SC 13D

0001193125-13-319298.txt : 20130805 0001193125-13-319298.hdr.sgml : 20130805 20130805170533 ACCESSION NUMBER: 0001193125-13-319298 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20130805 DATE AS OF CHANGE: 20130805 GROUP MEMBERS: BEST AMIGOS PARTNERS, LLC GROUP MEMBERS: DIAMOND OURSURANCE, LLC GROUP MEMBERS: LDK HOLDCO, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Diamond Resorts International, Inc. CENTRAL INDEX KEY: 0001566897 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 461750895 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-87563 FILM NUMBER: 131010910 BUSINESS ADDRESS: STREET 1: 10600 WEST CHARLESTON BOULEVARD CITY: LAS VEGAS STATE: NV ZIP: 89135 BUSINESS PHONE: (702) 798-8840 MAIL ADDRESS: STREET 1: 10600 WEST CHARLESTON BOULEVARD CITY: LAS VEGAS STATE: NV ZIP: 89135 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Kraff Lowell D CENTRAL INDEX KEY: 0001423055 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 2200 FLETCHER AVENUE STREET 2: 4TH FLOOR CITY: FORT LEE STATE: NJ ZIP: 07024 SC 13D 1 d578994dsc13d.htm SC 13D SC 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

Diamond Resorts International, Inc.

(Name of Issuer)

Common Stock, par value $0.01

(Title of Class of Securities)

25272T 104

(CUSIP Number)

Lowell D. Kraff

1 N. Wacker Drive, 48th Floor

Chicago, IL 60606

(312) 357-8800

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

July 24, 2013

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

(Page 1 of 12 Pages)


CUSIP No. 25272T104		13D		Page 2 of 12


1	Names of reporting persons Best Amigos Partners, LLC
2	Check the appropriate box if a member of a group (a) x (b) ¨
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) ¨
6	Citizenship or place of organization Nevada
Number of shares beneficially owned by each reporting person with		7	Sole voting power 1,431,687 (1)
		8	Shared voting power 0
		9	Sole dispositive power 1,431,687 (1)
		10	Shared dispositive power 0
11	Aggregate amount beneficially owned by each reporting person 1,431,687 (1)
12	Check box if the aggregate amount in Row (11) excludes certain shares ¨
13	Percent of class represented by amount in Row (11) 1.90% (2)
14	Type of reporting person OO

(1)	Includes 24,530 shares of common stock held by Trivergance Diamond Sub, LLC. Pursuant to the terms of a nominee agreement, Best Amigos Partners, LLC has the right to direct actions with respect to such shares.

(2)	Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D.


CUSIP No. 25272T104		13D		Page 3 of 12


1	Names of reporting persons Diamond Oursurance, LLC
2	Check the appropriate box if a member of a group (a) x (b) ¨
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) ¨
6	Citizenship or place of organization Nevada
Number of shares beneficially owned by each reporting person with		7	Sole voting power 512,686
		8	Shared voting power 0
		9	Sole dispositive power 512,686
		10	Shared dispositive power 0
11	Aggregate amount beneficially owned by each reporting person 512,686
12	Check box if the aggregate amount in Row (11) excludes certain shares ¨
13	Percent of class represented by amount in Row (11) 0.68% (3)
14	Type of reporting person OO

(3)	Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D.


CUSIP No. 25272T104		13D		Page 4 of 12


1	Names of reporting persons LDK Holdco, LLC
2	Check the appropriate box if a member of a group (a) x (b) ¨
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) ¨
6	Citizenship or place of organization Delaware
Number of shares beneficially owned by each reporting person with		7	Sole voting power 102,765
		8	Shared voting power 0
		9	Sole dispositive power 102,765
		10	Shared dispositive power 0
11	Aggregate amount beneficially owned by each reporting person 102,765
12	Check box if the aggregate amount in Row (11) excludes certain shares ¨
13	Percent of class represented by amount in Row (11) 0.14% (4)
14	Type of reporting person OO

(4)	Based on 75,447,688 outstanding shares of common stock of the Issuer as of the date of this Schedule 13D.


CUSIP No. 25272T104		13D		Page 5 of 12


1	Names of reporting persons Lowell D. Kraff
2	Check the appropriate box if a member of a group (a) x (b) ¨
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) ¨
6	Citizenship or place of organization United States
Number of shares beneficially owned by each reporting person with		7	Sole voting power 4,012,815 (5)
		8	Shared voting power 5,457,988 (6)
		9	Sole dispositive power 4,012,815 (5)
		10	Shared dispositive power 5,457,988 (6)
11	Aggregate amount beneficially owned by each reporting person 9,470,803 (5)(6)
12	Check box if the aggregate amount in Row (11) excludes certain shares ¨
13	Percent of class represented by amount in Row (11) 12.55% (7)
14	Type of reporting person IN

(5)

Includes (i) 1,212,585 shares of common stock issuable upon exercise of an option held by Mr. Kraff which is currently vested and (ii) an aggregate of 2,800,230 shares of common stock held by Best Amigos Partners, LLC, Praesumo Partners, LLC, Diamond Oursurance, LLC, and LDK Holdco, LLC. Mr. Kraff is the sole manager of Best Amigos Partners, LLC, the managing member of Praesumo Partners, LLC, the sole manager of Diamond Oursurance, LLC, and the sole member of LDK Holdco, LLC.

(6)

Includes 4,535,426 shares of common stock issuable upon exercise of a fully-exercisable call option from DRP Holdco, LLC and 431,875 shares of common stock issuable upon exercise of a fully-exercisable call option from Silver Rock Financial LLC and other entities affiliated therewith; each such call option is held by 1818 Partners, LLC. Mr. Kraff is the managing member of Praesumo Partners, LLC, one of the managing members of 1818 Partners, LLC. Also includes 490,687 shares held by Trivergance Diamond Sub, LLC. Mr. Kraff is the co-manager of an entity which is the sole manager of the sole member of Trivergance Diamond Sub, LLC.

(7)	Based on 75,447,688 outstanding shares of common stock of the Issuer.


CUSIP No. 25272T104		13D		Page 6 of 12

Item 1.

Security and Issuer

This statement relates to the common stock, par value $0.01 per share (the “Common Stock”), of Diamond Resorts International, Inc. (the “Issuer”). The address of the principal executive offices of the Issuer is 10600 West Charleston Boulevard, Las Vegas, Nevada 89135.

Item 2.

Identity and Background

This statement is being filed by Best Amigos Partners, LLC (“BAP”), Diamond Oursurance, LLC (“Oursurance”), LDK Holdco, LLC (“LDK”) and Lowell D. Kraff (collectively, the “Reporting Persons”). Each of BAP and Oursurance is a Nevada limited liability company. LDK is a Delaware limited liability company. Mr. Kraff is a United States citizen.

The principal business address of each of the Reporting Persons is 1 N. Wacker Drive, 48th Floor, Chicago, IL 60606.

Praesumo Partners, LLC (“Praesumo”) is one of the managing members of 1818 Partners, LLC (“1818 Partners”). Mr. Kraff is (i) the sole manager of BAP, (ii) the managing member of Praesumo, (iii) the sole manager of Oursurance, (iv) the co-manager of an entity which is the sole manager of the sole member of Trivergance Diamond Sub, LLC (“TDS”), and (v) the sole member of LDK.

Each of BAP, Oursurance and LDK is primarily engaged in the business of holding securities of the Issuer. Mr. Kraff’s principal occupation or employment is serving as Executive Chairman of Trivergance LLC, a consulting and advisory firm focusing on identifying deals, structuring transactions, sourcing and securing capital and enhancing value. Mr. Kraff is also the Vice Chairman of the board of directors of the Issuer.

None of the Reporting Persons has, during the past five years, (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Each of the Reporting Persons is deemed to be a member of a “group,” as such term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-5 promulgated thereunder, as a result of being party to the Stockholders Agreement (as defined herein), as more fully described in Items 4 and 5 hereof.

Item 3.

Source and Amount of Funds or Other Consideration.

On July 24, 2013, the Issuer closed the initial public offering (the “IPO”) of an aggregate of 17,825,000 shares of Common Stock at the IPO price of $14.00 per share. In the IPO, the Issuer sold 16,100,000 shares of Common Stock, and Cloobeck Diamond Parent, LLC (“CDP”), in its capacity as a selling stockholder, sold 1,725,000 shares of Common Stock.

Pursuant to an Exchange Agreement, dated as of July 17, 2013 (the “Exchange Agreement”), by and among the Issuer, Diamond Resorts Parent, LLC (“Diamond LLC”) and the members of Diamond LLC party thereto, in connection with, and immediately prior to the closing of, the IPO, (i) the holders of Class A common units of Diamond LLC contributed all of their Class A common units of Diamond LLC to the Issuer in return for an aggregate of 53,697,402 shares of Common Stock, and (ii) the holders of Class B common units of Diamond LLC contributed all of their Class B common units of Diamond LLC to the Issuer in return for an aggregate of


CUSIP No. 25272T104		13D		Page 7 of 12

360,465 shares of Common Stock (collectively, the “Exchange”). Immediately following the consummation of the Exchange, Diamond LLC was merged with and into the Issuer, with the Issuer remaining as the surviving entity.

