CUSIP No. 25272T 104
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SCHEDULE 13D
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Page 2 of 12
|
1
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NAMES OF REPORTING PERSONS
Guggenheim Capital, LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) o
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
11,338,566 (1)
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
11,338,566 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,338,566 (1)
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.0% (2)
|
14
|
TYPE OF REPORTING PERSON
OO, HC
|
(1) | Includes 4,535,426 shares of common stock which 1818 Partners, LLC may acquire from DRP Holdco, LLC upon exercise of a fully-exercisable call option. |
(2) | Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D. |
CUSIP No. 25272T 104
|
SCHEDULE 13D
|
Page 3 of 12
|
1
|
NAMES OF REPORTING PERSONS
Guggenheim Partners, LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) o
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
11,338,566 (1)
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
11,338,566 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,338,566 (1)
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.0% (2)
|
14
|
TYPE OF REPORTING PERSON
OO, HC
|
(1) | Includes 4,535,426 shares of common stock which 1818 Partners, LLC may acquire from DRP Holdco, LLC upon exercise of a fully-exercisable call option. |
(2) | Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D. |
CUSIP No. 25272T 104
|
SCHEDULE 13D
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Page 4 of 12
|
1
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NAMES OF REPORTING PERSONS
Guggenheim Partners Investment Management Holdings, LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) o
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
11,338,566 (1)
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
11,338,566 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,338,566 (1)
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.0% (2)
|
14
|
TYPE OF REPORTING PERSON
OO, HC
|
(1) | Includes 4,535,426 shares of common stock which 1818 Partners, LLC may acquire from DRP Holdco, LLC upon exercise of a fully-exercisable call option. |
(2) | Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D. |
CUSIP No. 25272T 104
|
SCHEDULE 13D
|
Page 5 of 12
|
1
|
NAMES OF REPORTING PERSONS
Guggenheim Partners Investment Management, LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) x
(b) o
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) o
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
11,338,566 (1)
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
11,338,566 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,338,566 (1)
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.0% (2)
|
14
|
TYPE OF REPORTING PERSON
OO
|
(1) | Includes 4,535,426 shares of common stock which 1818 Partners, LLC may acquire from DRP Holdco, LLC upon exercise of a fully-exercisable call option. |
(2) | Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D. |
Item 1. | Security and Issuer |
Item 2. | Identity and Background |
Item 3. | Source and Amount of Funds or Other Consideration. |
Item 4. | Purpose of Transaction. |
Item 5. | Interest in Securities of the Issuer. |
Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer |
Item 7. | Material to be Filed as Exhibits. |
1. | Form of Exchange Agreement (incorporated by reference to Exhibit 10.42 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Issuer on July 9, 2013) |
2. | Call Option Agreement, effective as of July 21, 2011, by and among DRP Holdco, LLC, 1818 Partners, LLC and, solely for the purposes set forth in Sections 7, 8 and 9 thereof, Diamond Resorts Parent, LLC* |
3. | Diamond Resorts International, Inc. 2013 Incentive Compensation Plan (incorporated by reference to Exhibit 10.48 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Issuer on July 9, 2013) |
4. | Form of Stockholders Agreement (incorporated by reference to Exhibit 10.45 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Issuer on July 9, 2013) |
5. | Form of Director Designation Agreement (incorporated by reference to Exhibit 10.44 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Issuer on July 9, 2013) |
6. | Chautauqua Management, LLC Guaranty, dated as of July 18, 2013* |
7. | Best Amigos Partners, LLC Guaranty, dated as of July 18, 2013* |
8. | Trivergance Diamond Sub, LLC Guaranty, dated as of December 12, 2011* |
9. | LDK Holdco, LLC Guaranty, dated as of December 12, 2011* |
10. | Form of Lock-Up Agreement (incorporated by reference to Exhibit B to Exhibit 1.1 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Issuer on July 9, 2013) |
11. | Second Amended and Restated Registration Rights Agreement (incorporated by reference to Exhibit 10.6 to Diamond Resorts Corporation’s Current Report on Form 8-K filed by the Issuer on July 26, 2011) |
12. | Joint Filing Agreement of the Reporting Persons* |
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GUGGENHEIM CAPITAL, LLC
|
|
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By:
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/s/ Robert Saperstein
|
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Name:
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Robert Saperstein
|
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Title:
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Managing Director
|
|
|
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GUGGENHEIM PARTNERS, LLC
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By:
|
Guggenheim Capital, LLC, parent company
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By:
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/s/ Robert Saperstein
|
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Name:
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Robert Saperstein
|
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Title:
