AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 10.7
Execution Version
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is dated as of June 17, 2010 by
and among Diamond Resorts Parent, LLC, a Nevada limited liability company (the “Company”),
Xxxxx Strategic Partners LP, a Delaware limited partnership (“Xxxxx”), DRP Holdco, LLC, a
Delaware limited liability company (“Guggenheim”), and Cloobeck Diamond Parent, LLC, a
Nevada limited liability company (“CDP”).
WHEREAS, the Company, Xxxxx and CDP entered into that certain Registration Rights Agreement,
dated as of April 26, 2007 (the “Original Agreement”);
WHEREAS, Section 11(b) of the Original Agreement provides that the Original Agreement may be
amended upon the prior written consent of (i) the Company, (ii) the holders of at least a majority
of the CDP Registrable Securities, and (iii) the holders of at least a majority of the Xxxxx
Registrable Securities; and
WHEREAS, the undersigned, being (i) the Company, (ii) the holders of at least a majority of
the CDP Registrable Securities, (iii) the holders of at least a majority of the Xxxxx Registrable
Securities, and (iv) Guggenheim, desire to amend and restate the Original Agreement to, among other
things, provide registration rights to Guggenheim, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the following meanings.
“CDP Registrable Securities” means (i) all Common Units acquired by, or issued or
issuable to CDP on or after April 26, 2007, and (ii) all equity securities issued or issuable
directly or indirectly with respect to any Common Units described in clause (i) above by way of a
unit or stock dividend or unit or stock split or in connection with a combination of units or
shares, recapitalization, merger, consolidation or other reorganization. As to any particular CDP
Registrable Securities, such securities shall cease to be CDP Registrable Securities when they have
been registered under the Securities Act, sold to the public in compliance with Rule 144 or sold in
a private transaction in which the transferor’s rights under this Agreement are not assigned.
“Common Units” shall have the meaning ascribed to such term in the LLC Agreement, but
shall also include any Successor Stock, as defined in Article 13 of the LLC Agreement.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.
“Guggenheim Registrable Securities” means (i) all Common Units acquired by, or issued
or issuable to Guggenheim on or after the date hereof, and (ii) all equity securities issued or
issuable directly or indirectly with respect to any Common Units described in clause (i) above by
way of a unit or stock dividend or unit or stock split or in connection with a combination of units
or shares, recapitalization, merger, consolidation or other reorganization. As to any particular
Guggenheim Registrable Securities, such securities shall cease to be Guggenheim Registrable
Securities when they have been registered under the Securities Act, sold to the public in
compliance with Rule 144 or sold in a private transaction in which the transferor’s rights under
this Agreement are not assigned.
“Investors” means Xxxxx and Guggenheim. “Investor” means Xxxxx or Guggenheim.
“Investor Registrable Securities” means, collectively, the Xxxxx Registrable
Securities and the Guggenheim Registrable Securities.
“LLC Agreement” means the Amended and Restated Operating Agreement of the Company,
dated as of the date hereof, as amended and/or restated from time to time.
“Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, a bank, a trust company, a land trust, a business trust, a governmental entity or any
department, agency or political subdivision thereof or any other entity or organization, whether or
not it is a legal entity.
“Preferred Units” shall have the meaning ascribed to such term in the LLC Agreement.
“Public Offering” means an underwritten public offering and sale of Common Units or
any other type of equity securities that, if held by CDP or an Investor, would constitute
Registrable Securities, pursuant to an effective registration statement under the Securities Act;
provided that a Public Offering shall not include an offering made in connection with a business
acquisition or combination pursuant to a registration statement on Form S-4 or any similar form, or
an employee benefit plan pursuant to a registration statement on Form S-8 or any similar form.
“Registrable Securities” means, collectively, the CDP Registrable Securities and the
Investor Registrable Securities.
“Registration Expenses” means all expenses (other than underwriting discounts and
commissions) incident to the Company’s performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing and distributing expenses, messenger and delivery expenses,
fees and expenses of custodians, internal expenses (including all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system,
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and fees and disbursements of counsel for the Company and the underwriters and all independent
certified public accountants and other Persons retained by the Company.
“Rule 144” means Rule 144 under the Securities Act (or any similar rule then in
force).