Immediately prior to the Exchange, BAP held 33.364 Class A common units and 3.004 Class B common units of Diamond LLC. Upon consummation of the Exchange, BAP received an aggregate of 1,407,157 shares of Common Stock in exchange for such Class A and Class B common units.

Immediately prior to the Exchange, Oursurance held 13.251 Class A common units of Diamond LLC. Upon consummation of the Exchange, Oursurance received 512,686 shares of Common Stock in exchange for such Class A common units.

Immediately prior to the Exchange, LDK held 2.656 Class A common units of Diamond LLC. Upon consummation of the Exchange, LDK received 102,765 shares of Common Stock in exchange for such Class A common units.

Immediately prior to the Exchange, Praesumo held 19.464 Class A common units of Diamond LLC. Upon consummation of the Exchange, Praesumo received 753,092 shares of Common Stock in exchange for such Class A common units.

Immediately prior to the Exchange, TDS held 12.682 Class A common units of Diamond LLC. Upon consummation of the Exchange, TDS received 490,687 shares of Common Stock in exchange for such Class A common units.

In connection with the closing of the IPO, existing call options held by 1818 Partners representing the right to purchase Class A common units in Diamond LLC were converted, pursuant to the terms of such call options, into call options to purchase (i) 4,535,426 shares of Common Stock from DRP Holdco, LLC (the “DRPH Call Option”) and (ii) 431,875 shares of Common Stock from Silver Rock Financial LLC and other entities affiliated therewith (the “Silver Rock Call Option” and, together with the DRPH Call Option, the “Call Options”).

On July 18, 2013, for services rendered (or to be rendered) to the Issuer, the Issuer granted to Mr. Kraff a stock option to purchase an aggregate of 1,212,585 shares of Common Stock, with a per share exercise price of $14.00. This option was issued to Mr. Kraff as a holder of Class B common units of Diamond LLC, in part to maintain the incentive value intended when the Issuer originally issued Class B common units to Mr. Kraff and to provide an incentive for Mr. Kraff to continue providing services to the Issuer. Such option is fully vested as of the date of this Schedule 13D. The option was granted pursuant to a stock option agreement (the “Stock Option Agreement”) under the Issuer’s 2013 Incentive Compensation Plan (the “Plan”).

The summaries contained herein of the Exchange Agreement, the DRPH Call Option, the Silver Rock Call Option, the Stock Option Agreement and the Plan do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed as Exhibits 1, 2, 3, 4 and 5, respectively, to this Schedule 13D and are incorporated herein by reference.


CUSIP No. 25272T104		13D		Page 8 of 12

Item 4.

Purpose of Transaction.

The disclosure set forth in Item 3 of this Schedule 13D is incorporated herein by reference.

In connection with the closing of the IPO, each of the Reporting Persons has entered into a Stockholders’ Agreement, dated as of July 17, 2013 (the “Stockholders Agreement”), with other individuals and entities who are now stockholders of the Issuer. The Stockholders Agreement covers an aggregate of 40,119,261 shares of Common Stock, representing approximately 53.2% of the outstanding Common Stock. In addition, CDP and DRP Holdco, LLC (“DRPH”), which beneficially own an aggregate of approximately 22.0% and 15.0%, respectively, of the Common Stock, and are parties to the Stockholders Agreement, entered into a Director Designation Agreement, dated as of July 17, 2013 (the “Director Designation Agreement”), with the Issuer.

Pursuant to the Director Designation Agreement, (i) CDP has the right to designate up to two of the Issuer’s directors, for so long as CDP and its affiliates, collectively, own at least ten percent (10%) of the issued and outstanding shares of Common Stock, and (ii) DRPH has the right to designate up to two of the Issuer’s directors, for so long as DRPH and its affiliates, collectively, own at least ten percent (10%) of the issued and outstanding shares of Common Stock, provided that, in each case, if the board of directors of the Issuer (the “Board”) determines in good faith, after consultation with outside legal counsel, that the nomination of any such designee would constitute a breach of its fiduciary duties to the Issuer’s stockholders, CDP or DRPH, as applicable, must designate another individual (who will also be subject to the same determination by the Board).

Pursuant to the Stockholders Agreement, each of the parties thereto has agreed to cause the shares of Common Stock held by such party to be voted, at any meeting of stockholders of the Issuer called for such purpose, for the individuals nominated by the Board for election to the Board (including those nominees selected by CDP and DRPH pursuant to the Director Designation Agreement). Each of the parties to the Stockholders Agreement has agreed to appoint Stephen J. Cloobeck and David F. Palmer as their proxies and attorneys-in-fact to vote their shares of Common Stock in the event that they fail to vote in accordance with the provisions of the Stockholders Agreement. In addition, in the event that any party to the Stockholders Agreement transfers any shares of Common Stock to an affiliate, another party to the Stockholders Agreement or an affiliate of another party to the Stockholders Agreement, the transferee will be required to sign a joinder to the Stockholders Agreement.

As a result of the Stockholders Agreement, the parties thereto are deemed to constitute a “group,” for purposes of the Exchange Act, that holds more than 50% of the Common Stock, and the Issuer will therefore qualify as a “controlled company” under the corporate governance rules of the New York Stock Exchange.

In connection with the closing of the IPO, (i) certain parties to the Stockholders Agreement purchased shares of Common Stock in the IPO pursuant to the directed share program established by the underwriters for the IPO, (ii) each member of the Board who is not an officer or employee of the Issuer, or the Chairman or Vice Chairman of the Board (each such individual, a “Non-Officer Director”) was granted shares of restricted common stock for service on the Board, pursuant to the Issuer’s 2013 Incentive Compensation Plan, and (iii) each Non-Officer Director received shares of fully vested Common Stock in lieu of the cash retainer to which such Non-Officer Director was otherwise entitled, pursuant to the Non-Officer Director Share Accumulation Program adopted as part of the Issuer’s 2013 Incentive Compensation Plan. Pursuant to the Non-Officer Director Share Accumulation Program, each Non-Officer Director is entitled to elect to utilize all or a portion of his annual retainer fee to acquire shares of Common Stock.


CUSIP No. 25272T104		13D		Page 9 of 12

The transactions contemplated by the Stockholders Agreement and the Director Designation Agreement may result in certain actions specified in Items 4(a) through (j) of Schedule 13D, including changes in the Board. Mr. Kraff is, and will be, the Vice Chairman of the board of directors of the Issuer. In his capacity as the Vice Chairman of the board of directors, Mr. Kraff is and will be significantly involved in the affairs of the Issuer and in this capacity could take actions that relate to or would result in the matters set forth in Items 4(b) through (j) of Schedule 13D. Furthermore, as stockholders of the Issuer, on an ongoing basis, the Reporting Persons will review the Issuer’s operating, management, business affairs, capital needs and general industry and economic conditions, and, based on such review, the Reporting Persons may, from time to time, determine to increase or decrease their ownership of Common Stock, vote to approve an extraordinary corporate transaction with regard to the Issuer or engage in any of the events set forth in Items 4(a) through (j) of Schedule 13D. Except as otherwise provided herein, the Reporting Persons currently have no intention of engaging in any of the events set forth in Items 4(a) through (j) of Schedule 13D.

The summaries contained herein of the Stockholders Agreement and the Director Designation Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are included as Exhibits 6 and 7, respectively, to this Schedule 13D and are incorporated herein by reference.

Item 5.

Interest in Securities of the Issuer.

(a) The Reporting Persons may be deemed to beneficially own, in the aggregate, 9,446,273 shares of Common Stock, representing approximately 12.32% of the Issuer’s outstanding Common Stock (based on 75,447,688 shares of Common Stock outstanding).

(b) Mr. Kraff has sole voting power and sole dispositive power with regard to (i) 1,212,585 shares of Common Stock underlying options held by him and (ii) an aggregate of 2,775,700 shares of Common Stock held by BAP, Praesumo, Oursurance, and LDK. Mr. Kraff is (i) the sole manager of BAP, (ii) the managing member of Praesumo, (iii) the sole manager of Oursurance, and (iv) the sole member of LDK. Mr. Kraff has shared voting power and shared dispositive power with regard to (A) 4,967,301 shares of Common Stock underlying the Call Options held by 1818 Partners and (B) 490,687 shares of Common Stock held by TDS. Mr. Kraff is the managing member of Praesumo, which is one of the managing members of 1818 Partners, and Mr. Kraff is the co-manager of an entity which is the sole manager of the sole member of TDS. BAP has sole voting power and sole dispositive power with regard to (I) 1,407,157 shares of Common Stock held by it and (II) 24,530 shares of Common Stock held by TDS. Pursuant to the terms of a nominee agreement, BAP has the right to direct actions with respect to such shares held by TDS. Oursurance has sole voting power and sole dispositive power with regard to 512,686 shares of Common Stock held by it. LDK has sole voting power and sole dispositive power with regard to 102,765 shares of Common Stock held by it.

The share ownership reported for the Reporting Persons does not include any shares of Common Stock owned by the other parties to the Stockholders Agreement, except to the extent disclosed in this Schedule 13D. Each of the Reporting Persons is deemed to be a member of a “group” for purposes of the Exchange Act with the other parties to the Stockholders Agreement. Each of the Reporting Persons disclaims beneficial ownership of any shares of Common Stock owned by the other parties to the Stockholders Agreement, except to the extent disclosed in this Schedule 13D.