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Managing Director
|
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GUGGENHEIM PARTNERS INVESTMENT MANAGEMENT HOLDINGS, LLC
|
|
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By:
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Guggenheim Capital, LLC, parent company
|
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By:
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/s/ Robert Saperstein
|
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Name:
|
Robert Saperstein
|
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Title:
|
Managing Director
|
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|
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GUGGENHEIM PARTNERS INVESTMENT MANAGEMENT, LLC
|
|
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By:
|
Guggenheim Capital, LLC, parent company
|
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By:
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/s/ Robert Saperstein
|
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Name:
|
Robert Saperstein
|
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Title:
|
Managing Director
|
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THE UNITHOLDER:
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||
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DRP HOLDCO, LLC
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||
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By:
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/s/ Zachary D. Warren
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Name:
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Zachary D. Warren
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Title:
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Authorized Person
|
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THE OPTIONHOLDER:
|
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1818 PARTNERS, LLC
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By:
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Chautauqua Management, LLC
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Its:
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Member
|
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By:
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/s/ David F. Palmer
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Name:
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David F. Palmer
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Its:
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Sole Manager
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EQUITYHOLDERS OF OPTIONHOLDER:
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CHAUTAUQUA MANAGEMENT, LLC
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By:
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/s/ David F. Palmer
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Name: David F. Palmer
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Its: Manager
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PRAESUMO PARTNERS, LLC
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By:
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/s/ Lowell D. Kraff
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Name: Lowell D. Kraff
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Its: Manager
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CLOOBECK COMPANIES, LLC
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By:
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/s/ Stephen J. Cloobeck
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Name: Stephen J. Cloobeck
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Its: Manager
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THE COMPANY:
|
||
DIAMOND RESORTS PARENT, LLC
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||
By:
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/s/ David F. Palmer
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Name:
|
David F. Palmer
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Its:
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President
|
(i) | The Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Nevada. The Guarantor has all requisite power and authority to enter into and perform its obligations under this Guaranty by this Agreement. |
(ii) | The execution, delivery and performance by the Guarantor of this Guaranty, and the consummation and performance by the Guarantor of the transactions contemplated hereby, have been duly authorized by all necessary limited liability company action of the Guarantor. This Guaranty has been duly executed and delivered and constitutes a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the rights of creditors generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). All proceedings or actions required to be taken by the Guarantor relating to the execution and delivery of this Guaranty and to the consummation and performance of the transactions contemplated hereby (including the pledge of the Pledged DRI Shares) have been taken. |
(iii) | The execution, delivery or performance by the Guarantor of this Guaranty, and the consummation by the Guarantor of the transactions contemplated hereby, and compliance by the Guarantor with the terms and provisions hereof, will not (i) conflict with the organizational documents of the Guarantor, (ii) conflict with, or result in the breach or termination of, or constitute a default (with or without notice or lapse of time, or both) under or result in the termination or suspension of, or accelerate the performance required by any of the terms, conditions or provisions of, any note, bond, mortgage, indenture, license, lease, agreement, commitment or other instrument to which the Guarantor or any of its subsidiaries is a party or by which any of its properties or assets is bound, (iii) constitute a violation by the Guarantor of any law applicable to the Guarantor, its subsidiaries or their respective properties or assets or (iv) except as provided herein, result in the creation of any mortgage, claim, lien, pledge, security interest, option, charge, restriction, voting trust agreement, encumbrance and legal and/or equitable claim of any kind upon any of the properties or assets of the Guarantor or its subsidiaries. Except as set forth herein, no permit, authorization, consent or approval of or by, or any notification of or filing with, any person (governmental or private) is required by the Guarantor or its subsidiaries in connection with the execution, delivery and performance of this Guaranty, the consummation by the Guarantor of the transactions contemplated hereby, or the pledge of the Pledged DRI Shares hereunder. |
