RELEASE
Exhibit 19
Execution Version
This RELEASE, dated as of November 8, 2015 (this “Agreement”), is entered into by and among (i) AR Capital, LLC (“AR Capital”), (ii) Xxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xx. and Xxxxx X. 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.”
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 Xxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xx. and Xxxxx X. 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.
1. Mutual Releases; Covenants Not to Xxx.
(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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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.
If to AR Capital or any of the ARC Principals, addressed as follows:
000 Xxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
with copies (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxxx
Xxxxxxxxx Xxxxxx
Email: xxxxxxxxx@xxxxxx.xxx
xxxxxxx@xxxxxx.xxx
If to RCAP or RCS Holdings, to it at:
RCS Capital Corporation
000 Xxxx Xxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Email: XXxxxxx@xxxxxxxxxx.xxx
Fax: 000-000-0000
with a copy (which shall not constitute notice) to:
Dechert LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Email: Xxxxxx.Xxxxxxxx@xxxxxxx.xxx
Fax: (000) 000-0000
If to Luxor, to it at:
Luxor Capital Partners, LP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Email: xxxxx@xxxxxxxx.xxx
Facsimile: (000) 000-0000
with a copy to:
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
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Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxxxxx.xxx
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.
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.
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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 Xxxxxxxx Xxxxxxxx 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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RCS Capital Corporation | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx | ||
Title: Chief Financial Officer | ||
RCS Capital Holdings, LLC | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxx | ||
Title: Chief Financial Officer | ||
Luxor Capital Partners LP | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: Xxxxxx Xxxxxx | ||
Title: General Counsel | ||
Luxor Capital Group, LP, Investment Manager | ||
AR Capital, LLC | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: Xxxxxxx X. Xxxxxx | ||
Title: Managing Member | ||
By: | /s/ Xxxxxxxx X. Xxxxxxxx | |
Xxxxxxxx X. Xxxxxxxx | ||
By: | /s/ Xxxxx X. Xxxxx | |
Xxxxx X. Xxxxx | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Xxxxxxx X. Xxxxxx |
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By: | /s/ Xxxxxx X. Xxxx, Xx. | |
Xxxxxx X. Xxxx, Xx. | ||
By: | /s/ Xxxxx X. Block | |
Xxxxx X. Block |
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