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(c) No transactions in the Common Stock have been effected by any of the Reporting Persons within the past 60 days, except as disclosed under Item 3 of this Schedule 13D, all of which disclosures are incorporated herein by reference.

(d) With respect to the 4,535,426 shares of Common Stock underlying the DRPH Call Option held by 1818 Partners, DRPH currently has the power to direct the receipt of dividends from such shares of Common Stock. With respect to the 431,875 shares of Common Stock underlying the Silver Rock Call Option, Silver Rock Financial LLC and other entities affiliated therewith have the power to direct the receipt of dividends from such shares of Common Stock. Upon exercise of the Call Options by 1818 Partners, Praesumo will share the power to direct the receipt of dividends from, or the proceeds from the sale of, the underlying shares of Common Stock with Cloobeck Companies, LLC and Chautauqua Management, LLC, the other managing members of 1818 Partners.

(e) Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

The responses set forth in Items 3 and 4 of this Schedule 13D are hereby incorporated by reference.

Pursuant to a Guaranty entered into by BAP (the “BAP Guaranty”), 549,175 shares of the Common Stock held by BAP have been pledged to Guggenheim Corporate Funding, LLC, for the benefit of the lenders, to secure loans to Mr. Kraff. Pursuant to a Guaranty entered into by LDK (the “LDK Guaranty”), 102,765 shares of the Common Stock held by LDK have been pledged to Guggenheim Corporate Funding, LLC, for the benefit of the lenders, to secure loans to Mr. Kraff. In the event of a foreclosure or similar proceeding upon a default by Mr. Kraff under such loans, such shares of Common Stock would be transferred to Guggenheim Corporate Funding, LLC, as agent for the lenders.

Each of the Issuer’s officers, directors and principal stockholders (including each of the Reporting Persons) has executed a Lock-Up Agreement (each, a “Lock-Up Agreement” and, collectively, the “Lock-Up Agreements”). Each of the Lock-Up Agreements provides that the party thereto will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of Common Stock, or publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of Credit Suisse Securities (USA) LLC, for a period of 180 days after July 18, 2013 (which 180-day period is subject to extension under certain specified conditions).

Each of the Reporting Persons is party to that certain Second Amended and Restated Registration Rights Agreement, dated as of July 21, 2011 (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, the Issuer has agreed to provide to DRPH, stockholders related to Wellington Management Company, LLP and stockholders related to Silver Rock Financial LLC (collectively, the “Demand Rights Investors”) certain demand registration rights that entitle the Demand Rights Investors (subject to certain minimum


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thresholds for ownership of Common Stock, limitations on the number of demand registrations that can be requested and customary cutbacks) to require that the Issuer register all or part of the shares of Common Stock held by the Demand Rights Investors. In addition, pursuant to the Registration Rights Agreement, the Issuer has agreed to provide to the parties thereto, including each of the Reporting Persons, certain piggyback registration rights with respect to the Common Stock, subject to customary cutbacks.

Descriptions and summaries of the BAP Guaranty, the LDK Guaranty, the Lock-Up Agreements and the Registration Rights Agreement set forth above in this Item 6 do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are included as Exhibits 8, 9, 10 and 11, respectively, to this Schedule 13D and are incorporated herein by reference.

Item 7.

Material to be Filed as Exhibits.

The following documents are filed as exhibits:

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)

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*

Call Option Agreement, effective as of July 21, 2011, by and among Silver Rock Financial LLC, IN-FP1 LLC, BDIF LLC, CM-NP LLC, 1818 Partners, LLC and, solely for the purposes set forth in Sections 7, 8 and 9 thereof, Diamond Resorts Parent, LLC*

Form of Stock Option Award Agreement (incorporated by reference to Exhibit 10.49 to Amendment No. 1 to the Registration Statement on Form S-1 filed by the Issuer on July 9, 2013)

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)

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)

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)

BAP Guaranty, dated as of July 18, 2013*

LDK 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*

13.

Power of Attorney for Lowell D. Kraff (incorporated by reference to Exhibit A to the Form 3 filed by Mr. Kraff, Best Amigos Partners, LLC, Diamond Oursurance, LLC and LDK Holdco, LLC on July 18, 2013)

14.

Power of Attorney for Best Amigos Partners, LLC (incorporated by reference to Exhibit B to the Form 3 filed by Mr. Kraff, Best Amigos Partners, LLC, Diamond Oursurance, LLC and LDK Holdco, LLC on July 18, 2013)

15.

Power of Attorney for Diamond Oursurance, LLC (incorporated by reference to Exhibit C to the Form 3 filed by Mr. Kraff, Best Amigos Partners, LLC, Diamond Oursurance, LLC and LDK Holdco, LLC on July 18, 2013)

16.

Power of Attorney for LDK Holdco, LLC (incorporated by reference to Exhibit D to the Form 3 filed by Mr. Kraff, Best Amigos Partners, LLC, Diamond Oursurance, LLC and LDK Holdco, LLC on July 18, 2013)

*	Filed herewith


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SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 5, 2013

BEST AMIGOS PARTNERS, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for Best Amigos Partners, LLC

Jared T. Finkelstein, attorney-in-fact for Best Amigos Partners, LLC

DIAMOND OURSURANCE, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for Diamond Oursurance, LLC

Jared T. Finkelstein, attorney-in-fact for Diamond Oursurance, LLC

LDK HOLDCO, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for LDK Holdco, LLC

Jared T. Finkelstein, attorney-in-fact for LDK Holdco, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for Lowell D. Kraff

Jared T. Finkelstein, attorney-in-fact for Lowell D. Kraff

EX-99.2 2 d578994dex992.htm EX-99.2 EX-99.2

Execution Version

CALL OPTION AGREEMENT

THIS CALL OPTION AGREEMENT (this “Agreement”) is effective as of July 21, 2011 (the “Effective Date”), by and among (i) DRP Holdco, LLC, a Delaware limited liability company (“Unitholder”), (ii) 1818 Partners, LLC, a Nevada limited liability company (the “Optionholder”), (iii) solely for the purposes of Sections 4(b) and 8, the equityholders of Optionholder listed on the signature page hereto (the “Equityholders”), and (iv) solely for the purposes set forth in Sections 7, 8 and 9, Diamond Resorts Parent, LLC, a Nevada limited liability company (the “Company”).

R E C I T A L S:

WHEREAS, the Unitholder desires to grant the Optionholder an option to purchase certain Common Units of the Company from the Unitholder on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and mutual covenants set forth in this Agreement and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Call Option. The Unitholder hereby grant the Optionholder an option (the “Call Option”) to purchase up to 117.220 Units (the “Units”), or any portion thereof, from the Unitholder for $485,948.44 per Unit (the “Exercise Price per Unit”). The Optionholder may (but shall not be obligated to) exercise the Call Option, in its sole discretion, as provided in Section 2 from the Effective Date through and including July 21, 2016 (the “Expiration Date”). In the event the Optionholder does not exercise the Call Option in full by the Expiration Date, the unexercised portion of the Call Option, and this Agreement, shall terminate and shall be of no force or further effect.

2. Manner of Exercise.

On and after the Effective Date, Optionholder may, from time to time prior to the Expiration Date:

(a) elect to exercise the Call Option to purchase for cash some or all of the number of Units remaining subject to this Agreement from the Unitholder by delivering a written notice (“Cash Exercise Notice”) to the Unitholder. A Cash Exercise Notice shall state that Optionholder is exercising the Call Option and the aggregate number of Units that the Optionholder desires to purchase from the Unitholder, which number shall not exceed the number of Units then remaining subject to the Call Option. The Unitholder shall be obligated to sell to the Optionholder the number of Units specified in such Cash Exercise Notice (but not more than the number of Units then remaining subject to the Call Option) for an aggregate amount (the “Exercise Price”) equal to product of (i) the number of Units to be so sold by the Unitholder, and (ii) the Exercise Price per Unit. The date on which the Optionholder exercises

the Call Option (in whole or in part) under this Section 2(a) shall be referred to herein as a “Closing Date.” On the Closing Date for such exercise, the Optionholder shall deliver to the Unitholder the Exercise Price then payable by wire transfer of immediately available funds to an account specified by the Unitholder, and the Unitholder will transfer to the Optionholder the Units subject to the Cash Exercise Notice free and clear of all claims, liens or encumbrances from any third parties other than any restrictions imposed on the Units by the LLC Agreement, the Securityholders Agreement or state or federal securities laws.

(b) elect to receive the Net Units (as hereinafter defined) by delivering a written notice (“Unit Exercise Notice”) to the Unitholder. A Unit Exercise Notice shall state that Optionholder is exercising the Call Option and the aggregate number of Units in respect of which the Call Option is being exercised, which number shall not exceed the number of Units then remaining subject to the Call Option. The Unitholder shall deliver to the Optionholder the Net Units on the business day immediately following the business day such notice is received (provided such notice is received prior to 5:00 p.m. New York time on such business day and otherwise on the second business day following such receipt), free and clear of all claims, liens or encumbrances from any third parties other than any restrictions imposed on the Units by the LLC Agreement, the Securityholders Agreement or state or federal securities laws. For purposes of this Section 2(b), the following terms shall have the respective meanings indicated below:

“Fair Market Value per Unit” as of any date shall mean:

(i) if the Units (or their equivalent) are then listed or quoted on a national securities exchange, the last reported (closing) price per Unit on such exchange as of 4:00 p.m. Eastern Time on such date;

(ii) if clause (i) is not applicable and the Units (or their equivalent) are then quoted on any tier of the OTC Markets (or successor thereto), the average of the last reported (closing) bid and ask prices per Unit as of 4:00 p.m. Eastern Time on such date as reported by OTC Markets Group Inc. (or successor thereto); or

(iii) if neither clause (i) nor clause (ii) above is applicable and prices for the Units (or their equivalent) with respect to trading in the over-the-counter market are reported by Bloomberg Financial Markets (or successor thereto) (“Bloomberg”), the average of the last reported (closing) bid and ask prices per Unit as of 4:00 p.m. Eastern Time on such date as reported by Bloomberg; and

(iv) if none of clauses (i), (ii) or (iii) above are applicable, the fair market value per Unit on such date as established in good faith by the Company’s Board of Managers (or successor thereto);

provided, however, that, as to all of the foregoing, if the Call Option is deemed exercised as a result of the provisions of Section 8, then Fair Market Value per Unit shall mean the transaction consideration per Unit in such transaction.

“Net Units” means the result obtained by dividing:

(i) the product of (x) the number of Units covered by a Unit Exercise Notice multiplied by (y) the difference obtained by subtracting the Exercise Price per Unit from the Fair Market Value per Unit (provided, if such difference is less than zero, such difference shall be deemed to be zero) by

(ii) the Fair Market Value per Unit.

Notwithstanding the foregoing provisions of this Section 2, the Call Option may not be exercised during the period covered by any holdback agreement (the “IPO Holdback Agreement”) executed by the Unitholder in connection with the initial public offering of the Company’s (or its successor’s) securities.

Any exercise of the Call Option shall be accompanied by satisfactory evidence that Optionholder is, or has agreed to become through the execution of a joinder agreement, a party to the Securityholders Agreement.

3. Successor Securities; Adjustment of Numbers. In the event that, at any time after the Effective Date, the Units are converted into Successor Stock or any other securities pursuant to Section 13 of the LLC Agreement, the terms of this Agreement shall apply to the Successor Stock or such other securities. All numbers set forth herein that refer to Units (including, but not limited to, price per Unit) will be appropriately adjusted to reflect unit splits, combinations of units and other recapitalizations affecting the Units. If any capital reorganization or reclassification of the Units is effected in such a way that the holders of Units are entitled to receive securities (including Successor Stock) or other assets (including cash (but excluding any distributions in respect of taxes on Company income attributable to the Units and any ordinary cash dividends on any Successor Stock)) with respect to or in exchange for Units, then the provisions hereof (including, without limitation, the calculation of the Exercise Price upon exercise of the Call Option) shall be appropriately adjusted so that the terms hereof and the rights of the Optionholder hereunder shall be applicable as nearly as possible in relation to any such securities (including Successor Stock) or other assets in lieu of the Units. In the event that the Units are exchanged for, or converted into, Successor Stock, then any fractional shares that would be deliverable upon the exercise of the Call Option but for this sentence shall be deemed eliminated from this Agreement and the shares deliverable by a Unitholder shall be rounded down to the nearest whole number.

4. Representation and Warranties of the Unitholder; Covenants.

(a) The Unitholder hereby represents and warrants to the Optionholder as follows:

(i) The Unitholder is validly organized and existing and in good standing under the laws of the state of its organization and has full power and authority to enter into and to perform its obligations under this Agreement.

(ii) The Unitholder’s execution, delivery and performance of this Agreement have been duly authorized by all necessary limited liability company action, and this Agreement constitutes the legal, valid and binding obligation of the Unitholder, enforceable against the Unitholder in accordance with its terms, subject to limitations as to enforceability which might result from bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and subject to limitations on the availability of equitable remedies.

(iii) The Unitholder’s execution, delivery and performance of this Agreement will not (x) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to the Unitholder, (y) violate or contravene any provision of the Unitholder’s organizational documents, or (z) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which the Unitholder is a party or by which it or any of its properties may be bound or result in the creation of any lien thereunder.

(iv) The Unitholder’s Units subject to this Agreement are set forth in Section 1 above, and the Unitholder is, and at any Closing Date will be, the sole owner, beneficially and of record, of such Units, free and clear of all liens, encumbrances, security agreements and restrictions other than any restrictions imposed on the Units by the LLC Agreement, the Securityholders Agreement and state or federal securities laws.

(v) The Unitholder does not own and has not issued any other options, warrants or entitlements to any of the Units subject to this Agreement.

(b) The Optionholder and each of the Equityholders hereby jointly and severally represent and warrant to the Unitholder that they have such knowledge and experience in investing in securities generally, and such knowledge and experience with respect to the Company’s operations, financial position and risks in particular, so as to understand the risks and merits of investing in the Units.

(c) The Unitholder hereby covenants to the Optionholder that, from and after the Effective Date and until the Expiration Date, the Unitholder:

(i) will not transfer or sell, or grant, create or permit to exist any tax, lien, security interest, charge or other encumbrance with respect to the Units subject to this Agreement (the “Subject Units”) (provided that the Unitholder shall be permitted to exchange the Subject Units for Successor Stock or other securities pursuant to Article 13 of the LLC Agreement and the terms of this Agreement shall continue to apply to such Successor Stock or other securities and shall be permitted to enter into any IPO Holdback Agreement) other than those arising under the LLC Agreement, the Securityholders Agreement and state or federal securities laws. Notwithstanding the following, the Subject Units will be reduced to reflect any partial exercise of the Call Option;

(ii) will inform the Optionholder of any contemplated transfer of any of the Subject Units held by the Unitholder (which shall not affect the restrictions imposed by the immediately preceding paragraph (i)); and

(iii) will not take any voluntary action, or avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Unitholder, but will at all times in good faith assist in the carrying out of all the provisions of this Agreement.

5. Bring-Down of Representations and Warranties. The Unitholder hereby agrees that the representations and warranties set forth above in Section 4(a) shall be true and correct as of each Closing Date and as of any delivery of Net Units as though then made and as though such date was substituted for the date of this Agreement throughout such representations and warranties.

6. Transfer/Assignment Restrictions. The Optionholder shall not transfer, sell or convey the Call Option, or assign its rights or obligations under this Agreement, to any Person other than any of the Equityholders as of the Effective Date. In the event that the Optionholder transfers, sells or conveys the Call Option to a permitted transferee, such transferee shall expressly assume the terms and conditions of this Agreement. The Optionholder shall deliver written notice of any such transfer, including a copy of the instrument of transfer or assignment and the assumption by the transferee of the terms and conditions of this Agreement, to the Unitholder; and, in the absence of any such notice, the Unitholder shall be entitled to treat the Optionholder as the holder hereof for all purposes.

7. Transfer Registration. The Company hereby agrees to register any transfer of Units in its books and records, and such transfer shall be reflected in the LLC Agreement, in connection with any exercise of the Call Option in accordance with its terms.

9. Registration Rights. Upon any transfer of the Units to the Optionholder pursuant to Section 2, all rights and obligations of the Unitholder with respect to the transferred

Units under the Registration Rights Agreement shall immediately, and without further action, be transferred and assigned to Optionholder without representation or warranty as to the transferability of such rights or the nature of the rights so transferred; provided, that such rights shall be retained by the Unitholder if such rights are not severable between the transferred Units and the Units retained by the Unitholder. Any such transfer shall be conditioned upon Optionholder executing any required joinder to said Registration Rights Agreement.

10. Withholding Indemnification.

(a) The Optionholder and the Equityholders shall jointly and severally indemnify the Unitholder for any tax withholding amount (including interest and penalties and any and all expenses (including reasonable attorney and accountant fees) associated with any and all proceedings relating to such withholding amount) actually paid by the Unitholder (or any of its affiliates) resulting from any exercise of the Call Option by the Optionholder pursuant to this Agreement. Any such indemnification shall be paid upon a current basis as indemnifiable amounts are incurred, whether or not such indemnifiable amounts were correctly or legally imposed or asserted by the relevant governmental authority.

(b) Whenever the Unitholder or the Company becomes aware of an issue which either party believes could give rise to payment or indemnification by the Optionholder or the Equityholders under this Section 10, the Unitholder or the Company (as the case may be) shall promptly give notice of the issue to the Optionholder. The Optionholder and its representatives, at the Optionholder’s expense, shall be entitled to participate in all conferences, meetings or proceedings with the Internal Revenue Service or other taxing authority with respect to such issue and shall have the right to control any such proceeding, at its own expense, to the extent relating to indemnifiable amounts. Notwithstanding the foregoing, the Unitholder shall have the right (but not the obligation) to pay at any time any amounts asserted to be due by the relevant governmental authority and, if a payment or payments are so made by the Unitholder, (i) the Unitholder shall be promptly reimbursed for such payment as an indemnified amount and (ii) the Optionholder shall have the right to control any resulting refund proceeding, at its own expense.

11. Definitions. Capitalized terms used, but not defined in this Agreement, shall have the meaning set forth in the LLC Agreement, In addition, the following terms have the meaning set forth below:

“LLC Agreement” means the Fourth Amended and Restated Operating Agreement of the Company, dated as of the 21^st of July, 2011, as the same may be amended, restated or replaced in accordance with its terms.

“Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated association, corporation, other entity or government (whether federal, provincial, state, county, city or otherwise, including, but not limited to, any instrumentality, division, agency or department thereof).

“Registration Rights Agreement” means that certain Second Amended and Restated Registration Rights Agreement dated as of July 21, 2011 by and among the Company and the other parties thereto, as the same may be amended, restated or replaced in accordance with its terms.

“Securityholders Agreement” means the Fourth Amended and Restated Securityholders Agreement dated as of July 21, 2011 by and among the Company and the other parties thereto, as the same may be amended, restated or replaced (including by any successor or replacement stockholders agreement applicable to Successor Stock).

12. Notices. Any notices, consents or other communication required to be sent or given hereunder by any of the parties shall in every case be in writing and shall be deemed properly served if (a) delivered personally, (b) delivered by a recognized overnight courier service, (c) sent by facsimile transmission to the parties or (d) or mail at the addresses as set forth below or at such other addresses as may be furnished in writing.

To the Optionholder:

1818 Partners, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

With a copy, which shall not constitute notice, to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Suite 1900

Chicago, IL 60661

Attention: Howard S. Lanznar

Facsimile: (312) 902-1061

To Guggenheim:

DRP Holdco, LLC

330 Madison Avenue – 10^th Floor

New York, New York 10017

Attention: Kaitlin Trinh

Facsimile: (212) 644-8396

with copies, which shall not constitute notice, to:

Guggenheim Partners

100 Wilshire Boulevard – Suite 500

Santa Monica, California 90401

Attention: Zachary D. Warren

Facsimile: (310) 576-1271

and

Guggenheim Investment Management, LLC

330 Madison Avenue – 10^th Floor

New York, New York 10017

Attention: William Hagner

Facsimile: (212) 644-8396

and

Sidley Austin LLP

One South Dearborn

Chicago, IL 60603

Attention: Richard W. Astle

Facsimile: (312) 853-7036

To DRP:

Diamond Resorts Parent, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

with a copy, which shall not constitute notice, to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Suite 1900

Chicago, IL 60661

Attention: Howard S. Lanznar

Facsimile: (312) 902-1061

Date of service of such notice shall be (x) the date such notice is personally delivered, (y) the next succeeding business day after date of delivery to the overnight courier if sent by overnight courier, or (z) the next succeeding business day after machine confirmation of transmission by facsimile.

13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to principles of conflicts of law.

14. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated herein.

15. Amendment; Waiver. This Agreement cannot be terminated, altered or amended except pursuant to an instrument in writing signed by the each of Unitholder and the Optionholder, except that any of the terms or provisions of this Agreement may be waived in writing at any time by the party which is entitled to the benefits of such waived terms or provisions. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver or any other provision hereof (whether or not similar).

16. Third Parties. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, personal representatives, successors and permitted assigns.

17. Enforceability. If any provision of the Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render invalid or unenforceable any other provision of this Agreement, and the Agreement shall be carried out as if any such invalid or unenforceable provision were not contained herein.

18. Counterparts. This Agreement may be executed in one or more original, facsimile or PDF counterparts, each of which shall for all purposes be deemed an original and all of which shall constitute one and the same instrument.

19. Headings. The headings of sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.

[signature page follows]

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


THE UNITHOLDER:

DRP HOLDCO, LLC

By:	/s/ Zachary D. Warren
	Name:	Zachary D. Warren
	Title:	Authorized Person

[signature pages continue]

[Signature Page to Call Option Agreement]


THE OPTIONHOLDER:

1818 PARTNERS, LLC

By:	Chautauqua Management, LLC
Its:	Member

By:	/s/ David F. Palmer
Name:	David F. Palmer
Its:	Sole Manager

EQUITYHOLDERS OF OPTIONHOLDER:

CHAUTAUQUA MANAGEMENT, LLC

By:	/s/ David F. Palmer
	Name:	David F. Palmer
	Its:	Sole Manager

PRAESUMO PARTNERS, LLC

By:	/s/ Lowell D. Kraff
	Name:	Lowell D. Kraff
	Its:	Managing Member

CLOOBECK COMPANIES, LLC

By:	/s/ Stephen J. Cloobeck
	Name:	Stephen J. Cloobeck
	Its:	Sole Manager

[Signature Page to Call Option Agreement]


THE COMPANY:

DIAMOND RESORTS PARENT, LLC

By:		/s/ David F. Palmer
Name:		David F. Palmer
Its:		President

[Signature Page to Call Option Agreement]

EX-99.3 3 d578994dex993.htm EX-99.3 EX-99.3

CALL OPTION AGREEMENT

THIS CALL OPTION AGREEMENT (this “Agreement”) is effective as of July 21, 2011 (the “Effective Date”), by and among (i) Silver Rock Financial LLC, a Delaware limited liability company, IN – FP1 LLC, a Delaware limited liability company, BDIF LLC, a Delaware limited liability company, and CM – NP LLC, a Delaware limited liability company (collectively, the “Silver Rock Entities”), (ii) 1818 Partners, LLC, a Nevada limited liability company (the “Optionholder”), (iii) solely for the purposes of Sections 4(b) and 8, the equityholders of Optionholder listed on the signature page hereto (the “Equityholders”), and (iv) solely for the purposes set forth in Sections 7, 8 and 9, Diamond Resorts Parent, LLC, a Nevada limited liability company (the “Company”).

R E C I T A L S:

WHEREAS, each Silver Rock Entity (each a “Unitholder” and, collectively, the “Unitholders”) desires to grant the Optionholder an option to purchase certain Common Units of the Company from such Unitholder on the terms and conditions set forth herein.

1. Call Option. The Unitholders hereby grant the Optionholder an option (the “Call Option”) to purchase up to 11.162 Units (the “Units”), or any portion thereof, from the Unitholders for $485,948.44 per Unit (the “Exercise Price per Unit”) on a pro rata basis from each Unitholder as specified on Schedule 1 hereto. The Optionholder may (but shall not be obligated to) exercise the Call Option, in its sole discretion, as provided in Section 2 from the Effective Date through and including July 21, 2016 (the “Expiration Date”). In the event the Optionholder does not exercise the Call Option in full by the Expiration Date, the unexercised portion of the Call Option, and this Agreement, shall terminate and shall be of no force or further effect.

2. Manner of Exercise.

On and after the Effective Date, Optionholder may, from time to time prior to the Expiration Date: elect to exercise the Call Option to purchase for cash some or all of the number of Units remaining subject to this Agreement from each Unitholder on a pro rata basis from each Unitholder as provided in Schedule 1 by delivering a written notice (“Cash Exercise Notice”) to such Unitholder, which number shall not exceed the number of Units then remaining subject to the Call Option. A Cash Exercise Notice shall state that Optionholder is exercising the Call Option and the aggregate number of Units that the Optionholder desires to purchase from the Unitholders. Each Unitholder shall be obligated to sell to the Optionholder such Unitholder’s pro rata share (as provided in Schedule 1) of such aggregate number of Units specified in such Cash Exercise Notice (but not more than the number of Units then remaining subject to the Call Option) for an aggregate amount (the “Exercise Price”) equal to the product of (i) the number of

Units to be so sold by such Unitholder, and (ii) the Exercise Price per Unit. The date on which the Optionholder exercises the Call Option (in whole or in part) under this Section 2(a) shall be referred to herein as a “Closing Date.” On the Closing Date for such exercise, the Optionholder shall deliver to each Unitholder the applicable portion of the Exercise Price then payable by wire transfer of immediately available funds to an account specified by such Unitholder, and each Unitholder will transfer to the Optionholder the Units subject to the Call Notice free and clear of all claims, liens or encumbrances from any third parties other than any restrictions imposed on the Units by the LLC Agreement, the Securityholders Agreement or state or federal securities laws.

3. Successor Securities; Adjustment of Numbers. In the event that, at any time after the Effective Date, the Units are converted into Successor Stock or any other securities pursuant to Section 13 of the LLC Agreement, the terms of this Agreement shall apply to the Successor Stock or such other securities. All numbers set forth herein that refer to Units (including, but not limited to, price per Unit) will be appropriately adjusted to reflect unit splits, combinations of units and other recapitalizations affecting the Units. If any capital reorganization or reclassification of the Units is effected in such a way that the holders of Units are entitled to receive securities (including cash, but excluding any distributions in respect of taxes on Company income attributable to the Units and any ordinary cash dividends on any Successor Stock) with respect to or in exchange for Units, then the provisions hereof (including, without limitation, the calculation of the Exercise Price upon exercise of the Call Option) shall be appropriately adjusted so that the terms hereof and the rights of the Optionholder hereunder shall be applicable as nearly as possible in relation to any such securities (including Successor Stock) or other assets in lieu of the Units. In the event that the Units are exchanged for, or converted into, Successor Stock, then any fractional shares that would be deliverable upon the exercise of the Call Option but for this sentence shall be deemed eliminated from this Agreement and the shares deliverable by a Unitholder shall be rounded down to the nearest whole number.

4. Representation and Warranties of the Unitholders; Covenants.

(a) Each Unitholder hereby represents and warrants to the Optionholder as follows:

(i) Such Unitholder is validly organized and existing and in good standing under the laws of the state of its organization and has full power and authority to enter into and to perform its obligations under this Agreement.

(ii) Such Unitholder’s execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company, as the case may be, action, and this Agreement constitutes the legal, valid and binding obligation of the Unitholder, enforceable against the Unitholder in accordance with its terms, subject to limitations as to enforceability which might result from bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and subject to limitations on the availability of equitable remedies.

(iii) Such Unitholder’s execution, delivery and performance of this Agreement will not (x) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to the Unitholder, (y) violate or contravene any provision of the Unitholder’s organizational documents, or (z) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which the Unitholder is a party or by which it or any of its properties may be bound or result in the creation of any lien thereunder.

(iv) Such Unitholder’s Units subject to this Agreement are set forth in Section 1 above, and the Unitholder is, and at any Closing Date will be, the sole owner, beneficially and of record, of such Units, free and clear of all liens, encumbrances, security agreements and restrictions other than any restrictions imposed on the Units by the LLC Agreement, the Securityholders Agreement and state or federal securities laws.

(v) Such Unitholder does not own and has not issued any other options, warrants or entitlements to any of the Units subject to this Agreement.

(b) The Optionholder and each of the Equityholders hereby jointly and severally represent and warrant to each Unitholder that they have such knowledge and experience in investing in securities generally, and such knowledge and experience with respect to the Company’s operations, financial position and risks in particular, so as to understand the risks and merits of investing in the Units.

(c) Each Unitholder hereby covenants to the Optionholder that, from and after the Effective Date and until the Expiration Date, such Unitholder:

(i) will not transfer or sell, or grant, create or permit to exist any tax, lien, security interest, charge or other encumbrance with respect to the Units subject to this Agreement (the “Subject Units”) (provided that the Unitholder shall be permitted to exchange the Subject Units for Successor Stock or other securities pursuant to Article 13 of the LLC Agreement and the terms of this Agreement shall continue to apply to such Successor Stock or other securities and shall be permitted to enter into any IPO Holdback Agreement) other than those arising under the LLC Agreement, the Securityholders Agreement and state or federal securities laws. Notwithstanding the following, the Subject Units will be reduced proportionately to reflect any partial exercise of the Call Option;

(ii) will inform the Optionholder of any contemplated transfer of any of the Subject Units held by such Unitholder (which shall not affect the restrictions imposed by the immediately preceding paragraph (i)); and

(iii) will not take any voluntary action, or avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by such Unitholder, but will at all times in good faith assist in the carrying out of all the provisions of this Agreement.

5. Bring-Down of Representations and Warranties. Each Unitholder hereby agrees that the representations and warranties set forth above in Section 4(a) shall be true and correct as of each Closing Date as though then made and as though such date was substituted for the date of this Agreement throughout such representations and warranties.

6. Transfer/Assignment Restrictions. The Optionholder shall not transfer, sell or convey the Call Option, or assign its rights or obligations under this Agreement, to any Person other than any of its Equityholders as of the Effective Date. In the event that the Optionholder transfers, sells or conveys the Call Option to a permitted transferee, such transferee shall expressly assume the terms and conditions of this Agreement. The Optionholder shall deliver written notice of any such transfer, including a copy of the instrument of transfer or assignment and the assumption by the transferee of the terms and conditions of this Agreement, to the Unitholder; and, in the absence of any such notice, the Unitholders shall be entitled to treat the Optionholder as the holder hereof for all purposes.

8. Sale of Company. Upon a merger, consolidation, or sale or conveyance of all or substantially all of the Common Units, or all or substantially all of the assets, of the Company to any Person or other transaction that is effected in a way that holders of Common Units are entitled to receive (either directly or indirectly upon subsequent liquidation) cash, stock, securities, assets or other consideration with respect to, or in exchange for, Common Units, the Optionholder shall be deemed to have elected to exercise the Call Option in full as provided in Section 2 as of the closing of such merger, consolidation, sale, conveyance or other transaction; provided that the Optionholder shall be entitled to receive upon such exercise, without payment of any Exercise Price, the cash, stock, securities, assets or other consideration specified in such transaction (free and clear of all claims, liens or encumbrances from any third parties other than any restrictions imposed on the Units by state or federal securities laws) in respect of the number of Units equal to the result obtained by dividing (a) the product of (i) the aggregate number of Units then remaining subject to the Call Option, multiplied by (x) the difference obtained by subtracting the Exercise Price per Unit from the transaction consideration per Unit in such transaction (but in no event less than zero), by (ii) the transaction consideration per Unit in such transaction. The Company shall assist the Optionholder to receive such consideration in respect of such Units.

9. Registration Rights. Upon any transfer of Units to the Optionholder pursuant to Section 2, all rights and obligations of the applicable Unitholder with respect to the transferred

Units under the Registration Rights Agreement shall immediately, and without further action, be transferred and assigned to Optionholder without representation or warranty as to the transferability of such rights or the nature of the rights so transferred; provided, that such rights shall be retained by such Unitholder if such rights are not severable between the transferred Units and the Units retained by such Unitholder. Any such transfer shall be conditioned upon Optionholder executing any required joinder to said Registration Rights Agreement.

10. Withholding Indemnification.

(a) The Optionholder and the Equityholders shall jointly and severally indemnify each Unitholder for any tax withholding amount (including interest and penalties and any and all expenses (including reasonable attorney and accountant fees) associated with any and all proceedings relating to such withholding amount) actually paid by such Unitholder (or any of its affiliates) resulting from any exercise of the Call Option by the Optionholder with respect to such Unitholder pursuant to this Agreement. Any such indemnification shall be paid upon a current basis as indemnifiable amounts are incurred, whether or not such indemnifiable amounts were correctly or legally imposed or asserted by the relevant governmental authority.

(b) Whenever any Unitholder or the Company becomes aware of an issue which either party believes could give rise to payment or indemnification by the Optionholder or the Equityholders under this Section 8, such Unitholder or the Company (as the case may be) shall promptly give notice of the issue to the Optionholder. At the direction and expense of the Optionholder, the Company or the Unitholder, as applicable, shall contest with the IRS or other taxing authority the imposition or assessment of withholding tax (including interest and penalties). The Optionholder and its representatives, at the Optionholder’s expense, shall be entitled to participate in all conferences, meetings or proceedings with the IRS or other taxing authority with respect to such issue.

To the Optionholder:

1818 Partners, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

With a copy, which shall not constitute notice, to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Suite 1900

Chicago, IL 60661

Attention: Howard S. Lanznar

Facsimile: (312) 902-1061

To any Silver Rock Entity:

Silver Rock Financial LLC

1250 Fourth Street

Santa Monica, CA 90401

Attention: General Counsel

Facsimile: (310) 570-4599

With a copy, which shall not constitute notice, to:

Maron & Sandler

1250 Fourth Street

Santa Monica, CA 90401

Attention: David Kyman

Facsimile: (310) 570-4901

To DRP:

Diamond Resorts Parent, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

with a copy, which shall not constitute notice, to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Suite 1900

Chicago, IL 60661

Attention: Howard S. Lanznar

Facsimile: (312) 902-1061

13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to principles of conflicts of law.

14. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated herein.

15. Amendment; Waiver. This Agreement cannot be terminated, altered or amended except pursuant to an instrument in writing signed by the each of the Unitholder and the Optionholder, except that any of the terms or provisions of this Agreement may be waived in writing at any time by the party which is entitled to the benefits of such waived terms or provisions. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver or any other provision hereof (whether or not similar).

[signature page follows]

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


THE UNITHOLDERS:

SILVER ROCK FINANCIAL LLC

By:	/s/ Jeffrey M. Green
	Name:	Jeffrey M. Green
	Title:	Authorized Signatory

IN – FP1 LLC

By:	/s/ Jeffrey M. Green
	Name:	Jeffrey M. Green
	Title:	Authorized Signatory

BDIF LLC

By:	/s/ Jeffrey M. Green
	Name:	Jeffrey M. Green
	Title:	Authorized Signatory

CM – NP LLC

By:	By:	/s/ Jeffrey M. Green
	Name:	Jeffrey M. Green
	Title:	Authorized Signatory

[signature pages continue]

[Signature Page to Call Option Agreement]


THE OPTIONHOLDER:

1818 PARTNERS, LLC

By:	Chautauqua Management, LLC
Its:	Member

By:	/s/ David F. Palmer
Name:	David F. Palmer
Its:	Sole Manager

EQUITYHOLDERS OF OPTIONHOLDER:

CHAUTAUQUA MANAGEMENT, LLC

By:	/s/ David F. Palmer
	Name:	David F. Palmer
	Its:	Manager

PRAESUMO PARTNERS, LLC

By:	/s/ Lowell D. Kraff
	Name:	Lowell D. Kraff
	Its:	Managing Member

CLOOBECK COMPANIES, LLC

By:	/s/ Stephen J. Cloobeck
	Name:	Stephen J. Cloobeck
	Its:	Manager

THE COMPANY:

DIAMOND RESORTS PARENT, LLC

By:	/s/ David F. Palmer
Name:	David F. Palmer
Its:	President

[Signature Page to Call Option Agreement]

SCHEDULE 1


	Total Common Units Subject to Call Option		Pro Rata Share of Any Exercise
Silver Rock Financial LLC		3.348		30	%
IN – FP1 LLC		2.791		25	%
BDIF LLC		2.791		25	%
CM – NP LLC		2.232		20	%

TOTAL:		11.162		100.00	%

EX-99.8 4 d578994dex998.htm EX-99.8 EX-99.8

Execution Version

GUARANTY

THIS GUARANTY (this “Guaranty”) is dated as of the 18^th day of July, 2013 by Best Amigos Partners, LLC, a Nevada limited liability company (the “Guarantor”), and shall become effective as of the Effective Time (as defined in the Amendment dated as of the date hereof to the hereinafter defined Note Purchase Agreement).