(iv) | Except for the security interest created pursuant to this Guaranty, Guarantor is and will at all times be the sole holder of record and the legal and beneficial owner, free and clear of all liens, claims or encumbrances, of the Pledged DRI Shares; (ii) all of the Pledged DRI Shares are duly authorized, validly issued, fully paid and nonassessable; (iii) Guarantor has the right and requisite authority to pledge the Pledged DRI Shares as provided in this Guaranty; and (iv) all actions necessary or desirable to perfect and establish the first priority of, or otherwise protect, Lenders’ security interest in the Pledged DRI Shares, and any proceeds thereof, have been duly taken, upon the execution and delivery of this Agreement, the delivery to the Collateral Agent of the certificates, if any, evidencing the Pledged DRI Shares and the filing of financing statements in the applicable jurisdiction with respect to the Pledged DRI Shares. None of the Pledged DRI Shares has been issued or transferred in violation of any securities registration, securities disclosure, or similar laws of any jurisdiction to which such issuance or transfer may be subject. |
(v) | This Guaranty creates a valid security interest in the Pledged DRI Shares securing the payment of the indebtedness evidenced by this Guaranty and the Notes. All filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken or will have been taken upon the filing of financing statements listing Guarantor, as debtor, and Collateral Agent on behalf of the Lenders, as secured party, in Nevada. Upon the making of such filings and the delivery to the Collateral Agent of the certificates, if any, evidencing the Pledged DRI Shares, Lenders shall have a first priority perfected security interest in the Pledged DRI Shares. All action by the Borrower necessary to protect and perfect such security interest on the Pledged DRI Shares has been duly taken. |
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CHAUTAUQUA MANAGEMENT, LLC
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By:
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/s/ David F. Palmer
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Name:
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David F. Palmer
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Title:
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Manager
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LENDER
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Midland National Life Insurance Company
Address for Notices:
Midland National Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
330 Madison Avenue – 10th Floor
New York, New York 10017
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NZC Guggenheim Fund LLC
Address for Notices:
NZC Guggenheim Fund LLC
c/o Guggenheim Investment Management, LLC, as investment manager
330 Madison Avenue – 10th Floor
New York, New York 10017
|
Security Benefit Life Insurance Company
Address for Notices:
Security Benefit Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
330 Madison Avenue – 10th Floor
New York, New York 10017
|
(i) | The Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Nevada. The Guarantor has all requisite power and authority to enter into and perform its obligations under this Guaranty by this Agreement. |
(ii) | The execution, delivery and performance by the Guarantor of this Guaranty, and the consummation and performance by the Guarantor of the transactions contemplated hereby, have been duly authorized by all necessary limited liability company action of the Guarantor. This Guaranty has been duly executed and delivered and constitutes a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the rights of creditors generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). All proceedings or actions required to be taken by the Guarantor relating to the execution and delivery of this Guaranty and to the consummation and performance of the transactions contemplated hereby (including the pledge of the Pledged DRI Shares) have been taken. |
(iii) | The execution, delivery or performance by the Guarantor of this Guaranty, and the consummation by the Guarantor of the transactions contemplated hereby, and compliance by the Guarantor with the terms and provisions hereof, will not (i) conflict with the organizational documents of the Guarantor, (ii) conflict with, or result in the breach or termination of, or constitute a default (with or without notice or lapse of time, or both) under or result in the termination or suspension of, or accelerate the performance required by any of the terms, conditions or provisions of, any note, bond, mortgage, indenture, license, lease, agreement, commitment or other instrument to which the Guarantor or any of its subsidiaries is a party or by which any of its properties or assets is bound, (iii) constitute a violation by the Guarantor of any law applicable to the Guarantor, its subsidiaries or their respective properties or assets or (iv) except as provided herein, result in the creation of any mortgage, claim, lien, pledge, security interest, option, charge, restriction, voting trust agreement, encumbrance and legal and/or equitable claim of any kind upon any of the properties or assets of the Guarantor or its subsidiaries. Except as set forth herein, no permit, authorization, consent or approval of or by, or any notification of or filing with, any person (governmental or private) is required by the Guarantor or its subsidiaries in connection with the execution, delivery and performance of this Guaranty, the consummation by the Guarantor of the transactions contemplated hereby, or the pledge of the Pledged DRI Shares hereunder. |
(iv) | Except for the security interest created pursuant to this Guaranty, Guarantor is and will at all times be the sole holder of record and the legal and beneficial owner, free and clear of all liens, claims or encumbrances, of the Pledged DRI Shares; (ii) all of the Pledged DRI Shares are duly authorized, validly issued, fully paid and nonassessable; (iii) Guarantor has the right and requisite authority to pledge the Pledged DRI Shares as provided in this Guaranty; and (iv) all actions necessary or desirable to perfect and establish the first priority of, or otherwise protect, Lenders’ security interest in the Pledged DRI Shares, and any proceeds thereof, have been duly taken, upon the execution and delivery of this Agreement, the delivery to the Collateral Agent of the certificates, if any, evidencing the Pledged DRI Shares and the filing of financing statements in the applicable jurisdiction with respect to the Pledged DRI Shares. None of the Pledged DRI Shares has been issued or transferred in violation of any securities registration, securities disclosure, or similar laws of any jurisdiction to which such issuance or transfer may be subject. |
(v) | This Guaranty creates a valid security interest in the Pledged DRI Shares securing the payment of the indebtedness evidenced by this Guaranty and the Notes. All filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken or will have been taken upon the filing of financing statements listing Guarantor, as debtor, and Collateral Agent on behalf of the Lenders, as secured party, in Nevada. Upon the making of such filings and the delivery to the Collateral Agent of the certificates, if any, evidencing the Pledged DRI Shares, Lenders shall have a first priority perfected security interest in the Pledged DRI Shares. All action by the Borrower necessary to protect and perfect such security interest on the Pledged DRI Shares has been duly taken. |
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BEST AMIGOS PARTNERS, LLC
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By:
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/s/ Lowell D. Kraff
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Name:
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Lowell D. Kraff
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Title:
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Manager
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LENDER
|
Midland National Life Insurance Company
Address for Notices:
Midland National Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
330 Madison Avenue – 10th Floor
New York, New York 10017
|
NZC Guggenheim Fund LLC
Address for Notices:
NZC Guggenheim Fund LLC
c/o Guggenheim Investment Management, LLC, as investment manager
330 Madison Avenue – 10th Floor
New York, New York 10017
|
Security Benefit Life Insurance Company
Address for Notices:
Security Benefit Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
330 Madison Avenue – 10th Floor
New York, New York 10017
|
(i) | The Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. The Guarantor has all requisite power and authority to enter into and perform its obligations under this Guaranty by this Agreement. |
(ii) | The execution, delivery and performance by the Guarantor of this Guaranty, and the consummation and performance by the Guarantor of the transactions contemplated hereby, have been duly authorized by all necessary limited liability company action of the Guarantor. This Guaranty has been duly executed and delivered and constitutes a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the rights of creditors generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). All proceedings or actions required to be taken by the Guarantor relating to the execution and delivery of this Guaranty and to the consummation and performance of the transactions contemplated hereby (including the pledge of the Pledged DRP Units) have been taken. |
(iii) | The execution, delivery or performance by the Guarantor of this Guaranty, and the consummation by the Guarantor of the transactions contemplated hereby, and compliance by the Guarantor with the terms and provisions hereof, will not (i) conflict with the organizational documents of the Guarantor, (ii) conflict with, or result in the breach or termination of, or constitute a default (with or without notice or lapse of time, or both) under or result in the termination or suspension of, or accelerate the performance required by any of the terms, conditions or provisions of, any note, bond, mortgage, indenture, license, lease, agreement, commitment or other instrument to which the Guarantor or any of its subsidiaries is a party or by which any of its properties or assets is bound, (iii) constitute a violation by the Guarantor of any law applicable to the Guarantor, its subsidiaries or their respective properties or assets or (iv) except as provided herein, result in the creation of any mortgage, claim, lien, pledge, security interest, option, charge, restriction, voting trust agreement, encumbrance and legal and/or equitable claim of any kind upon any of the properties or assets of the Guarantor or its subsidiaries. No permit, authorization, consent or approval of or by, or any notification of or filing with, any person (governmental or private) is required by the Guarantor or its subsidiaries in connection with the execution, delivery and performance of this Guaranty, the consummation by the Guarantor of the transactions contemplated hereby, or the pledge of the Pledged DRP Units hereunder. |
(iv) | Except for the security interest created pursuant to this Guaranty, Guarantor is and will at all times be the sole holder of record and the legal and beneficial owner, free and clear of all liens, claims or encumbrances, of the Pledged DRP Units; (ii) all of the Pledged DRP Units are duly authorized, validly issued, fully paid and nonassessable; (iii) Guarantor has the right and requisite authority to pledge the Pledged DRP Units as provided in this Guaranty; and (iv) all actions necessary or desirable to perfect and establish the first priority of, or otherwise protect, Lenders’ security interest in the Pledged DRP Units, and any proceeds thereof, have been duly taken, upon the execution and delivery of this Agreement and the filing of financing statements in the applicable jurisdiction with respect to the Pledged DRP Units. None of the Pledged DRP Units has been issued or transferred in violation of any securities registration, securities disclosure, or similar laws of any jurisdiction to which such issuance or transfer may be subject. |
(v) | The limited liability company interests issued pursuant to the Fourth Amended and Restated Operating Agreement dated as of July 21, 2011 (the “DRP Operating Agreement”) of DRP, (i) are not dealt in or traded on securities exchanges or in securities markets, (ii) do not constitute securities of an investment company that is required to be registered under the Investment Company Act of 1940, as amended, and (iii) are not held by the Guarantor in a “securities account” (as that term is defined in the Delaware Uniform Commercial Code). In addition, neither the DRP Operating Agreement nor any other agreements governing any of the Pledged DRP Units, provide that the Pledged DRP Units are securities governed by Article 8 of the Delaware Uniform Commercial Code. |
(vi) | This Guaranty creates a valid security interest in the Pledged DRP Units securing the payment of the indebtedness evidenced by this Guaranty and the Notes. All filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken or will have been taken upon the filing of financing statements listing Guarantor, as debtor, and Collateral Agent on behalf of the Lenders, as secured party, in Delaware. Upon the making of such filings, Lenders shall have a first priority perfected security interest in the Pledged DRP Units. All action by the Borrower necessary to protect and perfect such security interest on the Pledged DRP Units has been duly taken. |
|
TRIVERGANCE DIAMOND SUB, LLC
|
|
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By:
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/s/ Lowell D. Kraff
|
|
Name:
|
Lowell D. Kraff
|
|
Title:
|
Authorized Person
|
LENDER
|
Midland National Life Insurance Company
Address for Notices:
Midland National Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
135 East 57th Street, 6th Floor
New York, New York 10022
|
NZC Guggenheim Fund LLC
Address for Notices:
NZC Guggenheim Fund LLC
c/o Guggenheim Investment Management, LLC, as investment manager
135 East 57th Street, 6th Floor
New York, New York 10022
|
Security Benefit Life Insurance Company
Address for Notices:
Security Benefit Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
135 East 57th Street, 6th Floor
New York, New York 10022
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(i) | The Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. The Guarantor has all requisite power and authority to enter into and perform its obligations under this Guaranty by this Agreement. |
(ii) | The execution, delivery and performance by the Guarantor of this Guaranty, and the consummation and performance by the Guarantor of the transactions contemplated hereby, have been duly authorized by all necessary limited liability company action of the Guarantor. This Guaranty has been duly executed and delivered and constitutes a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the rights of creditors generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). All proceedings or actions required to be taken by the Guarantor relating to the execution and delivery of this Guaranty and to the consummation and performance of the transactions contemplated hereby (including the pledge of the Pledged DRP Units) have been taken. |
(iii) | The execution, delivery or performance by the Guarantor of this Guaranty, and the consummation by the Guarantor of the transactions contemplated hereby, and compliance by the Guarantor with the terms and provisions hereof, will not (i) conflict with the organizational documents of the Guarantor, (ii) conflict with, or result in the breach or termination of, or constitute a default (with or without notice or lapse of time, or both) under or result in the termination or suspension of, or accelerate the performance required by any of the terms, conditions or provisions of, any note, bond, mortgage, indenture, license, lease, agreement, commitment or other instrument to which the Guarantor or any of its subsidiaries is a party or by which any of its properties or assets is bound, (iii) constitute a violation by the Guarantor of any law applicable to the Guarantor, its subsidiaries or their respective properties or assets or (iv) except as provided herein, result in the creation of any mortgage, claim, lien, pledge, security interest, option, charge, restriction, voting trust agreement, encumbrance and legal and/or equitable claim of any kind upon any of the properties or assets of the Guarantor or its subsidiaries. No permit, authorization, consent or approval of or by, or any notification of or filing with, any person (governmental or private) is required by the Guarantor or its subsidiaries in connection with the execution, delivery and performance of this Guaranty, the consummation by the Guarantor of the transactions contemplated hereby, or the pledge of the Pledged DRP Units hereunder. |
(iv) | Except for the security interest created pursuant to this Guaranty, Guarantor is and will at all times be the sole holder of record and the legal and beneficial owner, free and clear of all liens, claims or encumbrances, of the Pledged DRP Units; (ii) all of the Pledged DRP Units are duly authorized, validly issued, fully paid and nonassessable; (iii) Guarantor has the right and requisite authority to pledge the Pledged DRP Units as provided in this Guaranty; and (iv) all actions necessary or desirable to perfect and establish the first priority of, or otherwise protect, Lenders’ security interest in the Pledged DRP Units, and any proceeds thereof, have been duly taken, upon the execution and delivery of this Agreement and the filing of financing statements in the applicable jurisdiction with respect to the Pledged DRP Units. None of the Pledged DRP Units has been issued or transferred in violation of any securities registration, securities disclosure, or similar laws of any jurisdiction to which such issuance or transfer may be subject. |
(v) | The limited liability company interests issued pursuant to the Fourth Amended and Restated Operating Agreement dated as of July 21, 2011 (the “DRP Operating Agreement”) of DRP, (i) are not dealt in or traded on securities exchanges or in securities markets, (ii) do not constitute securities of an investment company that is required to be registered under the Investment Company Act of 1940, as amended, and (iii) are not held by the Guarantor in a “securities account” (as that term is defined in the Nevada Uniform Commercial Code). In addition, neither the DRP Operating Agreement nor any other agreements governing any of the Pledged DRP Units, provide that the Pledged DRP Units are securities governed by Article 8 of the Nevada Uniform Commercial Code. |
(vi) | This Guaranty creates a valid security interest in the Pledged DRP Units securing the payment of the indebtedness evidenced by this Guaranty and the Notes. All filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken or will have been taken upon the filing of financing statements listing Guarantor, as debtor, and Collateral Agent on behalf of the Lenders, as secured party, in Delaware. Upon the making of such filings, Lenders shall have a first priority perfected security interest in the Pledged DRP Units. All action by the Borrower necessary to protect and perfect such security interest on the Pledged DRP Units has been duly taken. |
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LDK HOLDCO, LLC
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By:
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/s/ Lowell D. Kraff
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Name:
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Lowell D. Kraff |
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Title:
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Sole Member
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LENDER
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Midland National Life Insurance Company
Address for Notices:
Midland National Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
135 East 57th Street, 6th Floor
New York, New York 10022
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NZC Guggenheim Fund LLC
Address for Notices:
NZC Guggenheim Fund LLC
c/o Guggenheim Investment Management, LLC, as investment manager
135 East 57th Street, 6th Floor
New York, New York 10022
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Security Benefit Life Insurance Company
Address for Notices:
Security Benefit Life Insurance Company
c/o Guggenheim Partners Asset Management, LLC, as investment manager
135 East 57th Street, 6th Floor
New York, New York 10022
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GUGGENHEIM CAPITAL, LLC
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By:
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/s/ Robert Saperstein
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Name:
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Robert Saperstein
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Title:
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Managing Director
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GUGGENHEIM PARTNERS, LLC
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By:
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Guggenheim Capital, LLC, parent company
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By:
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/s/ Robert Saperstein
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Name:
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Robert Saperstein
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Title:
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Managing Director
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GUGGENHEIM PARTNERS INVESTMENT MANAGEMENT HOLDINGS, LLC
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By:
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Guggenheim Capital, LLC, parent company
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By:
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/s/ Robert Saperstein
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Name:
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Robert Saperstein
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Title:
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Managing Director
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GUGGENHEIM PARTNERS INVESTMENT MANAGEMENT, LLC
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By:
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Guggenheim Capital, LLC, parent company
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By:
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/s/ Robert Saperstein
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Name:
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Robert Saperstein
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Title:
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Managing Director
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