Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 1 of 16 EXHIBIT B Order
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 2 of 16 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) RCS CAPITAL CORPORATION, et al., ) Case No. 16-10223 (MFW) ) ) Jointly Administered Debtors. 1 ) ) Ref. Docket No. SECOND ORDER, PURSUANT TO SECTIONS 105(a) and 365(a) OF THE BANKRUPTCY CODE, AUTHORIZING THE DEBTORS TO REJECT CERTAIN EXECUTORY CONTRACTS NUNC PRO TUNC TO FEBRUARY 24, 2016 FOR THE SCHEDULE 1 CONTRACTS AND FEBRUARY 11, 2016 FOR THE SCHEDULE 2 CONTRACTS Upon consideration of the motion (the Motion ) 2 of the Debtors for the entry of an order, pursuant to sections 105(a) and 365(a) of the Bankruptcy Code, authorizing the Debtors to: (i) reject those certain executory contracts set forth on Schedule 1 to this Order (the Schedule 1 Contracts ), in each case effective as of February 24, 2016; and (ii) reject those certain executory contracts set forth on Schedule 2 to this Order (the Schedule 2 Contracts, and together with the Schedule 1 Contracts, the s ), in each case effective as of February 11, 2016; and it appearing that the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order; and the Court having found that good and sufficient cause exists for granting the Motion; and upon consideration of the First Day Declaration and the Second Rejection Declaration and the files and records in these chapter 11 1 The Debtors in these chapter 11 cases, along with the last four digits of their respective federal tax identification numbers, are: RCS Capital Corporation (4716); American National Stock Transfer, LLC (3206); Braves Acquisition, LLC (6437); DirectVest, LLC (9461); J.P. Turner & Company Capital Management, LLC (7535); RCS Advisory Services, LLC (4319); RCS Capital Holdings, LLC (9238); Realty Capital Securities, LLC (0821); SBSI Insurance Agency of Texas, Inc. (9203); SK Research, LLC (4613); Trupoly, LLC (5836); and We R Crowdfunding, LLC (9785). The Debtors corporate headquarters and mailing address is located at 405 Park Avenue, 12th Floor,. 2 Each capitalized term used but not otherwise defined herein shall have the meaning ascribed to it in the Motion.
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 3 of 16 cases; and upon the arguments and statements in support of the Motion presented at the hearing before the Court; and it appearing that the relief requested is in the best interests of the Debtors estates, their creditors, and other parties-in-interest and is an appropriate exercise of the Debtors business judgment; and it appearing that notice of the Motion was adequate and proper under the circumstances and that no further or other notice need be given; it is hereby ORDERED that the Motion is GRANTED as set forth herein; and it is further ORDERED that pursuant to sections 105(a) and 365(a) of the Bankruptcy Code and Bankruptcy Rule 6006, the s are hereby rejected by the Debtors, with such rejection being effective as of February 24, 2016 for the Schedule 1 Contracts and February 11, 2016 for the Schedule 2 Contracts; and it is further ORDERED that any person or entity that holds a claim that arises from the s must file a proof of claim based on such rejection by the later of: (i) the last date and time for each person or entity to file proofs of claim based on prepetition claims against any of the Debtors as set by an order of the Court; or (ii) 35 days after the entry of this Order; and it is further ORDERED that nothing in this Order shall impair, prejudice, waive, or otherwise affect any rights of the Debtors or their estates to assert that any claims for damages arising from the Debtors rejection of the s are limited to any remedies available under any applicable termination provisions of such s, or that any such claims are obligations of a third party and not those of the Debtors or their estates; and it is further ORDERED that the Debtors are authorized to execute and deliver all instruments and documents, and take such other actions as may be necessary or appropriate, to implement and effectuate the relief granted by this Order; and it is further 2
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 4 of 16 ORDERED that the rights of the Debtors and their estates to assert that the s rejected hereby expired by their own terms or were terminated prior to the date hereof are fully preserved, and the Debtors and their estates do not waive any claims that they may have against the Counterparties, whether or not such claims arise under, are related to the rejection of, or are independent of the s; and it is further ORDERED that this Order is immediately effective and enforceable, notwithstanding the possible applicability of Bankruptcy Rule 6004(h) or otherwise; and it is further further ORDERED that the requirements of Bankruptcy Rule 6006 are satisfied; and it is ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Order. Dated: March, 2016 Wilmington, Delaware HONORABLE MARY F. WALRATH UNITED STATES BANKRUPTCY JUDGE 3
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 5 of 16 Schedule 1 Reject Nunc Pro Tunc to February 24, 2016 American Realty Capital Advisors, LLC 3 Copley Place, Suite 3300 Boston, MA 02116 Attn: Amy Spiegel (i) License Agreement -- Short Form, dated as of December 7, 2009, between DST Technologies, Inc. and American Realty Capital Advisors, LLC (the DST License Agreement ), as assigned to American National Stock Transfer, LLC by American Realty Capital Advisors, LLC pursuant to that certain Assignment and Assumption of License Agreement dated as of October 22, 2014 (the DST Assignment Agreement ); and (ii) the DST Assignment Agreement. American Realty Capital Healthcare Trust, Inc. Attn: Edward Lange, Chief Financial Officer Transaction Management Services Agreement, dated May 23, 2014, among RCS Advisory Services, LLC, American Realty Capital Healthcare Trust, Inc., and American Realty Capital Healthcare Trust Operating Partnership, L.P. American Realty Capital Healthcare Trust Operating Partnership, L.P. 405 Park Avenue, 14th Floor Transaction Management Services Agreement, dated May 23, 2014, among RCS Advisory Services, LLC, American Realty Capital Healthcare Trust, Inc., and American Realty Capital Healthcare Trust Operating Partnership, L.P.