WHEREAS, (i) Lowell D. Kraff (the “Borrower”), (ii) Midland National Life Insurance Company, an Iowa corporation, NZC Guggenheim Fund LLC, a Delaware limited liability company, and Security Benefit Life Insurance Company, a Kansas corporation (each of the entities in this clause (ii) is referred to individually as a “Lender,” and collectively as the “Lenders”), (iii) Guggenheim Corporate Funding, LLC, a Delaware limited liability company, as Account Holder, and (iv) Guggenheim Corporate Funding, LLC, a Delaware limited liability company, as Collateral Agent (the “Collateral Agent”), have entered into a Note Purchase Agreement dated as of December 12, 2011, as amended (as amended, the “Note Purchase Agreement”); and

WHEREAS, the Guarantor is financially interested in the Borrower and has agreed to guarantee pursuant to the terms and conditions set forth in this Guaranty (the following items collectively are referred to as the “Obligations”): (i) the payment by the Borrower of all amounts due and payable under the Notes (as defined in the Note Purchase Agreement) issued by the Borrower to the Lenders pursuant to the Note Purchase Agreement and (ii) the performance by the Borrower of its obligations pursuant to the Notes.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:

The Guarantor hereby unconditionally guarantees to the Lenders the full and prompt payment and performance of the Obligations on the terms and conditions set forth in this Guaranty.

If an Event of Default (as such term is defined in the Notes) shall have occurred, the Guarantor shall pay to the Lenders, upon written notice thereof and in immediately available funds, the full amount of the Obligations not theretofore satisfied by the Borrower with respect to the Notes.

To secure the prompt payment of Guarantor’s liabilities hereunder, Guarantor (a) pledges and grants to Collateral Agent, as agent for the Lenders, (i) a security interest in and to all of Guarantor’s rights and interests, now owned or hereafter acquired, in 421,880 shares of the common stock, $0.01 par value per share, of Diamond Resorts International, Inc., a Delaware corporation (“DRI”), owned directly or indirectly by Guarantor (the “Pledged DRI Shares”), and any certificates representing such Pledged DRI Shares, (ii) all substitutions, replacements of and additions to the Pledged DRI Shares, including without limit, any cash distributions with

respect to the Pledged DRI Shares, and (iii) all proceeds of the foregoing, and (b) authorizes Collateral Agent or any of the Lenders to file a financing statement necessary to perfect the security interest of Lenders hereunder.

All certificates, instruments or documents, if any, representing or evidencing the Pledged DRI Securities shall be delivered to and held by or on behalf of the Collateral Agent pursuant hereto, shall be in suitable form for transfer by delivery and shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Collateral Agent. In the event any or all of the Pledged DRI Shares are evidenced by a book entry, Guarantor shall execute and deliver or cause to be executed and delivered to the Collateral Agent such control agreements, documents, and agreements as are reasonably required by the Collateral Agent to create and perfect a security interest in such uncertificated Pledged DRI Shares. In addition, the Collateral Agent shall have the right at any time to exchange certificates or instruments representing or evidencing Pledged DRI Shares for certificates or instruments of smaller or larger denominations.

The Guarantor hereby agrees that, except as hereinafter provided, its obligations under this Guaranty shall be unconditional, irrespective of (i) the validity or enforceability of the Obligations or other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect the Obligations from the Borrower, any other guarantor of the Obligations or any other party obligated with respect to the Obligations or other action to enforce the same, (iii) the waiver or consent by any Lender with respect to any provision of any instrument evidencing the Obligations, or any part thereof, or any other agreement now or hereafter executed by the Borrower and delivered to the Collateral Agent or any of the Lenders, (iv) failure by the Collateral Agent or any of the Lenders to take any steps to perfect and maintain a security interest in, or to preserve its rights to, any security or collateral for the Obligations, (v) the Collateral Agent’s or any Lender’s election, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any Lender’s claim(s) for repayment of the Obligations, or (viii) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.

Notwithstanding anything to the contrary contained in this Guaranty, Collateral Agent’s and the Lenders’ sole right to recover from Guarantor under this Guaranty shall be limited to the Pledged DRI Shares, and Collateral Agent and the Lenders shall not have any right of recourse against any other assets of Guarantor arising out of this Guaranty.

The Guarantor hereby waives presentment, demand of payment, notice of dishonor and protest with respect to the Obligations.

The Guarantor hereby represents and warrants to the Lenders as follows:

(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)

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.

From time to time, at its own expense, Guarantor will promptly execute and deliver all further instruments and documents, and take all further action, that Collateral Agent, on behalf of one or more of the Lenders, or any Lender may reasonably request, in order to perfect and protect the security interest granted pursuant to this Guaranty, to create, perfect or protect the security interest purported to be granted by this Guaranty or to enable Collateral Agent, on behalf of one or more of the Lenders, or any Lender to exercise and enforce its rights and remedies hereunder or under the Notes with respect to any of the Pledged DRI Shares. Guarantor authorizes the filing by Collateral Agent, on behalf of the Lenders, or any Lender of financing or continuation statements, or amendments thereto, and Guarantor will execute and deliver to Collateral Agent or any such Lender such other instruments or notices, as Collateral Agent or any such Lender may reasonably request, in order to perfect and preserve the security interest granted or purported to be granted under this Guaranty.

Guarantor agrees to pay on demand all costs and expenses, if any (including counsel fees and expenses of outside counsel and of internal counsel), incurred by Collateral Agent or the Lenders in connection with the collection and enforcement (whether through negotiations, legal proceedings or otherwise) of the Notes or this Guaranty, including reasonable counsel fees and expenses in connection with the enforcement of rights under this paragraph.

Any notices or communications to be sent hereunder by the Guarantor, the Collateral Agent or the Lenders shall in every case be in writing and shall be deemed properly served if (a) delivered personally, (b) sent by registered or certified mail, in all such cases with first class postage prepaid, return receipt requested, (c) delivered by a recognized overnight courier service, or (d) sent via facsimile or e-mail, to the parties as set forth below or at such other addresses as may be furnished in writing.

To the Guarantor at:

Best Amigos Partners, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Lowell D. Kraff

Facsimile: (702) 798-8840

Email: lowell.kraff@trivergance.com

with a copy to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Suite 1900

Chicago, IL 60661

Attention: Howard S. Lanznar

Facsimile: (312) 902-1061

Email: howard.lanznar@kattenlaw.com

To a Lender at its address shown in Schedule I to this Guaranty, with copies, which shall not constitute notice, to:

Guggenheim Partners

100 Wilshire Boulevard – Suite 500

Santa Monica, California 90401

Attention: Zachary D. Warren

Facsimile: (310) 576-1271

Email: zachary.warren@guggenheimpartners.com

and

Guggenheim Investment Management, LLC

330 Madison Avenue – 10^th Floor

New York, New York 10017

Attention: William Hagner

Facsimile: (212) 644-8396

and

Sidley Austin LLP

One South Dearborn

Chicago, IL 60603

Attention: Richard W. Astle

Facsimile: (312) 853-7036

Email: rastle@sidley.com

To the Collateral Agent at:

Guggenheim Corporate Funding, LLC

330 Madison Avenue – 10^th Floor

New York, New York 10017

Attention: Kaitlin Trinh

Facsimile: (212) 651-0840

with copies, which shall not constitute notice, to:

Guggenheim Partners

100 Wilshire Boulevard – Suite 500

Santa Monica, California 90401

Attention: Zachary D. Warren

Facsimile: (310) 576-1271

Email: zachary.warren@guggenheimpartners.com

and

Guggenheim Investment Management, LLC

330 Madison Avenue – 10^th Floor

New York, New York 10017

Attention: William Hagner

Facsimile: (212) 644-8396

and

Sidley Austin LLP

One South Dearborn

Chicago, IL 60603

Attention: Richard W. Astle

Facsimile: (312) 853-7036

Email: rastle@sidley.com

Wherever possible each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

discretion and election of Collateral Agent or any Lender, only in courts having jurisdiction within Clark County, Nevada. The Guarantor hereby consents and submits to the jurisdiction of any local, state or federal court located within said city and state. The Guarantor hereby waives any right it may have to transfer or change the venue of any litigation brought against the Guarantor in accordance with this paragraph. The Guarantor, the Collateral Agent and the Lenders hereby irrevocably waive the right to trial by jury with respect to any action in which the Collateral Agent, the Lenders and the Guarantor are parties which arises out of, relates to or is in connection with this Guaranty.

Delivery of an executed counterpart of this Guaranty by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Agreement. If delivered by telefacsimile or other electronic method of transmission, an original executed counterpart of this Agreement shall also be delivered but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Guaranty.

[Signature Page Follows]

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the day and year first written above.


BEST AMIGOS PARTNERS, LLC

By:		/s/ Lowell D. Kraff
Name:		Lowell D. Kraff
Title:		Manager

[Signature Page to Guaranty]

SCHEDULE I

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 – 10^th 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 – 10^th 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 – 10^th Floor

New York, New York 10017

EX-99.9 5 d578994dex999.htm EX-99.9 EX-99.9

GUARANTY

This GUARANTY (this “Guaranty”) is dated as of the 12th day of December, 2011 by LDK Holdco, LLC, a Delaware limited liability company (the “Guarantor”).

WHEREAS, (i) Lowell D. Kraff (the “Borrower”), (ii) Midland National Life Insurance Company, an Iowa corporation, NZC Guggenheim Fund LLC, a Delaware limited liability company, and Security Benefit Life Insurance Company, a Kansas corporation (each of the entities in this clause (ii) is referred to individually as a “Lender,” and collectively as the “Lenders”), (iii) Guggenheim Corporate Funding, LLC, a Delaware limited liability company, as Account Holder, and (iv) Guggenheim Corporate Funding, LLC, a Delaware limited liability company, as Collateral Agent, have entered into a Note Purchase Agreement dated the date hereof (the “Note Purchase Agreement”); and

WHEREAS, the Guarantor is financially interested in the Borrower and has agreed to guarantee pursuant to the terms and conditions set forth in this Guaranty (the following items collectively are referred to as the “Obligations”): (i) the payment by the Borrower of all amounts due and payable under the promissory notes issued by the Borrower to the Lenders on the date hereof (the “Notes”) pursuant to the Note Purchase Agreement and (ii) the performance by the Borrower of its obligations pursuant to the Notes.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:

The Guarantor hereby unconditionally guarantees to the Lenders the full and prompt payment and performance of the Obligations on the terms and conditions set forth in this Guaranty.

To secure the prompt payment of Guarantor’s liabilities hereunder, Guarantor (a) pledges and grants to Collateral Agent, as agent for the Lenders, (i) a security interest in and to all of Guarantor’s rights and interests, now owned or hereafter acquired, in 2.656 Common Units of Diamond Resorts Parent, LLC, a Nevada limited liability company (“DRP”), owned directly or indirectly by Guarantor (the “Pledged DRP Units”), (ii) all substitutions, replacements of and additions to the Pledged DRP Units, including without limit, any cash distributions with respect to the Pledged DRP Units, and (iii) all proceeds of the foregoing, and (b) authorizes Collateral Agent or any of the Lenders to file a financing statement necessary to perfect the security interest of Lenders hereunder.

The Guarantor hereby agrees that, except as hereinafter provided, its obligations under this Guaranty shall be unconditional, irrespective of (i) the validity or enforceability of the

Obligations or other document evidencing all or any part of the Obligations, (ii) the absence of any attempt to collect the Obligations from the Borrower, any other guarantor of the Obligations or any other party obligated with respect to the Obligations or other action to enforce the same, (iii) the waiver or consent by the Lender with respect to any provision of any instrument evidencing the Obligations, or any part thereof, or any other agreement now or hereafter executed by the Borrower and delivered to the Collateral Agent or any of the Lenders, (iv) failure by the Collateral Agent or any of the Lenders to take any steps to perfect and maintain a security interest in, or to preserve its rights to, any security or collateral for the Obligations, (v) the Collateral Agent’s or any of the Lender’s election, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by the Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any of the Lender’s claim(s) for repayment of the Obligations, or (viii) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.

The Guarantor hereby waives presentment, demand of payment, notice of dishonor and protest with respect to the Obligations.

The Guarantor hereby represents and warrants to the Lenders as follows:

(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)

(iii)

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.

From time to time, at its own expense, Guarantor will promptly execute and deliver all further instruments and documents, and take all further action, that Collateral Agent, on behalf of one or more of the Lenders, or any Lender may reasonably request, in order to perfect and protect the security interest granted pursuant to this Guaranty, to create, perfect or protect the security interest purported to be granted by this Guaranty or to enable Collateral Agent, on behalf of one or more of the Lenders, or any Lender to exercise and enforce its rights and remedies hereunder or under the Notes with respect to any of the Pledged DRP Units. Guarantor authorizes the filing by Collateral Agent, on behalf of the Lenders, or any Lender of financing or continuation statements, or amendments thereto, and Guarantor will execute and deliver to Collateral Agent or any such Lender such other instruments or notices, as Collateral Agent or any such Lender may reasonably request, in order to perfect and preserve the security interest granted or purported to be granted under this Guaranty.

To the Guarantor at:

LDK Holdco, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: David F. Palmer

Facsimile: (702) 798-8840

Email: david.palmer@diamondresorts.com

with a copy to:

Katten Muchin Rosenman LLP

525 West Monroe Street

Suite 1900

Chicago, IL 60661

Attention: Howard S. Lanznar

Facsimile: (312) 902-1061

Email: howard.lanznar@kattenlaw.com

To a Lender at its address shown in Schedule I to this Guaranty, with copies, which shall not constitute notice, to:

Guggenheim Partners

100 Wilshire Boulevard – Suite 500

Santa Monica, California 90401

Attention: Zachary D. Warren

Facsimile: (310) 576-1271

Email: zachary.warren@guggenheimpartners.com

and

Guggenheim Investment Management, LLC

135 East 57th Street

New York, New York 10022

Attention: William Hagner

Facsimile: (212) 644-8396

and

Sidley Austin LLP

One South Dearborn

Chicago, IL 60603

Attention: Richard W. Astle

Facsimile: (312) 853-7036

Email: rastle@sidley.com

To the Collateral Agent at:

Guggenheim Corporate Funding, LLC

135 East 57^th Street

New York, New York 10022

Attention: Kaitlin Trinh

Facsimile: (212) 651-0840

with copies, which shall not constitute notice, to:

Guggenheim Partners

100 Wilshire Boulevard – Suite 500

Santa Monica, California 90401

Attention: Zachary D. Warren

Facsimile: (310) 576-1271

Email: zachary.warren@guggenheimpartners.com

and

Guggenheim Investment Management, LLC

135 East 57th Street

New York, New York 10022

Attention: William Hagner

Facsimile: (212) 644-8396

and

Sidley Austin LLP

One South Dearborn

Chicago, IL 60603

Attention: Richard W. Astle

Facsimile: (312) 853-7036

Email: rastle@sidley.com

This Guaranty is submitted to the Lenders at the Collateral Agent’s principal place of business and shall be deemed to have been made thereat. This Guaranty shall be governed and controlled as to interpretation, enforcement, validity, construction, effect and in all other respects by the law, statutes and decisions of the State of Nevada. The Guarantor, in order to induce the Lenders to accept this Guaranty, agrees that all actions or proceedings arising directly, indirectly or otherwise in connection with, out of, related to, or from, this Guaranty shall be litigated, at the discretion and election of Collateral Agent or any Lender, only in courts having jurisdiction within Clark County, Nevada. The Guarantor hereby consents and submits to the jurisdiction of any local, state or federal court located within said city and state. The Guarantor hereby waives any right it may have to transfer or change the venue of any litigation brought against the Guarantor in accordance with this paragraph. The Guarantor, the Collateral Agent and the Lenders hereby irrevocably waive the right to trial by jury with respect to any action in which the Collateral Agent, the Lenders and the Guarantor are parties which arises out of, relates to or is in connection with this Guaranty.

[Signature Page Follows]

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the day and year first written above.


LDK HOLDCO, LLC

By:		/s/ Lowell D. Kraff
Name:		Lowell D. Kraff
Title:		Manager

[Signature Page to Guaranty]

SCHEDULE I

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 57^th Street, 6^th 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 57^th Street, 6^th 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 57^th Street, 6^th Floor

New York, New York 10022

EX-99.12 6 d578994dex9912.htm EX-99.12 EX-99.12

Exhibit 12

JOINT FILING AGREEMENT

The undersigned hereby agree that this Statement on Schedule 13D, dated the date hereof, with respect to the shares of common stock of Diamond Resorts International, Inc., is, and any amendments thereto signed by the undersigned shall be, filed on behalf of each of the undersigned pursuant to, and in accordance with, the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended.

Dated: August 5, 2013

BEST AMIGOS PARTNERS, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for Best Amigos Partners, LLC

Jared T. Finkelstein, attorney-in-fact for Best Amigos Partners, LLC

DIAMOND OURSURANCE, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for Diamond Oursurance, LLC

Jared T. Finkelstein, attorney-in-fact for Diamond Oursurance, LLC

LDK HOLDCO, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for LDK Holdco, LLC

Jared T. Finkelstein, attorney-in-fact for LDK Holdco, LLC

/s/ Jared T. Finkelstein, as attorney-in-fact for Lowell D. Kraff

Jared T. Finkelstein, attorney-in-fact for Lowell D. Kraff