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“Xxxxx Registrable Securities” means (i) all Common Units acquired by, or issued or
issuable to Xxxxx on or after April 26, 2007, and (ii) all equity securities issued or issuable
directly or indirectly with respect to any Common Units described in clause (i) above by way of a
unit or stock dividend or unit or stock split or in connection with a combination of units or
shares, recapitalization, merger, consolidation or other reorganization. As to any particular Xxxxx
Registrable Securities, such securities shall cease to be Xxxxx Registrable Securities when they
have been registered under the Securities Act, sold to the public in compliance with Rule 144 or
sold in a private transaction in which the transferor’s rights under this Agreement are not
assigned.
2. Demand Registrations.
(a) Requests for Registration.
(i) At any time after an initial Public Offering, the holder(s) of a majority of the
Investor Registrable Securities may request registration under the Securities Act of all or
any portion of their Registrable Securities on Form S-1 or any similar
long-form registration (a
“Long-Form Registration”), or on Form S-2 or S-3
or any similar short-form registration (a “Short-Form Registration”) if such a
short form is available.
(ii) All registrations requested pursuant to this Section 2(a) are referred to herein
as “Demand Registrations”. Each request for a Demand Registration (a “Demand
Request”) shall specify the approximate number of Registrable Securities requested to be
registered, the anticipated method or methods of distribution and the anticipated per share
price range for such offering. Within ten (10) days after receipt of any such Demand
Request, the Company will give written notice of such requested registration (which shall
specify the intended method of disposition of such Registrable Securities) to all other
holders of Registrable Securities (a “Company Notice”) and the Company will include
(subject to the provisions of this Agreement) in such registration, all Registrable
Securities with respect to which the Company has received written requests for inclusion
therein within thirty (30) days after the delivery of such Company Notice; provided that any
such other holder may withdraw its request for inclusion at any time prior to executing the
underwriting agreement or, if none, prior to the applicable registration statement becoming
effective.
(b) Long-Form Registrations. The holders of a majority of the Investor
Registrable Securities shall be entitled to initiate three
(3) Long-Form Registrations;
provided
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that any such Long-Form Registration must include the registration of Registrable
Securities which yield at least $10,000,000 of net proceeds to the sellers of such Registrable
Securities; provided further, that if any registration is withdrawn at the request of the holders
of a majority of the Investor Registrable Securities after such registration was initiated
hereunder, such registration shall count as a Long-Form Registration notwithstanding such
withdrawal. The Company will pay all Registration Expenses in connection with any registration
initiated as a Long-Form Registration whether or not it has become effective.
(c) Short-Form Registrations. The holders of a majority of the Investor Registrable
Securities shall be entitled to initiate unlimited Short-Form Registrations; provided that any such
Short-Form Registration must include the registration of Registrable Securities which yield at
least $5,000,000 of net proceeds to the sellers of such Registrable Securities. Demand
Registrations by holders of a majority of the Investor Registrable Securities will be Short-Form
Registrations whenever the Company is permitted to use any applicable short form. After the Company
has become subject to the reporting requirements of the Exchange Act, the Company will use its
reasonable best efforts to make Short-Form Registrations on Form S-3 available for the sale of
Investor Registrable Securities. The Company will pay all Registration Expenses in connection with
any registration initiated as a Short-Form Registration by the holders of a majority of the
Investor Registrable Securities whether or not it has become effective.
(d) Priority on Demand Registrations. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company that, in their opinion, inclusion of the
number of Investor Registrable Securities and, if permitted hereunder, other securities, requested
to be included in such offering exceeds the number of Registrable Securities and other securities,
if any, which can be sold in an orderly manner in such offering within a price range acceptable to
holder(s) of a majority of the Registrable Securities initiating such Demand Registration pursuant
to Section 2(a) and without adversely affecting the marketability of the offering, then the Company
will include in such Demand Registration (A) first, the number of Investor Registrable Securities
requested to be included in such Demand Registration, pro rata from among the holders of such
Investor Registrable Securities according to the number of Registrable Securities requested by them
to be so included, and (B) second, any other securities of the Company requested to be included in
such registration, in such manner as the Company may determine.
(e) Restrictions on Demand Registrations.
(i) The Company will not be obligated to file any registration statement
with respect to any Demand Registration within 180 days after (A) the effective date of a
previous Demand Registration, (B) the date any previously requested Demand Registration was
withdrawn at the request of the holders of a majority of the Investor Registrable
Securities, or (C) the effective date of a previous registration statement filed by the
Company covering a firm commitment Public Offering; provided, that in any registration
statement described in clauses (A) and (C), there were included in such
registration statement not less than 80% of the number of Investor Registrable Securities
requested to be included.
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(ii) The Company may postpone for up to 90 days the filing or the effectiveness of a
registration statement for a Demand Registration if the Company determines that such Demand
Registration would reasonably be expected to have a material adverse effect on any proposal
or plan by the Company or any of its subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction; provided that in such event the holders of
Registrable Securities initiating such Demand Registration pursuant to Section 2(a) will be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations hereunder and the
Company will pay all Registration Expenses in connection with such requested registration.
The Company may use the provisions of this clause (ii) to delay a Demand
Registration initiated by holders of Investor Registrable Securities only once during any
twelve-month period.
(f) Selection of Underwriters. If a requested registration pursuant to this Section 2
involves an underwritten offering, the underwriter or underwriters thereof shall be selected by the
holders of at least a majority of Investor Registrable Securities as to which registration has been
requested and shall be acceptable to the Company; provided, that the Company shall not unreasonably
withhold its acceptance of any proposed underwriters.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its Common
Units under the Securities Act for its own account or for the account of any holder of Common Units
(other than pursuant to a Demand Registration (in which case, the ability of a holder of
Registrable Securities to participate in such Demand Registration shall be governed by Section 2
hereof, including Section 2(a)(ii) hereof)), other than pursuant to a registration statement on Form
S-4 or S-8 or any similar or successor form, other than in connection with a registration the
primary purpose of which is to register debt securities (i.e., in connection with a
so-called “equity kicker”), and other than in connection with an initial Public Offering) (a
“Piggyback Registration”), the Company will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and of such holders’ rights
under this Section 3(a). Upon the written request of any holder of Registrable Securities (which
request shall specify the Registrable Securities intended to be disposed of by such holder and the
intended method of disposition thereof), the Company shall include in such registration (subject to
the provisions of this Agreement) all Registrable Securities requested to be registered pursuant to
this Section 3(a), subject to Section 3(b) below, with respect to which the Company has received
written requests for inclusion therein within thirty (30) days after the receipt of the Company’s
notice; provided that any such other holder may withdraw its request for inclusion at any time
prior to executing the underwriting agreement or, if none, prior to the applicable registration
statement becoming effective.
(b) Priority on Primary Registrations. If a Piggyback Registration is in part an
underwritten primary registration on behalf of the Company and the managing underwriters advise the
Company that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such offering within a
price range acceptable to the Company and without adversely affecting the
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marketability of the offering, then the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, up to 50% of the Investor
Registrable Securities requested to be included in such registration, (iii) third, the Registrable
Securities requested to be included in such registration, pro rata from among the holders of such
Registrable Securities according to the number of Registrable Securities requested by them to be so
included, and (iv) fourth, any other securities requested to be included in such registration, in
such manner as the Company may determine.
( c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters advise the Company that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in an orderly manner in
such offering within a price range acceptable to the holders initially requesting such registration
and without adversely affecting the marketability of the offering, then the Company will include in
such registration (i) first, up to 50% of the Investor Registrable Securities requested to be
included in such registration, (ii) second, the Registrable Securities requested to be included in
such registration, pro rata from among the holders of such Registrable Securities according to the
number of Registrable Securities requested by them to be so included, and (iii) third, any other
securities requested to be included in such registration, in such manner as the Company may
determine
(d) Registration Expenses. The Company will pay all Registration Expenses in
connection with any Piggyback Registration whether or not such Piggyback Registration has become
effective.
4. Holdback Agreements.
(a) Each holder of Registrable Securities hereby agrees (i) not to effect any sale or
distribution of Common Units, or any securities convertible into or exchangeable or exercisable for
Common Units, during the seven (7) days prior to and the 180-day period beginning on the
effective date of an initial Public Offering (except as part of such initial Public Offering),
unless the underwriters managing such initial Public Offering otherwise agree (which agreement
shall be equally applicable to all holders of Registrable Securities) and (ii) to execute and
deliver any reasonable agreement which is consistent with the provisions of clause (i) of this
Section 4(a) and which may be required by the underwriters managing such initial Public Offering.
(b) The Company will not effect any sale or distribution of Common Units, or any securities
convertible into or exchangeable or exercisable for Common Units, during the seven days prior to
and during the 180-day period beginning on the effective date of an initial Public Offering (except
as part of such initial Public Offering), unless the underwriters managing such initial Public
Offering otherwise agree (which agreement shall be equally applicable to all holders of Registrable
Securities).
5. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such Registrable
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Securities in accordance with the intended method of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected pursuant to Section 6(b)
below copies of all such documents proposed to be filed, which documents will be subject to the
prompt review and reasonable comment of such counsel), and upon filing such documents, the Company
shall promptly notify in writing such counsel of the receipt by the Company of any written comments
by the SEC with respect to such registration statement or prospectus or any amendment or supplement
thereto or any written request by the SEC for the amending or supplementing thereof or for
additional information with respect thereto;
(b) notify each holder of Registrable Securities of the effectiveness of each registration
statement filed hereunder and prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of not less than 180 days or, if such
registration statement relates to an underwritten offering, such longer period as, in the opinion
of counsel for the underwriters, a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by any underwriter or dealer or such shorter period as will
terminate when all of the securities covered by such registration statement have been disposed of
in accordance with the intended methods of disposition by the seller or sellers thereof as set
forth in such registration statement (but in any event not before the expiration of any longer
period required under the Securities Act), and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the sellers thereof set forth
in such registration statement and cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities
Act;
(c) furnish to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions in the United States of America as any seller
reasonably requests and do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction in any
jurisdiction where it is not so subject or (iii) consent to
general service of process (i.e., service of process which is not limited solely to securities law violations)
in any such jurisdiction in any jurisdiction where it is not so subject);
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(e) promptly notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities Act, upon discovery
that, or upon the discovery of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not misleading in light of the circumstances
under which they were made, and, at the request of any such seller, the Company will, as soon as
reasonably practicable, file and furnish to all sellers a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in light of the circumstances under which
they were made;
(f) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed and, if not so listed, to be listed on the
Nasdaq National Market System (“Nasdaq Market”) and, if listed on the Nasdaq Market, use
its best efforts to secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq “National Market System security” within the meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure Nasdaq Market authorization for such
Registrable Securities and, without limiting the generality of the foregoing, to arrange for at
least two (2) market makers to register as such with respect to such Registrable Securities with
the National Association of Securities Dealers;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other customary actions as the holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including, without limitation, effecting
a split or a combination of stock or units); provided that no holder of Registrable Securities
shall have any indemnification or contribution obligations inconsistent with Section 7 hereof;
(i) make available for inspection upon reasonable notice during the Company’s regular business
hours by any underwriter participating in any disposition pursuant to such registration statement
and any attorney, accountant or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information and
participate in due diligence sessions reasonably requested by any such underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and regulations of the
SEC, and make available to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months beginning with the first day of the
Company’s first full calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
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(k) use reasonable best efforts to prevent the issuance of any stop order (“Stop
Order”) suspending the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of any securities
included in such registration statement for sale in any jurisdiction, and, in the event of such
issuance, the Company shall immediately notify the holders of Registrable Securities included in
such registration statement of the receipt by the Company of such notification and shall use its
best efforts promptly to obtain the withdrawal of such order;
(l) use its best efforts to cause such Registrable Securities covered by such registration
statement to be registered with or approved by such other governmental agencies or authorities as
may be necessary to enable the sellers thereof to consummate the disposition of such Registrable
Securities, and cooperate and assist with any filings to be made with the NASD;
(m) obtain one or more “cold comfort” letters, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), signed by the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by “cold
comfort” letters as the managing underwriter may reasonably expect and reasonably satisfactory to
the holders of a majority of the Registrable Securities being sold reasonably request; and
(n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such
registration statement (and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement) in customary form and covering such
matters of the type customarily covered by legal opinions of such nature if requested by the
managing underwriter.
If any such registration or comparable statement refers to any holder by name or otherwise as
the holder of any securities of the Company and if in such holder’s sole and exclusive judgment,
such holder is or might be deemed to be an underwriter or a controlling person of the Company, such
holder shall have the right to (i) require the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing and not inconsistent with the
rules and regulations of the SEC, to the effect that the holding by such holder of such securities
is not to be construed as a recommendation by such holder of the investment quality of the
Company’s securities covered thereby and that such holding does not imply that such holder will
assist in meeting any future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, require the deletion of the reference to such holder; provided, that
with respect to this clause (ii), if requested by the Company, such holder shall furnish to the
Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably
satisfactory to the Company.
6. Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including without limitation all Registration Expenses, will be borne by the Company.
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(b) In connection with each Demand Registration and each Piggyback Registration, the Company
will reimburse the holders of Registrable Securities included in such registration for the
reasonable fees and disbursements of one (1) counsel chosen by the holders of a
majority of the Registrable Securities initially requesting such registration (which counsel shall
be retained to represent all such holders). Holders of Registrable Securities shall bear all
underwriting discounts and selling commissions applicable to the sale of the Registrable Securities
sold by them and the fees and disbursements of more than one counsel to such holders.
7. Indemnification.
(a) By the Company. The Company agrees to, and will cause each of its subsidiaries to
agree to, indemnify, to the fullest extent permitted by law, each holder of Registrable Securities,
its officers, directors, members, employees, agents, stockholders and general and limited partners
and each Person who controls such holder (within the meaning of the Securities Act and Exchange
Act) against any and all losses, claims, damages, liabilities and expenses (or actions or
proceedings, whether commenced or threatened, in respect thereof), joint or several, arising out of
or based upon any untrue or alleged untrue statement of material fact contained in any registration
statement, reports required and other documents filed under the Exchange Act and incorporated by
reference into any registration statement to the extent so incorporated, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, together with any documents incorporated
therein by reference, or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any violation or alleged
violation by the Company or any of its subsidiaries of any federal, state, foreign or common law
rule or regulation and relating to action or inaction in connection with any such registration,
disclosure document or other document and shall reimburse such holder, officer, director, member,
employee, agent, stockholder, partner or controlling Person for any legal or other expenses,
including any amounts paid in any settlement effected with the consent of the Company, which
consent will not be unreasonably withheld or delayed, incurred by such holder, officer, director,
member, employee, agent, stockholder, partner or controlling Person in connection with the
investigation or defense of such loss, claim, damage, liability or expense, except insofar as the
same are caused by or contained in any information furnished in writing to the Company by such
holder expressly for use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers, directors, agents and employees and each Person who
controls such underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable Securities.
(b) By the Holders. In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the Company in writing
such information and affidavits about such holder as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) and the other holders of Registrable Securities against
any losses, claims, damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make
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the statements therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by such holder which
authorizes its use in the applicable document; provided, that the obligation to indemnify will be
individual, not joint and several, for each holder and will be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Claim Procedures. Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice will not impair any Person’s right
to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party)
and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim, permit the indemnifying
party to assume the defense thereof, jointly with any other indemnifying party similarly notified
to the extent it may wish, with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be unreasonably
withheld or delayed) and the indemnifying party shall not, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof, a release from all liability in respect of such claim or litigation
provided by the claimant or plaintiff to such indemnified party. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be obligated to pay (i) the
fees and expenses of more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict
of interest may exist between such indemnified party and any other of such indemnified parties with
respect to such claim or (ii) any settlement made by any indemnified party without such
indemnifying party’s consent (but such consent will not be unreasonably withheld).
(d) Contribution. If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access
to information, and opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred
to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding. In no event shall any holder of
Registrable Securities be required to contribute an amount greater than the dollar amount of the
proceeds received by such holder of Registrable Securities with respect
11
to the sale of any Registrable Securities. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were determined by pro rata allocation
or by any other method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The contribution provided for in this Section 7(d) shall remain in full force
and effect regardless of any investigation made by or on behalf of any indemnified party.
(e) Survival. The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of the indemnified party
or any officer, agent or employee and each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls such indemnified
party (within the meaning of the Securities Act), and will survive the transfer of securities.
8. Participation in Underwritten Registrations. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s
securities on the basis provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements (including, without limitation, pursuant to the
terms of any over-allotment or “green shoe” option requested by the managing underwriter(s),
provided that no holder of Registrable Securities will be required to sell more than the number of
Registrable Securities that such holder has requested the Company to include in any registration),
(b) completes and executes all customary questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such underwriting
arrangements; provided, that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder, such holder’s
ownership and title to the Registrable Securities, such holder’s intended method of distribution,
and such other representations and warranties are customarily provided by selling shareholders in
underwritten offerings) or to undertake any indemnification or contribution obligations to the
Company or the underwriters with respect thereto, except as otherwise provided in Section 7,
and (c) complies with all applicable federal and state securities laws in connection with such
registration.
9. Rule 144 Reporting. With a view to making available to
the holders of
Registrable Securities the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without registration, the Company
agrees at its expense to use its best efforts to:
(a) make and keep current public information available, within the meaning of Rule 144, at all
times after it has become subject to the reporting requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other documents required of the
Company under the Securities Act and Exchange Act (after it has become subject to such reporting
requirements); and
12
(c) so long as any party hereto owns any Registrable Securities, furnish to such Person
forthwith upon request, a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the general public), the
Securities Act and the Exchange Act (at any time after it has become subject to such reporting
requirements); a copy of the most recent annual or quarterly report of the Company; and such other
reports and documents as such Person may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without registration.
10. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement will be in writing and will be deemed to
have been given when delivered if delivered personally, sent via a nationally recognized overnight
courier, or sent via facsimile to the recipient, or if sent by certified or registered mail, return
receipt requested, will be deemed to have been given two (2) business days thereafter. Such
notices, demands and other communications shall be sent to any holder of Registrable Securities at
such holder’s last address on the records of the Company, and to the Company at the address
indicated below:
To the Company:
Diamond Resorts Parent, LLC
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Cloobeck and Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxxxxx Xxxxxx Xxxxxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
To Xxxxx:
Xxxxx Strategic Partners LP
c/x Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx
and Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
c/x Xxxxx Fund Management LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx
and Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
13
with a copy, which shall not constitute notice, to:
Proskauer Rose
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
To Guggenheim:
DRP Holdco, LLC
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
with copies, which shall not constitute notice, to:
Guggenheim Partners
000 Xxxxxxxx Xxxxxxxxx — Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and
Guggenheim Investment Management, LLC
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
or such other address, telecopy number or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending party.
11. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of this Agreement will be
entitled to enforce such rights specifically to recover damages caused by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
14
(b) Entire Agreement; Amendments and Waivers. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which may have related to
the subject matter hereof in any way (including, but not limited to, the Original Agreement). The
provisions of this Agreement may be amended or waived only upon the prior written consent of (i)
the Company, (ii) the holders of a majority of the number of CDP Registrable Securities, and (iii)
the holders of a majority of the number of Investor Registrable Securities; and any amendment to
which such written consent is obtained will be binding upon the Company and all holders of
Registrable Securities.
(c) Successors and Assigns. All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed or not, including any corporation which is a
successor to the Company.
(d) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(e) Counterparts; Facsimile. This Agreement may be executed simultaneously in two or
more counterparts (each of which may be transmitted via facsimile), any one of which need not
contain the signatures of more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
(f) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(g) GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC
LAWS OF THE STATE OF NEVADA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION
OR RULE (WHETHER OF THE STATE OF NEVADA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEVADA.
(h) WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR THE VALIDITY,
PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
(i) Venue; Submission to Jurisdiction. ANY AND ALL SUITS, LEGAL ACTIONS
OR PROCEEDINGS ARISING OUT OF THIS AGREEMENT SHALL BE
15
BROUGHT ONLY IN A STATE OR FEDERAL COURT IN OR FOR XXXXX COUNTY, NEVADA AND EACH PARTY TO
THIS AGREEMENT HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THE
PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINGS. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH HE OR IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN SUCH COURT AND HEREBY FURTHER
WAIVES ANY CLAIM THAT ANY SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
(j) Mandatory Mediation. The parties hereto shall, and shall cause their
respective Affiliates to, resolve any dispute, controversy or claim arising out of or in connection
with this Agreement and any transactions contemplated hereby (a “Dispute”) in accordance with the
following procedures: within thirty (30) business days after any party has served written notice on
the other party, such Dispute shall be submitted to the Las Vegas, Nevada office of JAMS for
mediation. The mediation shall take place in Nevada. Notwithstanding anything contained in this
Agreement to the contrary, in no event will any party be obligated to participate in any mediation
for more than 30 business days.
(k) No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
(l) Transfer. Prior to transferring any Registrable Securities (other than a transfer
pursuant to which such securities cease to be Registrable Securities) to any Person, the Person
transferring such Registrable Securities will cause the prospective transferee to execute and
deliver to the Company, a joinder to this Agreement substantially in the form of Exhibit A hereto
pursuant to which the prospective transferee agrees to be bound by this Agreement to the same
extent as the Person transferring such Registrable Securities with respect to the Registrable
Securities so transferred.
(m) Issuance by the Company of Additional Common Units. The parties hereto hereby
acknowledge that, after the date hereof, the Company may issue additional Common Units to certain
Persons (the “New Members”). In connection with any such issuance, the parties hereto agree that
the Company may grant (but shall be under no obligation to grant) such New Members rights
substantially similar to the rights granted to the holders of CDP Registrable Securities hereunder
(provided that, if such grant is made, each such New Member is also subject to the obligations of
holders of CDP Registrable Securities hereunder) by causing each such New Member to execute a
joinder to this Agreement substantially in the form of Exhibit A hereto.
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Registration Rights Agreement as of the date first above
written.
|
COMPANY: DIAMOND RESORTS PARENT, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | ||||
| Title: | ||||
| XXXXX: XXXXX STRATEGIC PARTNERS LP |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Attorney-in-Fact | |||
| CDP: CLOOBECK DIAMOND PARENT, LLC |
||||
| By: | /s/ Xxxxxxx X. Cloobeck | |||
| Name: | Xxxxxxx X. Cloobeck | |||
| Title: | Sole Manager | |||
GUGGENHEIM: DRP HOLDCO, LLC |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorized Person | |||
[Signature Page to this Amended and Restated Registration Rights Agreement]
EXHIBIT A
FORM OF JOINDER TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS JOINDER to the Amended and Restated Registration Rights Agreement, dated as
of June _, 2010, by and among Diamond Resorts Parent, LLC, a Nevada limited liability company
(the “Company”), and certain securityholders of the Company (the “Agreement”), is made
and entered into as of ______ by and between
the Company and _________ (“Holder”). Capitalized
terms used herein but not otherwise defined shall have the meanings set forth in the
Agreement.
WHEREAS,
Holder has acquired ____ [Common Units] from _______.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Joinder hereby agree as follows:
1. Agreement to be Bound. Holder hereby (i) acknowledges that it has received and
reviewed a complete copy of the Agreement and (ii) agrees that upon execution of this Joinder,
it shall become a party to the Agreement and shall be fully bound by, and subject to, all of
the covenants, terms and conditions of the Agreement as though an original party thereto. In
addition, Holder hereby agrees that all Common Units held by Holder shall be deemed [CDP
Registrable Securities/Xxxxx Registrable Securities/Guggenheim Registrable Securities]
and Registrable Securities for all purposes of the Agreement.
2. Successors and Assigns. Except as otherwise provided herein, this Joinder
shall bind and inure to the benefit of and be enforceable by the Company and its successors,
heirs and assigns and Holder and any subsequent holders of Registrable Securities and the
respective successors, heirs and assigns of each of them, so long as they hold any Registrable
Securities.
3. Notices. For purposes of Section 10 of the Agreement, all notices, demands or
other communications to the Holder shall be directed to:
[Name]
[Address]
[Address]
4. Counterparts. This Joinder may be executed in separate counterparts
each of which shall be an original and all of which taken together shall constitute one and
the same agreement.
5. Governing Law. This Joinder shall be governed by and construed in accordance
with the laws of the state of Delaware, without giving effect to any rules, principles or
provisions of choice of law or conflict of laws.
6. Descriptive Headings. The descriptive headings of this Joinder are inserted
for convenience only and do not constitute a part of this Joinder.
IN WITNESS WHEREOF, the parties hereto have executed this Joinder to the Amended and
Restated Registration Rights Agreement as of the date set forth in the introductory paragraph
hereof.
| DIAMOND RESORTS PARENT, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [HOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
This Amendment (this “Amendment”) is made and entered into as of February 18, 2011, by
and among Diamond Resorts Parent, LLC, a Nevada limited liability company (the “Company”),
DRP Holdco, LLC, a Delaware limited liability company (“Guggenheim”), