Exhibit 10.6


 


TAX RECEIVABLE AGREEMENT


 


Among


 


RCS CAPITAL CORPORATION,


 


RCAP HOLDINGS, LLC


 


REALTY CAPITAL SECURITIES, LLC,


 


RCS ADVISORY SERVICES, LLC, and


 


AMERICAN NATIONAL STOCK TRANSFER, LLC


 


 






 


Dated as of [           ],
2013


 


 






 




    	 



    	 



    

 


TABLE OF CONTENTS


 


	 	 	Page
	 	 	 
	ARTICLE 1
	Definitions
	 	 	 
	Section 1.01.	Definitions	1
	Section 1.02.	Other Definitional and Interpretative Provisions	8
	 	 	 
	ARTICLE 2
	Determination of Cumulative Realized Tax Benefit
	 	 	 
	Section 2.01.	Basis Adjustment.	9
	Section 2.02.	Exchange Basis Schedule	9
	Section 2.03.	Tax Benefit Schedule	9
	Section 2.04.	Procedures, Amendments	10
	 	 	 
	ARTICLE 3
	Tax Benefit Payments
	 	 	 
	Section 3.01.	Payments	11
	Section 3.02.	No Duplicative Payments	11
	Section 3.03.	Pro Rata Payments	11
	 	 	 
	ARTICLE 4
	Termination
	 	 	 
	Section 4.01.	Early Termination and Breach of Agreement	12
	Section 4.02.	Early Termination Notice	13
	Section 4.03.	Payment upon Early Termination	13
	 	 	 
	ARTICLE 5
	Subordination and Late Payments
	 	 	 
	Section 5.01.	Subordination	13
	Section 5.02.	Late Payments by the Corporation	13
	 	 	 
	ARTICLE 6
	No Disputes; Consistency; Cooperation
	 	 	 
	Section 6.01.	Principal Participation in the Corporation and the Operating Subsidiaries’s Tax Matters	13
	Section 6.02.	Consistency	14
	Section 6.03.	Cooperation	14


 




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	ARTICLE 7
	Miscellaneous
	 	 	 
	Section 7.01.	Notices	14
	Section 7.02.	Counterparts	16
	Section 7.03.	Entire Agreement; No Third-Party Beneficiaries	16
	Section 7.04.	Governing Law	16
	Section 7.05.	Severability	16
	Section 7.06.	Successors; Assignment; Amendments; Waivers	16
	Section 7.07.	Titles and Subtitles	17
	Section 7.08.	Resolution of Disputes	18
	Section 7.09.	Reconciliation	19
	Section 7.10.	Withholding	20
	Section 7.11.	Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets	20
	Section 7.12.	Confidentiality	20
	Section 7.13.	LLC Agreement	21
	Section 7.14.	Partnerships	21


 




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TAX RECEIVABLE AGREEMENT


 


This TAX RECEIVABLE AGREEMENT dated as of
[                ], 2013 (as amended from time
to time, this “Agreement”) is entered into among RCS Capital Corporation, a Delaware corporation (the “Corporation”),
RCAP Holdings, LLC, a Delaware limited liability company (“RCAP Holdings”), Realty Capital Securities, LLC,
a Delaware limited liability company, RCS Advisory Services, LLC, a Delaware limited liability company, and American National Stock
Transfer, LLC, a Delaware limited liability company.


 


RECITALS


 


WHEREAS, RCAP Holdings holds Operating Subsidiaries
Group Units in each of the Operating Subsidiaries, each of which is treated as a partnership for U.S. federal income tax purposes;


 


WHEREAS, as a result of any exchange of
Operating Subsidiaries Group Units for Class A Shares of the Corporation in the future pursuant to and in accordance with the Exchange
Agreement (as such terms are defined below) (an “Exchange”, and each such date an Exchange occurs, an “Exchange
Date”), with concurrent cancellation of an equal number of Class B Shares of the Corporation, the Corporation is expected
to incur lower Tax (as defined below) liabilities on an ongoing basis with respect to the operations of the Operating Subsidiaries;


 


WHEREAS, the Operating Subsidiaries and
any of their direct and indirect subsidiaries that are treated as partnerships for U.S. federal income tax purposes have or will
have in effect an election under Section 754 of the Internal Revenue Code of 1986, as amended (the “Code”),
for each Taxable Year (as defined below) in which an Exchange occurs, which election is expected to result in an adjustment to
the Tax basis of the assets owned by the Operating Subsidiaries and such subsidiaries, solely with respect to the Corporation;
and


 


WHEREAS, the parties to this Agreement desire
to make certain arrangements to share any tax benefits realized by the Corporation as a result of any Exchange.


 


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


 


ARTICLE
1

Definitions


 


Section 1.01.    Definitions.
As used in this Agreement, the terms set forth in this Article 1 shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):


 


“Advisory Firm” means
WeiserMazars, LLP, or any other accounting firm that is nationally recognized as being expert in Tax matters and that is appointed
by the Board and is reasonably acceptable to the Principals.


 




    	 



    	 



    

 


“Advisory Firm Letter”
means a letter from the Advisory Firm stating that the relevant schedule, notice or other information to be provided by the Corporation
to the Applicable Principal and all supporting schedules and work papers were prepared by the Corporation in good faith.


 


“Affiliate” means, with
respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls (as defined below),
is Controlled by, or is under common Control with, such first Person.


 


“Agreed Rate” means
LIBOR plus 100 basis points.


 


“Agreement” is defined
in the preamble of this Agreement.


 


“Amended Schedule” is
defined in Section 2.04(b).


 


“Applicable Principal”
means in respect of that portion of any Tax Benefit Payment that arises from an Exchange or a deemed Exchange pursuant to clause
(v) of the definition of “Valuation Assumptions”, the Exchanging Principal or Principal deemed to Exchange,
as applicable.


 


“Basis Adjustment” means
the adjustment to the Tax basis of an Exchange Asset as a result of an Exchange and the payments made pursuant to this Agreement,
as calculated under Section 2.01, under Section 732(b) of the Code (in a situation where, as a result of one or more Exchanges,
an Operating Subsidiary becomes an entity that is disregarded as separate from its owner for Tax purposes) or Sections 743(b) and
754 of the Code (including in situations where, following an Exchange, an Operating Subsidiary remains in existence as an entity
for Tax purposes) or otherwise, as applicable, and, in each case, comparable sections of state, local and foreign Tax laws. Notwithstanding
any other provision of this Agreement, the amount of any Basis Adjustment resulting from an Exchange of one or more Operating Subsidiaries
Group Units shall be determined without regard to any Pre-Exchange Transfer of such Operating Subsidiaries Group Units and as if
any such Pre-Exchange Transfer had not occurred.


 


A “Beneficial Owner”
of a security means a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise,
has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, such security, and/or (ii) investment
power, which includes the power to dispose of, or to direct the disposition of, such security. The terms “Beneficially
Own” and “Beneficial Ownership” shall have correlative meanings.


 


“Board” means the board
of directors of the Corporation.


 


“Business Day” means
Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America
or the State of New York shall not be regarded as a Business Day.


