written above.

RCS CAPITAL CORPORATION
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Chief Financial Officer
RCAP HOLDINGS, LLC
RCS CAPITAL MANAGEMENT, LLC
By:	/s/ William M. Kahane
	Name:	William M. Kahane
	Title:	Authorized Signatory
The Subsidiary Guarantors listed on Exhibit A hereto:
By:	/s/ Brian D. Jones
	Name:	Brian D. Jones
	Title:	Authorized Signatory

[Signature Page to Amendment No. 2 (Second Lien)]

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Exhibit A

The Subsidiary Guarantors

RCS Capital Holdings, LLC

RCS Advisory Services, LLC

American National Stock Transfer, LLC

Cetera Financial Holdings, Inc.

Cetera Financial Group, Inc.

Cetera Investment Management LLC

Cetera Advisors Insurance Services LLC

Cetera Insurance Agency LLC

Cetera Advisor Networks Insurance Services, LLC

Cetera Financial Specialists Services LLC

Summit Financial Services Group, Inc.

Summit Capital Group, Inc.

SBS Financial Advisors, Inc.

Summit Financial Group, Inc.

Summit Holding Group, Inc.

SBS Insurance Agency of Florida, Inc.

SBS of California Insurance Agency, Inc.

SBSI Insurance Agency of Texas, Inc.

Braves Acquisition, LLC

J.P. Turner & Company Capital Management LLC

First Allied Holdings Inc.

FAS Holdings, Inc.

First Allied Advisory Services, Inc.

Legend Group Holdings, LLC

Legend Advisory Corporation New

Investors Capital Holdings, LLC.

ICH Securities Corporation

ICC Insurance Agency, Inc.

SK Research, LLC

VSR GROUP, LLC

CHARGERS ACQUISITION, LLC

Guaranty Brokerage Services, Inc.

Clifford Acquisition, Inc.

[Signature Page to Amendment No. 2 (Second Lien)]

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BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent
By:	/s/ Roberto Salazar
	Name: Roberto Salazar
	Title: Vice President

[Signature Page to Amendment No. 2 (Second Lien)]

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EX-10.7

Exhibit 10.7

Execution Version

November 8, 2015

Edward M. Weil, Jr.
405 Park Avenue, 2^nd Floor

New York, NY 10022

Dear Mr. Weil:

In consideration for your services as the Chief Executive Officer of RCS Capital Corporation (the “Company”) to date, without compensation, other than reimbursement of expenses incurred in the execution of your duties in accordance with Company policy, and your willingness to remain the Chief Executive Officer of the Company without compensation at the pleasure of the Board of Directors of the Company, the Company has agreed to provide you (i) on the date hereof, a release, in the form attached hereto as Exhibit A (the “Initial Release”) and (ii) effective upon the termination of your services as the Chief Executive Officer of the Company for any reason (including as a result of your resignation) and subject to your services being performed in a manner that is reasonably consistent with the reasonable directions of the Board of Directors of the Company and its chairman, a second release from the Company containing substantially the same terms as contained in the Initial Release, updated through the date of such termination.

In addition, while you serve as an officer or employee of Company, the Company shall continue to provide you directors and officers insurance coverage for your acts and omissions while serving as an officer or director of the Company on a basis no less favorable to you than the coverage provided to you on the date hereof. Additionally, after any termination of your services as an officer or employee of the Company for any reason (including as a result of your resignation), for a period through the sixth anniversary of the termination of employment, the Company shall maintain directors and officers insurance coverage for you covering your acts or omissions while an officer or director of the Company on a basis no less favorable to you than the coverage provided to you on the date hereof.

Very truly yours,
RCS CAPITAL CORPORATION
By:	/s/ Brian D. Jones
	Name: Brian D. Jones
	Title:   Chief Financial Officer

Accepted and Agreed:

/s/ Edward M. Weil, Jr.

Edward M. Weil, Jr.

Exhibit A

Mutual Release

[See attached]

MUTUAL RELEASE

This MUTUAL RELEASE, dated as of November 8, 2015 (this “Agreement”), is entered into by and among (i) Edward M. Weil, Jr., (ii) RCS Capital Corporation (“RCAP”), and (iii) RCAP Holdings, LLC (“RCAP Holdings”). Each of the foregoing are collectively referred to herein as the “Parties” and each individually as a “Party.”

In consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, the Parties hereto hereby agree as follows:

AGREEMENT

Mutual Releases. RCAP, RCAP Holdings and Edward M. Weil, Jr. (solely in his capacity as Chief Executive Officer of RCAP) (collectively, the “Released Parties”) and each of their successors and assigns fully and forever waive, release, acquit and discharge each of the other Released Parties and each of their successors and assigns, to the full extent permitted under Delaware law, from any and all claims, suits, judgments, demands, debts, rights, obligations, liabilities, losses, costs, expenses, fees, causes of action and liabilities whatsoever (including claims for any and all losses, damages, unjust enrichment, attorney’s fees, disgorgement of fees, litigation costs, injunctive or declaratory relief, contribution, indemnification, or any other type of legal or equitable relief), in each case, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, asserted or unasserted, known or unknown, foreseen or unforeseen, existing as of the date hereof, in law, equity, or otherwise brought by way of demand, complaint, cross-claim, counterclaim, third-party claim or otherwise, in each case that are based in whole or part on any act, omission, transaction, event, or other occurrence arising from (i) the services of Edward M. Weil, Jr. as Chief Executive Officer of RCAP and (ii) any allegation that RCAP Holdings made available such services to RCAP.

Covenant not to Sue. Each Party, on behalf of itself and its respective Released Parties, hereby covenants to each other Party and their respective Released Parties not to, with respect to any Released Claim, directly or indirectly encourage or solicit or voluntarily assist or participate in any way in the investigation, filing, reporting or prosecution by such Party or its Released Parties or any third party of a suit, arbitration, mediation, or claim against any other Party and/or its Released Parties relating to any Released Claim. The covenants contained in this Section 2 shall survive this Agreement indefinitely regardless of any statute of limitations.

Public Announcements. The Parties shall consult with each other (and obtain the other party’s consent) before any Party (or its affiliates) issues any press release or otherwise makes any public statements with respect to the transactions contemplated by this Agreement, except (a) as may be required by any applicable law, regulation or rule of any governmental authority, stock exchange or self-regulatory organization to which a Party is subject if the Party issuing such press release or other public statement has, to the extent practicable, provided the other Parties with a reasonable opportunity to review and comment or (b) any press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a Party in accordance with this Agreement, in each case under this clause (b) to the extent such disclosure is still accurate.

[signature page follows]

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.

RCAP Holdings, LLC
By:
	Name:
	Title:
RCS Capital Corporation
By:
	Name:
	Title:
Edward M. Weil, Jr.

EX-99.1

Exhibit 99.1

 

IMMEDIATE RELEASE

RCS Capital Corporation Receives a Continued Listing Standard Letter from the NYSE

NEW YORK, November 12, 2015 – RCS Capital Corporation (“RCS Capital” or the “Company”) (NYSE: RCAP) announced today that it has been notified by the New York Stock Exchange (“NYSE”) on November 10, 2015 that its Class A common stock did not satisfy one of the NYSE standards for continued listing. The NYSE requires that the average closing price per share of a listed company be in excess of $1.00 for a consecutive 30-trading-day period. On November 6, 2015, the average closing price per share of the Company’s Class A common stock during the preceding 30-trading-day period was below the $1.00 requirement.

Under the NYSE rules, the Company has a period of six months following receipt of the notification, subject to possible extension, to bring its average share price back to $1.00. Notwithstanding the NYSE notification, the Company’s Class A common stock will continue to be listed and traded on the NYSE during this period. The Company intends to notify the NYSE that it anticipates that this deficiency will be cured and that it will return to compliance with the NYSE continued listing standard, and the NYSE has agreed to work with the Company through its initiatives.

About RCS Capital

RCS Capital Corporation (NYSE: RCAP) is a full-service investment firm expressly focused on the individual retail investor. With operating subsidiaries including retail advice services, investment banking, capital markets, investment research, and, until the completion of recently announced pending sales, wholesale distribution and investment management, RCS Capital's business is designed to capitalize, support, grow and maximize value for the investment programs it distributes and the independent advisors and clients it serves. Additional information about RCS Capital can be found on its website at www.rcscapital.com. RCS Capital may disseminate information about itself, including the results of its operations and financial information, via social media platforms such as Facebook, LinkedIn and Twitter.

Important Notice

The statements in this press release include statements regarding the intent, belief or current expectations of RCS Capital and members of its management team, as well as the assumptions on which such statements are based, and generally are identified by the use of words such as “may,” “will,” “seeks,” “anticipates,” “believes,” “estimates,” “expects,” “plans,” “intends,” “should,” “look forward” or similar expressions. Actual results may differ materially from those contemplated by such forward-looking statements due to certain factors, including RCS Capital’s ability to satisfy the NYSE minimum share price requirement. Additional factors that may affect future results are contained in RCS Capital's filings with the SEC, which are available at the SEC's website at www.sec.gov. Further, forward-looking statements speak only as of the date they are made, and RCS Capital undertakes no obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results over time, unless required by law. 

 

Media Inquiries:	Investor Inquiries:
Jonathan Keehner Mahmoud Siddig Joele Frank, Wilkinson Brimmer Katcher jKeehner@joelefrank.com msiddig@joelefrank.com (212) 355-4449	Andrew G. Backman Managing Director Investor Relations and Public Relations RCS Capital Corporation ABackman@rcscapital.com (917) 475-2135	Brian D. Jones Chief Financial Officer RCS Capital Corporation BJones@rcscapital.com (646) 937-6903