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 6 of 16 American Realty Capital Hospitality Operating Partnership, L.P. 405 Park Avenue, 14th Floor Transaction Management Services Agreement, dated May 20, 2014, among American Realty Capital Hospitality Trust, Inc., as the Company, American Realty Capital Hospital Operating Partnership, L.P., as the OP, and RCS Advisory Services, LLC, as the Service Provider. American Realty Capital Hospitality Trust, Inc. Attn: Nicholas A. Radesca, Chief Financial Officer Transaction Management Services Agreement, dated May 20, 2014, among American Realty Capital Hospitality Trust, Inc., as the Company, American Realty Capital Hospital Operating Partnership, L.P., as the OP, and RCS Advisory Services, LLC, as the Service Provider. American Realty Capital New York Recovery REIT, Inc. Attn: Edward M. Weil, Jr., President and Chief Operating Officer Transaction Management Services Agreement, dated December 4, 2013, by and between American Realty Capital New York Recovery REIT, Inc., as the Company, and RCS Advisory Services, LLC, as the Service Provider. 2
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 7 of 16 American Realty Capital Operating Partnership V, L.P. 405 Park Avenue, 14th Floor Transaction Services Management Agreement, dated May 13, 2014, among RCS Advisory Services, LLC, American Realty Capital Trust V, Inc., and American Realty Capital Operating Partnership V, L.P. American Realty Capital Trust V, Inc. Attn: Nicholas A. Radesca, Chief Financial Officer Transaction Services Management Agreement, dated May 13, 2014, among RCS Advisory Services, LLC, American Realty Capital Trust V, Inc., and American Realty Capital Operating Partnership V, L.P. American Realty Capital Trust V, Inc. New York, New York Attention: Edward M. Weil, Jr., President and Chief Operating Officer Advisor and Information Agent Services Agreement, dated as of May 13, 2014, by and between American Realty Capital Trust V, Inc., as the Company, and Realty Capital Securities, LLC and American National Stock Transfer, LLC, as the Service Providers. 3
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 8 of 16 Apollo Management Holdings, L.P. 9 West 57th Street, 43rd Floor New York, New York 10019 Attn: John J. Suydam Email: jsuydam@apollolp.com Debevoise & Plimpton LLP 919 Third Avenue Attn: Jeffery J. Rosen Email: jrosen@debevoise.com Attn: Gregory V. Gooding Email: ggooding@debevoise.com Amended and Restated Membership Interest Purchase Agreement, dated as of November 8, 2015, by and among RCS Capital Corporation, RCS Capital Holdings, LLC, and Apollo Management Holdings, L.P. AR Capital, LLC 405 Park Avenue 15th Floor Fax No.: (212) 415-6567 11 Times Square New York, NY 10036 Fax No.: (212) 969-2900 Attn: James P. Gerkis, Esq. Services Agreement, dated as June 10, 2013, between AR Capital, LLC and RCS Advisory Services, LLC. DST Systems, Inc. 1055 Broadway, 7th Floor Kansas City, Missouri 64105 Attn: Group Vice President Client Services / Mutual Funds Fax No.: (816) 435-8537 DST Systems, Inc. 333 West 11th Street, 5th Floor Kansas City, Missouri 64105 Attn: Legal Department Fax No.: (816) 435-8630 Interim Agreement, dated as of August 30, 2013, among DST Systems, Inc. and American National Stock Transfer, LLC. 4
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 9 of 16 DST Systems, Inc. 1055 Broadway, 10th Floor Kansas City, Missouri 64105 Attn: FAN Mail Services Fax No.: (816) 435-3777 DST Systems, Inc. 333 W. 11th Street, 5th floor Kansas City, Missouri 64105 Attn: Legal Department Fax No.: (816) 435-8630 Master Agreement for DST Fan Mail Services NON TA2000 Mutual Fund / REIT, dated as of May 2, 2014, between DST Systems, Inc. and American National Stock Transfer, LLC. DST Technologies, Inc. 330 West 9th Street Kansas City, Missouri 64105-1594 Attn: Vice President (i) DST License Agreement; and (ii) the DST Assignment Agreement. Gemini Fund Services, LLC 17605 Wright Street, Suite 2 Omaha, NE 68130 Attn: Andrew Rogers, Chief Executive Officer Telephone: (631) 470-2669 Email: andrewr@geminifund.com Gemini Fund Services, LLC 17605 Wright Street, Suite 2 Omaha, NE 68130 Attn: Brian Nielsen, Esq. Telephone: (402) 895-1600 brian@nstar-financial.com Fund Services Agreement, dated as of April 11, 2013, between American National Stock Transfer, LLC and Gemini Fund Services, LLC. 5
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 10 of 16 Gemini Fund Services, LLC 17605 Wright Street, Suite 2 Omaha, NE 68130 Attn: Andrew Rogers, Chief Executive Officer Telephone: (631) 470-2669 Email: andrewr@geminifund.com Gemini Fund Services, LLC 17605 Wright Street, Suite 2 Omaha, NE 68130 Attn: Brian Nielsen, Esq. Telephone: (402) 895-1600 brian@nstar-financial.com Fund Sub-Services Agreement, dated as of February 10, 2014, between American National Stock Transfer, LLC and Gemini Fund Services, LLC. New York REIT, Inc. 405 Park Avenue, 14th Floor Transfer Agent Agreement, dated as of September 1, 2014, between New York REIT, Inc. and American National Stock Transfer, LLC. Wildermuth Endowment Strategy Fund 11525 Park Woods Circle Alpharetta, GA 30309-3424 Attn: Daniel Wildermuth, President Telephone: 678-356-1100 Email: dwildermuth@wildermuthadvisory.com Fund Services Agreement, dated as of December 12, 2014, between Wildermuth Endowment Strategy Fund and American National Stock Transfer, LLC. 6
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 11 of 16 Schedule 2 Reject Nunc Pro Tunc to February 11, 2016 American Energy Capital Partners, LP 405 Park Avenue, 12th Floor Attn: Edward M. Weil, Jr., Chief Executive Officer and President - and - 405 Park Avenue Attn: Nicholas S. Schorsch - and - 1055 Broadway, 7th Floor Kansas City, MO 64105 Attn: Group Vice President-Client Services (i) Joinder No. 2 to Omnibus Transfer Agency Agreement, dated as of April 17, 2014, by and between American Energy Capital Partners, LP and American National Stock Transfer, LLC; and (ii) Omnibus Transfer Agency Agreement, dated as of March 1, 2013, among American National Stock Transfer, LLC, as Agent, and American Realty Capital -- Retail Centers of America, Inc., American Realty Capital Daily Net Asset Value Trust, Inc., American Realty Capital Global Trust, Inc., American Realty Capital Healthcare Trust, Inc., American Realty Capital Healthcare Trust II, Inc., American Realty Capital New York Recovery REIT, Inc., American Realty Capital Trust IV, Inc., American Realty Capital Trust V, Inc., ARC Realty Finance Trust, Inc., and Business Development Corporation of America, each as a Company thereunder ( Omnibus Transfer Agency Agreement ). American Real Estate Income Fund Attn: John H. Grady, President Telephone: (646) 861-7729 jhgrady@rcsecurities.com 1001 Pennsylvania Ave., NW Suite 400S Washington, DC 20004 Attn: Gregory Merz Telephone: (202) 416-5846 gmerz@proskauer.com Fund Services Agreement, dated as of February 10, 2014, between American Real Estate Income Fund and American National Stock Transfer, LLC. 7
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 12 of 16 American Realty Capital -- Retail Centers of America, Inc. American Realty Capital -- Retail Centers of America II, Inc. 405 Park Avenue Attn: Nicholas S. Schorsch (i) Joinder No. 5 to Omnibus Transfer Agency Agreement, dated as of July 10, 2014, by and between American Realty Capital New York REIT II, Inc., American Realty Capital -- Retail Centers of America II, Inc., American Realty Capital Healthcare Trust III, Inc., American Realty Capital Global Trust II, Inc., New York REIT Trust, Inc., and American National Stock Transfer, LLC ( Joinder No. 5 to Omnibus Transfer Agency Agreement ); and (ii) Omnibus Transfer Agency Agreement. American Realty Capital Daily Net Asset Value Trust, Inc. American Realty Capital Global Trust, Inc. American Realty Capital Global Trust II, Inc. 405 Park Avenue, 12th Floor Attn: Nicholas S. Schorsch (i) Joinder No. 5 to Omnibus Transfer Agency Agreement; and (ii) Omnibus Transfer Agency Agreement. American Realty Capital Healthcare Trust, Inc. 8
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 13 of 16 American Realty Capital Healthcare Trust II, Inc. American Realty Capital Healthcare Trust III, Inc. 405 Park Avenue, 14th Floor Attn: Nicholas S. Schorsch (i) Joinder No. 5 to Omnibus Transfer Agency Agreement; and (ii) Omnibus Transfer Agency Agreement. American Realty Capital Hospitality Trust, Inc. 405 Park Avenue, 4th Floor Attention: Edward T. Hoganson, Chief Financial Officer, Treasurer and Secretary - and - Attn: Nicholas A. Radesca, Chief Financial Officer - and - 1055 Broadway, 7th Floor Kansas City, MO 64105 Attn: Group Vice President-Client Services (i) Joinder No. 1 to Omnibus Transfer Agency Agreement, dated as of February 4, 2014, by and between American Realty Capital Hospitality Trust, Inc. and American National Stock Transfer, LLC; and (ii) Omnibus Transfer Agency Agreement. 11 Times Square New York, NY 10036 9
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 14 of 16 American Realty Capital New York City REIT, Inc. 405 Park Avenue Attn: Nicholas S. Schorsch - and - 1055 Broadway, 7th Floor Kansas City, MO 64105 Attn: Group Vice President-Client Services (i) Joinder No. 3 to Omnibus Transfer Agency Agreement, dated as of April 17, 2014, by and between American Realty Capital New York City REIT, Inc. and American National Stock Transfer, LLC; and (ii) Omnibus Transfer Agency Agreement. American Realty Capital New York Recovery REIT, Inc. American Realty Capital New York REIT II, Inc. 1055 Broadway, 7th Floor Kansas City, MO 64105 Attn: Group Vice President-Client Services (i) Joinder No. 5 to Omnibus Transfer Agency Agreement; and (ii) Omnibus Transfer Agency Agreement. American Realty Capital Trust IV, Inc. American Realty Capital Trust V, Inc. ARC Realty Finance Trust, Inc. 10
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 15 of 16 BDCA Senior Capital, Inc. 405 Park Avenue Attn: Nicholas S. Schorsch - and - 1055 Broadway, 7th Floor Kansas City, MO 64105 Attn: Group Vice President-Client Services (i) Joinder No. 4 to Omnibus Transfer Agency Agreement, dated as of May 19, 2014, by and between BDCA Senior Capital, Inc. and American National Stock Transfer, LLC; and (ii) Omnibus Transfer Agency Agreement. Business Development Corporation of America New York REIT Trust, Inc. 405 Park Avenue Attn: Nicholas S. Schorsch (i) Joinder No. 5 to Omnibus Transfer Agency Agreement; and (ii) Omnibus Transfer Agency Agreement. Phillips Edison - ARC Grocery Center Operating Partnership II, L.P. 11501 Northlake Drive Cincinnati, Ohio 45249 Attn: R. Mark Addy Attn: James P. Gerkis, Esq. Transfer Agent Services Agreement, dated as of January 3, 2014, between Phillips Edison - ARC Grocery Center REIT II, Inc., as the REIT, Phillips Edison - ARC Grocery Center Operating Partnership II, L.P., as the Company, and American National Stock Transfer, LLC, as Transfer Agent. 11
Case 16-10223-MFW Doc 218-3 Filed 02/24/16 Page 16 of 16 Phillips Edison - ARC Grocery Center REIT II, Inc. 11501 Northlake Drive Cincinnati, Ohio 45249 Attn: R. Mark Addy, Co-President and Chief Operating Officer Attn: James P. Gerkis, Esq. Transfer Agent Services Agreement, dated as of January 3, 2014, between Phillips Edison - ARC Grocery Center REIT II, Inc., as the REIT, Phillips Edison - ARC Grocery Center Operating Partnership II, L.P., as the Company, and American National Stock Transfer, LLC, as Transfer Agent. Realty Capital Income Funds Trust Attn: John H. Grady, President Telephone: 1-877-373-2522 Email: jgrady@rcssecurities.com Fund Services Agreement, dated as of April 11, 2013, between Realty Capital Income Funds Trust and American National Stock Transfer, LLC. Retail Credit Property Trust, Inc. 405 Park Avenue 12th Floor Attn: Nicholas Radesca - and - 1055 Broadway, 7th Floor Kansas City, MO 64105 Attn: Group Vice President-Client Services (i) Joinder No. 6 to Omnibus Transfer Agency Agreement, dated as of July 17, 2015, by and between Retail Credit Property Trust, Inc. and American National Stock Transfer, LLC; and (ii) 12