 


“Change of Control” means
the occurrence of any of the following events:


 




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(i)          any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, as in effect
on the date the IPO is consummated) other than RCAP Holdings and its Affiliates:


 


(A)         is
or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, as in effect on the
date the IPO is consummated), directly or indirectly, of 50% or more of the voting stock of the Corporation or, in the context
of a consolidation, merger or other corporate reorganization in which the Corporation is not the surviving entity, 50% or more
of the voting stock generally entitled to elect directors of such surviving entity (or in the case of a triangular merger, of the
parent entity of such surviving entity), calculated on a fully diluted basis; or


 


(B)         has
obtained the power (whether or not exercised) to elect a majority of the Board or the board of directors (or equivalent governing
body) of any of the Corporation’ successors;


 


(ii)         the
Board or the board of directors (or equivalent governing body) of any successor of the Corporation shall cease to consist of a
majority of Continuing Directors;


 


(iii)        the
sale, assignment, conveyance, transfer, lease or other disposition (directly or indirectly, whether by way of merger, asset sale,
equity sale, consolidation or otherwise), in one or a series of related transactions, of 50% or more of the value of the Operating
Subsidiaries taken as a whole to any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act, as in effect on the date the IPO is consummated) other than (i) to the Corporation, any Controlled Affiliate
of the Corporation, RCAP Holdings or any Affiliate of RCAP Holdings, or (ii) pursuant to the Reorganization. As used herein, the
term “Reorganization” shall mean a transaction or series of related transactions pursuant to which an entity
(the ownership interests of which are held by the same Persons and in the same relative proportions as the ownership interests
of the Operating Subsidiaries immediately prior to the transaction(s)) is interposed as the direct owner of all ownership interests
of the Operating Subsidiaries.


 


“Class A Shares” means
shares of Class A common stock, par value $0.001 per share, of the Corporation.


 


“Class B Shares” means
shares of Class B common stock, par value $0.001 per share, of the Corporation.


 


“Code” is defined in
the Recitals of this Agreement.


 


“Continuing Directors”
means the directors of the Corporation on the date of the pricing of the IPO and each other director of the Corporation if such
director’s election or nomination for election to the Corporation’s board of directors is approved by a majority of
the then Continuing Directors.


 


“Control” means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.


 




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“Corporation” is defined
in the Preamble of this Agreement.


 


“Corporation Return”
means the U.S. federal, state, local and/or foreign Tax Return, as applicable, of the Corporation filed with respect to Taxes for
any Taxable Year.


 


“Cumulative Net Realized Tax Benefit”
for a Taxable Year means the cumulative amount of Realized Tax Benefits for all Taxable Years of the Corporation, up to and including
such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The Realized Tax Benefit and Realized
Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedule or Amended Schedule, if any,
in existence at the time of such determination.


 


“Default Rate” means
LIBOR plus 300 basis points.


 


“Determination” shall
have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of state, local and foreign Tax law,
as applicable, or any other event (including the execution of a Form 870−AD) that finally and conclusively establishes the
amount of any liability for Tax.


 


“Dispute” is defined
in Section 7.08(a).


 


“Early Termination Date”
means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.


 


“Early Termination Notice”
is defined in Section 4.02.


 


“Early Termination Schedule”
is defined in Section 4.02.


 


“Early Termination Payment”
is defined in Section 4.03(b).


 


“Early Termination Rate”
means the long-term Treasury rate in effect on the applicable date.


 


“Exchange” is defined
in the Recitals of this Agreement; “Exchanged” and “Exchanging” shall have correlative meanings.


 


“Exchange Act” means
the Securities Exchange Act of 1934, as amended.


 


“Exchange Agreement”
means the Exchange Agreement dated as of [         ], 2013, between the Corporation
and RCAP Holdings, as the same may be amended from time to time in accordance with the terms thereof.


 


“Exchange Assets” means
assets held by any of the Operating Subsidiaries, or by any of their respective direct or indirect subsidiaries that is treated
as a partnership or disregarded entity for purposes of the applicable Tax, at the time of an Exchange.


 


“Exchange Basis Schedule”
is defined in Section 2.02.


 


“Exchange Date” is defined
in the Recitals of this Agreement.


 




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“Exchange Payment” is
defined in Section 5.01.


 


“Expert” is defined in
Section 7.09.


 


“Hypothetical Tax Liability”
means, with respect to any Taxable Year, the liability for Taxes of the Corporation (or the Operating Subsidiaries, but only with
respect to income realized by the Operating Subsidiaries the Tax liability for which is allocable to the Corporation for such Taxable
Year using the same methods, elections, conventions and similar practices used on the relevant Corporation Return) but using the
Non-Stepped Up Tax Basis instead of the Tax basis reflecting the Basis Adjustments of the Exchange Assets and excluding any deduction
attributable to Imputed Interest.


 


“Imputed Interest” shall
mean any interest imputed under Section 1272, 1274 or 483 or other provision of the Code and any similar provision of state, local
and foreign Tax law with respect to the Corporation’s payment obligations under this Agreement.


 


“Initiating Party” is
defined in Section 7.08(a).


 


“IPO” means the initial
public offering of the Class A Shares that is being consummated on the date hereof.


 


“IRS” means the U.S.
Internal Revenue Service.


 


“LIBOR” means for each
month (or portion thereof) during any period, an interest rate per annum equal to the rate per annum reported, on the date two
days prior to the first day of such month, as published by Reuters (or other commercially available source providing quotations
of LIBOR) for London interbank offered rates for U.S. dollar deposits for such month (or portion thereof).


 


“LLC Agreements” means,
collectively, (a) the Second Amended and Restated Limited Liability Company Agreement of Realty Capital Securities, LLC dated as
of [      ], 2013; (b) the Amended and Restated Limited Liability Company Agreement of RCS Advisory Services, LLC dated as of [     ], 2013;
and (c) the Amended and Restated Limited Liability Company Agreement of American National Stock Transfer, LLC dated as of [       ],
2013, as they may each be amended from time to time in accordance with the terms thereof.


 


“Market Value” means,
with respect to the Class A Shares, on any given date: (i) if the Class A Shares are listed for trading on the New York Stock Exchange,
the closing sale price per share of the Class A Shares on the New York Stock Exchange on that date (or, if no closing sale price
is reported, the last reported sale price), (ii) if the Class A Shares are not listed for trading on the New York Stock Exchange,
the closing sale price (or, if no closing sale price is reported, the last reported sale price) as reported on that date in composite
transactions for the principal national securities exchange registered pursuant to Section 6(g) of the Exchange Act, on which the
Class A Shares are listed, (iii) if the Class A Shares are not so listed on a national securities exchange, the last quoted bid
price for the Class A Shares on that date in the over-the-counter market as reported by OTC Markets Group, Inc. or a similar organization,
or (iv) if the Class A Shares are not so quoted by OTC Markets Group, Inc. or a similar organization such value as the Board, in
its sole discretion, shall determine in good faith.


 




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“Material Objection Notice”
has the meaning set forth in Section 4.02.


 


“Non-Stepped Up Tax Basis”
means, with respect to any asset at any time, the Tax basis that such asset would have had at such time if no Basis Adjustment
had been made.


 


“Notice” is defined in
Section 7.01.


 


“Objection Notice” is
defined in Section 2.04(a).


 


“Operating Subsidiaries”
means (i) Realty Capital Securities, LLC, (ii) RCS Advisory Services, LLC, and (iii) American National Stock Transfer, LLC, each
a Delaware limited liability company.


 


“Operating Subsidiaries Group Unit”
has the meaning set forth in the Exchange Agreement.


 


“Panel” is defined
in Section 7.08(a).


 


“Payment Date” means
any date on which a payment is required to be made pursuant to this Agreement.


 


“Permitted Transferee”
shall mean any of the Permitted Transferees (as defined in the LLC Agreements).


 


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


 


“Pre-Exchange Transfer”
means any transfer (including upon the death of a member) of one or more Operating Subsidiaries Group Units (i) that occurs prior
to an Exchange of such Operating Subsidiaries Group Units, and (ii) to which Section 743(b) of the Code applies.


 


“Principal” means each
of RCAP Holdings and any other Person that becomes a Principal pursuant to Section 7.06.


 


“Realized Tax Benefit”
means, for a Taxable Year and for all Taxes collectively, the net excess, if any, of the Hypothetical Tax Liability over the actual
liability for Taxes of the Corporation (or the Operating Subsidiaries, but only with respect to income realized by the Operating
Subsidiaries the Tax liability for which is allocable to the Corporation for such Taxable Year using the same methods, elections,
conventions and similar practices used on the relevant Corporation Return), determined, for the avoidance of doubt, using the “with
or without” methodology. If all or a portion of the actual liability for Taxes of the Corporation (or the Operating Subsidiaries,
but only with respect to income realized by the Operating Subsidiaries the Tax liability for which is allocable to the Corporation
for such Taxable Year using the same methods, elections, conventions and similar practices used on the relevant Corporation Return)
for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year, such liability shall not be included
in determining the Realized Tax Benefit unless and until there has been a Determination.


 




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“Realized Tax Detriment”
means, for a Taxable Year and for all Taxes collectively, the net excess, if any, of the actual liability for Taxes of the Corporation
(or the Operating Subsidiaries, but only with respect to income realized by the Operating Subsidiaries the Tax liability for which
is allocable to the Corporation for such Taxable Year using the same methods, elections, conventions and similar practices used
on the relevant Corporation Return) over the Hypothetical Tax Liability for such Taxable Year determined, for the avoidance of
doubt, using the “with or without” methodology. If all or a portion of the actual liability for Taxes of the Corporation
(or the Operating Subsidiaries, but only with respect to income realized by the Operating Subsidiaries the Tax liability for which
is allocable to the Corporation for such Taxable Year using the same methods, elections, conventions and similar practices used
on the relevant Corporation Return) for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year,
such liability shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination.


 


“Reconciliation Dispute”
has the meaning set forth in Section 7.09.


 


“Reconciliation Procedures”
means those procedures set forth in Section 7.09.


 


“Responding Party” is
defined in Section 7.08(a).


 


“Schedule” means any
Exchange Basis Schedule or Tax Benefit Schedule and the Early Termination Schedule.


 


“Senior Obligations”
is defined in Section 5.01.


 


“Subsidiaries” means,
with respect to any Person, as of any date of determination, any other Person as to which such Person, owns, directly or indirectly,
or otherwise controls more than 50% of the voting shares or other similar interests or the sole general partner interest or managing
member or similar interest of such Person.


 


“Tax” means any and all
U.S. federal, state, local and foreign tax, assessments or similar charges that are based on or measured with respect to net income
or profits, whether as an exclusive or on an alternative basis, and any interest related to such tax.


 


“Tax Benefit Payment”
is defined in Section 3.01(b).


 


“Tax Benefit Schedule”
is defined in Section 2.03.


 


“Tax Return” means any
return, declaration, report or similar statement required to be filed with respect to Taxes (including any attached schedules),
including any information return, claim for refund, amended return and declaration of estimated Tax.


 


“Taxable Year” means
a Taxable year of the Corporation as defined in Section 441(b) of the Code or comparable section of state, local or foreign Tax
law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return
is prepared), in which there is a Basis Adjustment or increased depreciation, amortization or interest deductions attributable
to an Exchange.


 




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“Taxing Authority” means
any domestic, foreign, federal, national, state, county or municipal or other local government, any subdivision, agency, commission
or authority thereof, or any quasi-governmental body exercising any Taxing authority or any other authority exercising Tax regulatory
authority.


 


“Treasury Regulations”
means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding provisions
and succeeding provisions) as in effect for the relevant Taxable period.


 


“Valuation Assumptions”
means, as of an Early Termination Date, or following a Change of Control, as applicable, the assumptions that: (i) in each Taxable
Year ending on or after such Early Termination Date, the Corporation will have sufficient Taxable income to fully offset the deductions
in such Taxable Year attributable to any Basis Adjustment, increased depreciation or amortization deductions attributable to an
Exchange, and Imputed Interest; (ii) the U.S. federal income Tax rates and state, local and foreign income Tax rates that will
be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other law as in effect
on the Early Termination Date; (iii) any loss carryovers generated by any Basis Adjustment or Imputed Interest and available as
of the date of the Early Termination Schedule will be used by the Corporation on a pro rata basis from the date of the Early Termination
Schedule through the scheduled expiration date of such loss carryovers; (iv) any non-amortizable assets will be disposed of on
the fifteenth anniversary of the Early Termination Date; provided, however, that, in the event of a Change of Control,
non-amortizable assets shall be deemed disposed of at the earlier of (A) the time of sale of the relevant asset and (B) as generally
provided in clause (iv) of this definition of Valuation Assumptions; and (v) if, at the Early Termination Date, there are Operating
Subsidiaries Group Units that have not been Exchanged, then each such Operating Subsidiaries Group Unit shall be deemed to be Exchanged
for the Market Value of the Class A Shares and the amount of cash that would be transferred if the Exchange occurred on the Early
Termination Date.


 


Section 1.02.    Other
Definitional and Interpretative Provisions. 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. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this
Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in
and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not
otherwise defined therein, shall have the meaning as defined in this Agreement. 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 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,
respectively.


 




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ARTICLE 2


Determination
of Cumulative Realized Tax Benefit


 


Section 2.01.    Basis
Adjustment.


 


(a)      Exchange
Assets. For purposes of this Agreement, as a result of an Exchange, the Operating Subsidiaries (and any direct and indirect
subsidiary of the Operating Subsidiaries that is treated as a partnership for U.S. federal income tax purposes) shall be entitled
to a Basis Adjustment for each Exchange Asset with respect to the Corporation, the amount of which Basis Adjustment will be the
excess, if any, of: (i) the sum of (A) the Market Value of the Class A Shares, cash or the amount of any other consideration transferred
to the Applicable Principal pursuant to the Exchange as payment for the Exchanged Operating Subsidiaries Group Units, to the extent
attributable to such Exchange Assets, plus (B) the amount of payments made pursuant to this Agreement with respect to such Exchange,
to the extent attributable to such Exchange Assets, plus (C) the amount of debt and other liabilities allocated to the Operating
Subsidiaries Group Units acquired pursuant to such Exchange, to the extent attributable to such Exchange Assets; over (ii) the
Corporation’s share of the Operating Subsidiaries’ (or such subsidiary partnership’s) basis for such Exchange
Assets immediately after the Exchange, attributable to the Operating Subsidiaries Group Units exchanged, determined as if (A) the
Operating Subsidiaries (or such subsidiary partnership) were to remain in existence as an entity for Tax purposes, and (B) the
Operating Subsidiaries (or such subsidiary partnership) had not made the election provided by Section 754 of the Code.


 


(b)   
  Imputed Interest. For the avoidance of doubt, payments made under this Agreement shall not be
treated as resulting in a Basis Adjustment to the extent such payments are treated as Imputed Interest.


 


Section 2.02.    Exchange
Basis Schedule. Within 45 calendar days after the filing of the U.S. federal income Tax return of the Corporation for each
Taxable Year, the Corporation shall deliver to each Principal a schedule (the “Exchange Basis Schedule”) that
shows, in reasonable detail, for purposes of federal income Taxes, (a) the actual unadjusted Tax basis of the Exchange Assets as
of each applicable Exchange Date, (b) the Basis Adjustment with respect to the Exchange Assets as a result of the Exchanges effected
in such Taxable Year, calculated in the aggregate, (c) the period or periods, if any, over which the Exchange Assets are amortizable
and/or depreciable, and (d) the period or periods, if any, over which each Basis Adjustment is amortizable and/or depreciable (which,
for non-amortizable assets, shall be based on the Valuation Assumptions). The parties expect that all or substantially all of the
Basis Adjustment with respect to the Exchange Assets will relate to good will and/or going concern value, which adjustment will
be amortized over 15 years for U.S. federal income tax purposes.


 


Section 2.03.    Tax
Benefit Schedule. Within 45 calendar days after the filing of the U.S. federal income Tax return of the Corporation for any
Taxable Year in which there is a Realized Tax Benefit or Realized Tax Detriment, the Corporation shall provide to each Principal
a schedule showing, in reasonable detail, the calculation of the Realized Tax Benefit or Realized Tax Detriment for such Taxable
Year (a “Tax Benefit Schedule”). The Tax Benefit Schedule will become final as provided in Section 2.04(a)
and may be amended as provided in Section 2.04(b) (subject to the procedures set forth in Section 2.04(b)). Notwithstanding
any other provision of this Agreement, the Corporation may seek, at its own expense, an opinion from a nationally recognized law
firm regarding whether any Basis Adjustment with respect to Exchange Assets will result in any amortization or depreciation being
available to the Corporation, and the Corporation shall be permitted to rely on such opinion in creating any Tax Benefit Schedule.


 




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Section 2.04.    Procedures,
Amendments.


 


(a)      Procedure.
Every time the Corporation delivers to the Applicable Principal an applicable Schedule under this Agreement, including any Amended
Schedule delivered pursuant to Section 2.04(b), but excluding any Early Termination Schedule or amended Early Termination
Schedule, the Corporation shall also (i) deliver to the Applicable Principal schedules and work papers providing reasonable detail
regarding the preparation of such Schedule and an Advisory Firm Letter supporting such Schedule and (ii) allow the Applicable Principal
reasonable access, at no cost to the Applicable Principal, to the appropriate representatives at the Corporation and the Advisory
Firm in connection with a review of such Schedule. The applicable Schedule shall become final and binding on all parties unless
the Applicable Principal, within 30 calendar days after receiving an Exchange Basis Schedule or amendment thereto or a Tax Benefit
Schedule or amendment thereto, provides the Corporation with notice of a material objection to such Schedule (“Objection
Notice”) made in good faith. If the parties, for any reason, are unable to successfully resolve the issues raised in
such notice within 30 calendar days of receipt by the Corporation of an Objection Notice with respect to such Exchange Basis Schedule
or Tax Benefit Schedule, the Corporation and the Applicable Principal shall employ the reconciliation procedures as described in
Section 7.09 (the “Reconciliation Procedures”).


 


(b)     Amended
Schedule. The applicable Schedule for any Taxable Year may be amended from time to time by the Corporation (i) in connection
with a Determination affecting such Schedule, (ii) to correct material inaccuracies in the Schedule identified as a result of the
receipt of additional factual information relating to a Taxable Year after the date the Schedule was provided to the Applicable
Principal, (iii) to comply with the Expert’s determination under the Reconciliation Procedures, (iv) to reflect a material
change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to a carryback or carryforward
of a loss or other Tax item to such Taxable Year, (v) to reflect a material change in the Realized Tax Benefit or Realized Tax
Detriment for such Taxable Year attributable to an amended Tax Return filed for such Taxable Year, or (vi) to adjust the Exchange
Basis Schedule to take into account payments made pursuant to this Agreement (such Schedule, an “Amended Schedule”).


 




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ARTICLE 3


Tax Benefit
Payments


 


Section 3.01.    Payments.


 


(a)      Within
ten business days of a Tax Benefit Schedule that was delivered to an Applicable Principal becoming final in accordance with Section
2.04(a), the Corporation shall pay to the Applicable Principal for such Taxable Year the Tax Benefit Payment determined pursuant
to Section 3.01(b). Each such Tax Benefit Payment shall be made by wire transfer of immediately available funds to a bank
account of the Applicable Principal previously designated by such Applicable Principal to the Corporation. For the avoidance of
doubt, no Tax Benefit Payment shall be made in respect of estimated Tax payments, including U.S. federal income Tax payments.


 


(b)      A
“Tax Benefit Payment” means an amount, not less than zero, equal to 85% of the sum of the Net Tax Benefit and
the Interest Amount. The “Net Tax Benefit” for each Taxable Year shall be an amount equal to the excess, if
any, of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year over the total amount of payments previously
made under this Section 3.01, excluding payments attributable to the Interest Amount; provided, however, that
for the avoidance of doubt, no Principal shall be required to return any portion of any previously received Tax Benefit Payment
under any circumstances. The “Interest Amount” for a given Taxable Year shall equal the interest on the Net
Tax Benefit for such Taxable Year calculated at the Agreed Rate from the due date (without regard to extensions) for filing the
Corporation Return with respect to Taxes for the most recently ended Taxable Year until the Payment Date. The Net Tax Benefit and
the Interest Amount shall be determined separately with respect to each separate Exchange. Notwithstanding the foregoing, for each
Taxable Year ending on or after the date of a Change of Control, all Tax Benefit Payments, whether paid with respect to Operating
Subsidiaries Group Units that were Exchanged (i) prior to the date of such Change of Control, or (ii) on or after the date of such
Change of Control, shall be calculated by utilizing the assumptions in clauses (i), (iii) and (iv) of the definition of Valuation
Assumptions, substituting in each case the term “the closing date of a Change of Control” for an “Early Termination
Date”.


 


Section 3.02.    No
Duplicative Payments. It is intended that the provisions of this Agreement will not result in duplicative payment of any amount
(including interest) required under this Agreement. It is also intended that the provisions of this Agreement will result in 85%
of the Corporation’s Cumulative Net Realized Tax Benefit, and the Interest Amount thereon, being paid to the Principals
pursuant to this Agreement. The provisions of this Agreement shall be construed in the appropriate manner to achieve these fundamental
results.


 


Section 3.03.    Pro
Rata Payments. For the avoidance of doubt, to the extent that (i) the Corporation’s deductions with respect to any Basis
Adjustment are limited in a particular Taxable Year or (ii) the Corporation lacks sufficient funds to satisfy or is prevented under
any credit agreement or other arrangement from satisfying its obligations to make all Tax Benefit Payments due in a particular
Taxable Year, the limitation on the deduction, or the Tax Benefit Payments that may be made, as the case may be, shall be taken
into account or made for the Applicable Principal in the same proportion as Tax Benefit Payments would have been made absent the
limitations in clauses (i) and (ii) of this Section 3.03, as applicable.


 




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ARTICLE 4


Termination


 


Section 4.01.    Early
Termination and Breach of Agreement.


 


(a)      The
Corporation may terminate this Agreement with respect to all of the Operating Subsidiaries Group Units held (or previously held
and Exchanged) by all Principals at any time by paying to the Principals the Early Termination Payment; provided, however,
that this Agreement shall terminate only upon the receipt of the Early Termination Payment by all Principals, and provided,
further, that the Corporation may withdraw any notice to execute its termination rights under this Section 4.01(a)
prior to the time at which any Early Termination Payment has been paid. Upon payment of the Early Termination Payments by the Corporation,
neither the Principals nor the Corporation shall have any further payment obligations under this Agreement, other than for any
(i) Tax Benefit Payment agreed by the Corporation acting in good faith and the Applicable Principal to be due and payable but unpaid
as of the Early Termination Notice and (ii) Tax Benefit Payment due for the Taxable Year ending with or including the date of the
Early Termination Notice (except to the extent that the amount described in clause (ii) is included in the Early Termination Payment).
For the avoidance of doubt, if an Exchange occurs after the Corporation makes the Early Termination Payments with respect to all
Principals, the Corporation shall have no obligations under this Agreement with respect to such Exchange, and its only obligations
under this Agreement in such case shall be its obligations to all Principals under Section 4.03(a).


 


(b)      If
the Corporation breaches any of its material obligations under this Agreement, whether as a result of failure to make any payment
when due, failure to honor any other material obligation required hereunder or by operation of law as a result of the rejection
of this Agreement in a case commenced under the Bankruptcy Code, Title 11, U.S.C., or otherwise, then all obligations hereunder
shall be accelerated and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date
of such breach and shall include, but shall not be limited to, (i) the Early Termination Payment calculated as if an Early Termination
Notice had been delivered on the date of a breach, (ii) any Tax Benefit Payment agreed by the Corporation acting in good faith
and any Applicable Principal to be due and payable but unpaid as of the date of a breach, and (iii) any Tax Benefit Payment due
for the Taxable Year ending with or including the date of a breach. Notwithstanding the foregoing, if the Corporation breaches
this Agreement, the Principals shall be entitled to elect to receive the amounts set forth in clauses (i), (ii) and (iii) above
or to seek specific performance of the terms hereof. The parties agree that the failure to make any payment due pursuant to this
Agreement within three months of the date such payment is due shall be deemed to be a breach of a material obligation under this
Agreement for all purposes of this Agreement, and that it shall not be considered to be a breach of a material obligation under
this Agreement to make a payment due pursuant to this Agreement within three months of the date such payment is due.


 


(c)      The
Corporation, each of the Operating Subsidiaries and each of the Principals hereby acknowledge that, as of the date of this Agreement,
the aggregate value of the Tax Benefit Payments cannot reasonably be ascertained for U.S. federal income Tax or other applicable
Tax purposes.


 




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Section 4.02.    Early
Termination Notice. If the Corporation chooses to exercise its right of early termination under Section 4.01 above,
the Corporation shall deliver to each present or former Principal a notice of such intention to exercise such right (“Early
Termination Notice”) and a schedule (the “Early Termination Schedule”) specifying the Corporation’s
intention to exercise such right and showing in reasonable detail the calculation of the Early Termination Payment. The Early Termination
Schedule shall become final and binding on all parties unless an Applicable Principal, within 30 calendar days after receiving
the Early Termination Schedule, provides the Corporation with notice of a material objection to such Schedule made in good faith
(“Material Objection Notice”). If the parties, for any reason, are unable to successfully resolve the issues
raised in such notice within 30 calendar days after receipt by the Corporation of the Material Objection Notice, the Corporation
and the relevant Principal shall employ the Reconciliation Procedures as described in Section 7.09 of this Agreement.


 


Section 4.03.    Payment
upon Early Termination.


 


(a)      Within
ten Business Days after the Early Termination Schedule has become final and binding, the Corporation shall pay to each Applicable
Principal an amount equal to the Early Termination Payment. Such payment shall be made by wire transfer of immediately available
funds to a bank account designated by the Applicable Principal.


 


(b)     The “Early Termination Payment” as of the date of the delivery of an Early Termination Schedule shall
equal with respect to the Applicable Principal the present value, discounted at the Early Termination Rate as of such date,
of all Tax Benefit Payments that would be required to be paid by the Corporation to the Applicable Principal beginning from
the Early Termination Date and assuming that the Valuation Assumptions are applied.


 


ARTICLE
5

Subordination and Late Payments


 


Section 5.01.    Subordination.
Notwithstanding any other provision of this Agreement to the contrary, any Tax Benefit Payment or Early Termination Payment
required to be made by the Corporation to the Principals under this Agreement (an “Exchange Payment”) shall
rank subordinate and junior in right of payment to any principal, interest or other amounts due and payable in respect of any obligations
in respect of indebtedness for borrowed money of the Corporation and its Subsidiaries (“Senior Obligations”)
and shall rank pari passu with all current or future unsecured obligations of the Corporation that are not Senior Obligations.


 


Section 5.02.    Late
Payments by the Corporation. The amount of all or any portion of any Exchange Payment not made to any Principal when due (without
regard to Section 5.01) under the terms of this Agreement shall be payable together with any interest thereon, computed
at the Default Rate and commencing from the date on which such Exchange Payment was due and payable.


 


ARTICLE
6

No Disputes; Consistency; Cooperation


 


Section 6.01.    Principal
Participation in the Corporation and the Operating Subsidiaries’s Tax Matters. Except as otherwise provided herein, the
Corporation shall have full responsibility for, and sole discretion over, all Tax matters concerning the Corporation and the Operating
Subsidiaries, including the preparation, filing or amending of any Tax Return and defending, contesting or settling any issue pertaining
to Taxes. Notwithstanding the foregoing, the Corporation shall notify each relevant Principal of, and keep such Principal reasonably
informed with respect to the portion of any audit of the Corporation and the Operating Subsidiaries by a Taxing Authority the outcome
of which is reasonably expected to affect such Principal’s rights and obligations under this Agreement, and shall provide
to such Principal reasonable opportunity to provide information and other input to the Corporation, the Operating Subsidiaries
and their respective advisors concerning the conduct of any such portion of such audit; provided, however, that the
Corporation and the Operating Subsidiaries shall not be required to take any action that is inconsistent with any provision of
the LLC Agreements.


 




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Section 6.02.    Consistency.
Except upon the written advice of an Advisory Firm or unless there is a Determination to the contrary, the Corporation and
the Applicable Principal agree to report and cause to be reported for all purposes, including U.S. federal, state, local and foreign
Tax purposes and financial reporting purposes, all Tax-related items (including the Basis Adjustment and each Tax Benefit Payment)
in a manner consistent with that specified by the Corporation in any Schedule required to be provided by or on behalf of the Corporation
under this Agreement. Any Dispute concerning such advice shall be subject to the terms of Section 7.09. If an Advisory
Firm is replaced, such replacement Advisory Firm shall be required to perform its services under this Agreement using procedures
and methodologies consistent with the previous Advisory Firm, unless (a) otherwise required by law or (b) the Corporation and
the Applicable Principal agree to the use of other procedures and methodologies.


 


Section 6.03.    Cooperation.
The Applicable Principal shall (a) furnish to the Corporation in a timely manner such information, documents and other materials
as the Corporation may reasonably request for purposes of making any determination or computation necessary or appropriate under
this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy with any Taxing Authority,
(b) make itself available to the Corporation and its representatives to provide explanations of documents and materials and such
other information as the Corporation or its representatives may reasonably request in connection with any of the matters described
in clause (a) above, and (c) reasonably cooperate in connection with any such matter described in clause (a) above. The Corporation
shall reimburse the Applicable Principal for any reasonable third-party costs and expenses incurred pursuant to this Section
6.03.


 


ARTICLE
7

Miscellaneous


 


Section 7.01.    Notices.
Any notice, request, claim, demand, approval, consent, waiver or other communication required or permitted to be given to any
party in connection with this Agreement (each, a “Notice”) shall be in writing and shall be (a) delivered in
person, (b) sent by facsimile transmission (with the original thereof also contemporaneously given by another method specified
in this Section 7.01), (c) sent by a nationally-recognized overnight courier service, or (d) sent by certified or registered
mail (postage prepaid, return receipt requested), at the following locations (or at such other location for a party as shall be
specified to the other parties by like Notice). Any Notice shall only be duly given and effective upon receipt (or refusal of receipt).





 




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If to the Corporation, to:


 


405 Park Ave., 15th Floor


New York, NY 10022


Facsimile: (212) 415-6567


Attention: Legal Counsel


 


with a copy to:


 


Proskauer Rose LLP


Eleven Times Square


New York, New York 10036


Facsimile: (212) 969-2900


	Attention:	Peter M. Fass, Esq.
	 	James P. Gerkis, Esq.


 


if to any of the Operating Subsidiaries, to:


 


405 Park Ave., 15th Floor


New York, NY 10022


Facsimile: (212) 415-6567


Attention: Legal Counsel


 


with a copy to:


 


Proskauer Rose LLP


Eleven Times Square


New York, New York 10036


Facsimile: (212) 969-2900 


	Attention:	Peter M. Fass, Esq.
	 	James P. Gerkis, Esq.


 


if to RCAP Holdings, to:


 


405 Park Ave., 15th Floor


New York, NY 10022


Facsimile: (212) 415-6567


Attention: Legal Counsel


 


with a copy to:


 


Proskauer Rose LLP


Eleven Times Square


New York, New York 10036


Facsimile: (212) 969-2900 


	Attention:	Peter M. Fass, Esq.
	 	James P. Gerkis, Esq.


 




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Section 7.02.    Counterparts.
This Agreement may be executed (including by facsimile transmission) with counterpart signature pages or in any number of
counterparts, each of which shall be deemed to be an original and all of which shall, taken together, be deemed to be one and
the same instrument.


 


Section 7.03.    Entire
Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement among the parties hereto and supersedes
all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties hereto and
their respective heirs, successors, legal representatives and permitted assigns, any rights or remedies hereunder.


 


Section 7.04.    Governing
Law. This Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York, without
regard to the conflict of laws principles thereof that would mandate the application of the laws of another jurisdiction.


 


Section 7.05.    Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, all other 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 that
any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto 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 are consummated as originally contemplated to the greatest extent possible.


 


Section 7.06.    Successors;
Assignment; Amendments; Waivers.


 


(a)      No
Principal may assign this Agreement to any person without the prior written consent of the Corporation; provided, however,
that (i) to the extent Operating Subsidiaries Group Units are transferred in accordance with the terms of the LLC Agreements,
the transferring Principal shall have the option to assign to the transferee of such Operating Subsidiaries Group Units the transferring
Principal’s rights under this Agreement with respect to such transferred Operating Subsidiaries Group Units, as long as
such transferee has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to this Agreement,
in form and substance substantially similar to Exhibit A to this Agreement, agreeing to become a “Principal”
for all purposes of this Agreement, except as otherwise provided in such joinder, and (ii) once an Exchange has occurred, any
and all payments that may become payable to a Principal pursuant to this Agreement with respect to the Exchanged Operating Subsidiaries
Group Units may be assigned to any Person or Persons as long as any such Person has executed and delivered, or, in connection
with such assignment, executes and delivers, a joinder to this Agreement, in form and substance substantially similar to Exhibit
A to this Agreement, agreeing to be bound by Section 7.12 and acknowledging specifically the terms of Section 7.06(b).
For the avoidance of doubt, if a Principal transfers Operating Subsidiaries Group Units but does not assign to the transferee
of such Operating Subsidiaries Group Units such Principal’s rights under this Agreement with respect to such transferred
Operating Subsidiaries Group Units, such Principal shall continue to be entitled to receive the Tax Benefit Payments arising in
respect of a subsequent Exchange of such Operating Subsidiaries Group Units.


 




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(b)      Notwithstanding
the provisions of Section 7.06(a), no transferee described in clause (ii) of the first sentence of Section 7.06(a)
shall have any rights under this Agreement except for the right to enforce its right to receive payments under this Agreement.


 


(c)      No
provision of this Agreement may be amended unless such amendment is approved in writing by each of the Corporation and the Operating
Subsidiaries and by Principals who would be entitled to receive at least two-thirds of the Early Termination Payments payable
to all Principals hereunder if the Corporation had exercised its right of early termination on the date of the most recent Exchange
prior to such amendment (excluding, for purposes of this sentence, all payments made to any Principal pursuant to this Agreement
since the date of such most recent Exchange); provided, however, that no such amendment shall be effective if such
amendment would have a disproportionate effect on the payments certain Principals will or may receive under this Agreement unless
all such Principals disproportionately effected consent in writing to such amendment. No provision of this Agreement may be waived
unless such waiver is in writing and signed by the party against whom the waiver is to be effective.


 


(d)      Except
as otherwise specifically provided herein, all of the terms and provisions of this Agreement shall be binding upon, shall inure
to the benefit of and shall be enforceable by the parties hereto and their respective successors, permitted assigns, heirs, executors,
administrators and legal representatives. The Corporation shall require and cause any direct or indirect successor (whether by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, by written
agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation
would be required to perform if no such succession had taken place. Notwithstanding anything to the contrary herein, if a Principal
transfers its Operating Subsidiaries Group Units to a Permitted Transferee, excluding any other Principal, such Principal shall
have the right, on behalf of such transferee, to enforce the provisions of Sections 2.04, 4.02, or 6.02 with respect to such transferred
Operating Subsidiaries Group Units.


 


Section 7.07.    Titles
and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.


  




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Section 7.08.    Resolution
of Disputes.


 


(a)      Any
and all claims, disputes and other disagreements arising hereunder (each, a “Dispute”) which are not governed
by Section 7.09, including any ancillary claims of any party, arising out of, relating to or in connection with the validity,
negotiation, execution, interpretation, performance or non-performance of this Agreement (including the validity, scope and enforceability
of this Section 7.08 and Section 7.09) shall be governed by this Section 7.08. The parties hereto shall attempt
in good faith to resolve all Disputes by negotiation. If a Dispute between the parties hereto cannot be resolved in such manner,
such Dispute shall, at the request of any party, after providing written notice to the other party or parties to the Dispute, be
submitted to arbitration in New York in accordance with the Commercial Arbitration Rules of the American Arbitration Association
then in effect. The proceeding shall be confidential. The party initially asserting the Dispute (the “Initiating Party”)
shall notify the other party (the “Responding Party”) of the name and address of the arbitrator chosen by the
Initiating Party and shall specifically describe the Dispute in issue to be submitted to arbitration. Within 30 days of receipt
of such notification, the Responding Party shall notify the Initiating Party of its answer to the Dispute, any counterclaim which
it wishes to assert in the arbitration and the name and address of the arbitrator chosen by the Responding Party. If the Responding
Party does not appoint an arbitrator during such 30-day period, appointment of the second arbitrator shall be made by the American
Arbitration Association upon request of the Initiating Party. The two arbitrators so chosen or appointed shall choose a third arbitrator,
who shall serve as president of the panel of arbitrators (the “Panel”) thus composed. If the two arbitrators
so chosen or appointed fail to agree upon the choice of a third arbitrator within 30 days from the appointment of the second arbitrator,
the third arbitrator will be appointed by the American Arbitration Association upon the request of the arbitrators or either of
the parties. In all cases, the arbitrators must be persons who have substantial experience in tax matters and are lawyers admitted
to the practice of law in the State of New York. The arbitrators will act by majority decisions. Any decision of the arbitrators
shall (i) be rendered in writing and shall bear the signatures of at least two arbitrators, and (ii) identify the members of the
Panel, and the time and place of the award granted. Absent fraud or manifest error, any such decision of the Panel shall be final,
conclusive and binding on the parties to the arbitration and enforceable by a court of competent jurisdiction. The expenses of
the arbitration shall be borne equally by the parties to the arbitration; provided, however, that each party shall pay for and
bear the costs of its own experts, evidence and legal counsel, unless the arbitrator rules otherwise in the arbitration. The parties
shall complete all discovery within 30 days after the Panel is composed, shall complete the presentation of evidence to the Panel
within 15 days after the completion of discovery, and a final decision with respect to the matter submitted to arbitration shall
be rendered within 15 days after the completion of presentation of evidence. The parties hereto shall cause to be kept a record
of the proceedings of any matter submitted to arbitration hereunder. Performance under this Agreement shall continue if reasonably
possible during any arbitration proceedings. In addition to monetary damages, the arbitrator shall be empowered to award equitable
relief, including an injunction and specific performance of any obligation under this Agreement. The arbitrator is not empowered
to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary
or similar damages with respect to any Dispute. The award shall be the sole and exclusive remedy between the parties regarding
any claims, counterclaims, issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered and
enforced in any court having jurisdiction over a party or any of its assets.


 


(b)      Notwithstanding
the provisions of Section 7.08(a), the Corporation may bring an action or special proceeding in any court of competent jurisdiction
for the purpose of compelling a party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder,
and/or enforcing an arbitration award and, for the purposes of this Section 7.08(b), each Principal (i) expressly consents to the
application of Section 7.08(c) to any such action or proceeding, (ii) agrees that proof shall not be required that monetary
damages for breach of the provisions of this Agreement would be difficult to calculate and that remedies at law would be inadequate,
and (iii) irrevocably appoints the Corporation as such Principal’s agent for service of process in connection with any such
action or proceeding and agrees that service of process upon such agent, who shall promptly advise such Principal in writing of
any such service of process, shall be deemed in every respect effective service of process upon the Principal in any such action
or proceeding.


 




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(c)      The
parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out
of or in connection with, this Agreement or the transactions contemplated hereby that is brought in accordance with Section
7.08(b) shall be brought and maintained exclusively in the United States District Court for the Southern District of New York
or the Supreme Court of the State of New York located in the County of New York. Each of the parties irrevocably consents to submit
to the personal jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding.
Process in any such suit, action or proceeding in such courts may be served, and shall be effective, on any party anywhere in the
world, whether within or without the jurisdiction of any such court, by any of the methods specified for the giving of Notices
pursuant to Section 7.01. Each of the parties irrevocably waives, to the fullest extent permitted by law, any objection
or defense that it may now or hereafter have based on venue, inconvenience of forum, the lack of personal jurisdiction and the
adequacy of service of process (as long as the party was provided Notice in accordance with the methods specified in Section
7.01) in any suit action or proceeding brought in such courts. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING
OUT OF OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 7.09.    Reconciliation.
If the Corporation and the relevant Principal are unable to resolve a disagreement with respect to the matters governed by
Sections 2.04, 4.02, and 6.02 within the relevant period designated in this Agreement (“Reconciliation
Dispute”), the Reconciliation Dispute shall be submitted for determination to a nationally recognized expert (the “Expert”)
in the particular area of disagreement mutually acceptable to both parties. The Expert shall be a partner in a nationally recognized
accounting firm or a law firm (other than the Advisory Firm), and the Expert shall not, and the firm that employs the Expert shall
not, have any material relationship with either the Corporation or the relevant Principal or other actual or potential conflict
of interest. If the parties are unable to agree on an Expert within 15 days of receipt by the respondent(s) of written notice of
a Reconciliation Dispute, the Expert shall be appointed by the International Chamber of Commerce Centre for Expertise. The Expert
shall resolve any matter relating to the Exchange Basis Schedule or an amendment thereto or the Early Termination Schedule or an
amendment thereto within 30 calendar days and shall resolve any matter relating to a Tax Benefit Schedule or an amendment thereto
within 15 calendar days or as soon thereafter as is reasonably practicable, in each case after the matter has been submitted to
the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any payment that is the
subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a disagreement
is due, the undisputed amount shall be paid on such date and such Tax Return may be filed as prepared by the Corporation, subject
to adjustment or amendment upon resolution. If this reconciliation provision is utilized, the fees of the Expert shall be paid
in proportion to the manner in which the dispute is resolved, such that, for example, if the entire dispute is resolved in favor
of the Corporation, the relevant Principal shall pay all of the fees, or if the items in dispute are resolved 50% in favor of the
Corporation and 50% in favor of the relevant Principal, each of the Corporation and the relevant Principal shall pay 50% of the
fees of the Expert. Any Dispute as to whether a Dispute is a Reconciliation Dispute within the meaning of this Section 7.09
shall be decided by the Expert. The Expert shall finally determine any Reconciliation Dispute and the determinations of the Expert
pursuant to this Section 7.09 shall be binding on the Corporation and the relevant Principal and may be entered and enforced
in any court having jurisdiction.


 




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Section 7.10.    Withholding.
The Corporation shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as
the Corporation is required to deduct and withhold with respect to the making of such payment under the Code or any provision of
state, local or foreign Tax law. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by
the Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Applicable
Principal.


 


Section 7.11.    Admission
of the Corporation into a Consolidated Group; Transfers of Corporate Assets.


 


(a)      If
the Corporation becomes a member of an affiliated or consolidated group of corporations that files a consolidated income Tax return
pursuant to Sections 1501, et seq. of the Code or any corresponding provisions of state, local or foreign law, then: (i)
the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination
Payments and other applicable items hereunder shall be computed with reference to the consolidated Taxable income of the group
as a whole.


 


(b)      If
any entity that is obligated to make an Exchange Payment hereunder transfers one or more assets to a corporation with which such
entity does not file a consolidated Tax return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the
amount of any Exchange Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit
of such entity) due hereunder, shall be treated as having disposed of such asset in a fully Taxable transaction on the date of
such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed
asset, plus (i) the amount of debt to which such asset is subject, in the case of a contribution of an encumbered asset or (ii)
the amount of debt allocated to such asset, in the case of a contribution of a partnership interest.


 


Section 7.12.    Confidentiality.


 


(a)      Each
Principal and assignee acknowledges and agrees that the information of the Corporation and of its Affiliates is confidential and,
except in the course of performing any duties as necessary for the Corporation and its Affiliates, as required by law or legal
process or to enforce the terms of this Agreement, such person shall keep and retain in the strictest confidence and not disclose
to any Person any confidential matters, acquired pursuant to this Agreement, of the Corporation and its Affiliates and successors,
concerning the Operating Subsidiaries and its Affiliates and successors or the other Principals, learned by the Principal heretofore
or hereafter. This Section 7.12(a) shall not apply to (i) any information that has been made publicly available by the Corporation
or any of its Affiliates, becomes public knowledge (except as a result of an act of such Principal in violation of this Agreement)
or is generally known to the business community and (ii) the disclosure of information to the extent necessary for a Principal
to prepare and file his or her Tax returns, to respond to any inquiries regarding the same from any Taxing authority or to prosecute
or defend any action, proceeding or audit by any Taxing authority with respect to such returns. Notwithstanding anything to the
contrary herein, each Principal and assignee (and each employee, representative or other agent of such Principal or assignee, as
applicable) may disclose to any and all Persons, without limitation of any kind, the Tax treatment and Tax structure of the Corporation,
the Operating Subsidiaries, the Principals and their Affiliates, and any of their transactions, and all materials of any kind (including
opinions or other Tax analyses) that are provided to the Principals relating to such Tax treatment and Tax structure.


 




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(b)      If
a Principal or assignee commits a breach, or threatens to commit a breach, of any of the provisions of Section 7.12(a),
the Corporation shall have the right and remedy to have the provisions of Section 7.12(a) specifically enforced by injunctive
relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security, it being acknowledged
and agreed that any such breach or threatened breach shall cause irreparable injury to the Corporation or any of its Subsidiaries
or the other Principals and the accounts and funds managed by the Corporation and that money damages alone shall not provide an
adequate remedy to such Persons. Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies
available at law or in equity.


 


Section 7.13.    LLC
Agreement. To the extent this Agreement imposes obligations upon a particular Operating Subsidiary,
this Agreement shall be treated as part of the relevant LLC Agreement as described in Section 761(c) of the Code and Sections
1.704−1(b)(2)(ii)(h) and 1.761−1(c) of the Treasury Regulations.


 


Section 7.14.    Partnerships.
The Corporation hereby agrees that, to the extent it acquires a general partnership interest, managing member interest or similar
interest in any Person after the date hereof, it shall cause such Person to execute and deliver a joinder to this Agreement and
such Person shall be treated as a “partnership” for all purposes of this Agreement.


 


[Signature pages follow.]


 




    	21



    	 



    

 


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


 


	 	RCS CAPITAL CORPORATION
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:
	 	 	 
	 	RCAP HOLDINGS, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:
	 	 	 
	 	REALTY CAPITAL SECURiTIES, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:
	 	 	 
	 	RCS ADVISORY SERVICES, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:
	 	 	 
	 	AMERICAN NATIONAL STOCK TRANSFER, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:


 




    	 



    	 



    

 


Exhibit A


 


JOINDER


 


THIS JOINDER dated as of [       ],
2013 ) (this “Joinder”), among RCS Capital Corporation, a Delaware corporation (the “Corporation”),
Realty Capital Securities, LLC, a Delaware limited liability company, RCS Advisory Services, LLC, a Delaware limited liability
company, American National Stock Transfer, LLC, a Delaware limited liability company, and [           ]
(“Permitted Transferee”), to the Tax Receivable Agreement (as defined below).


 


WHEREAS, on [               ],
the Permitted Transferee acquired (the “Acquisition”) Operating Subsidiaries Group Units (as defined in the
Tax Receivable Agreement) and the corresponding shares of Class B common stock of the Corporation (collectively, “Interests”
and, together with all other Interests hereinafter acquired by the Permitted Transferee from Transferor and its Permitted Transferees
(as defined in the Tax Receivable Agreement dated as of [       ], 2013 (as the same may be
amended from time to time, the “Tax Receivable Agreement”), among the Corporation, the Operating Subsidiaries
and the other parties thereto), the “Acquired Interests”) from [          ]
(“Transferor”); and


 


WHEREAS, Transferor, in connection with
the Acquisition, has required Permitted Transferee to execute and deliver this Joinder pursuant to Section 7.06 of the Tax Receivable
Agreement;


 


NOW, THEREFORE, in consideration of the
foregoing and the respective covenants and agreements set forth herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally bound, Permitted Transferee hereby agrees as follows:


 


Section 1.01.    Definitions.
To the extent capitalized words used in this Joinder are not defined in this Joinder, such words shall have the respective meanings
set forth in the Tax Receivable Agreement.


 


Section 1.02.    Joinder.
Permitted Transferee hereby acknowledges and agrees to become a “Principal” (as defined in the Tax Receivable Agreement)
for all purposes of the Tax Receivable Agreement, including but not limited to, being bound by Sections 2.04, 4.02, 6.01, 6.02
and 7.12 of the Tax Receivable Agreement, with respect to the Acquired Interests, and any other Interests Permitted Transferee
acquires hereafter. Permitted Transferee hereby acknowledges the terms of Section 7.06(b) of the Tax Receivable Agreement.


 


Section 1.03.    Notice.
Any notice, request, consent, claim, demand, approval, waiver or other communication hereunder to Permitted Transferee shall be
delivered or sent to Permitted Transferee at the address set forth on the signature page hereto in accordance with Section 7.01
of the Tax Receivable Agreement.


 




    	 



    	 



    

 


Section 1.04.    Governing
Law. THIS JOINDER SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD MANDATE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


 


IN WITNESS WHEREOF, this Joinder has been
duly executed and delivered by Permitted Transferee as of the date first above written.


 


	 	[PERMITTED TRANSFEREE]
	 	 
	 	 
	 	Name:  
	 	Address:
	 	 
	 	Address for Notices:
	 	 
	 	[                             ]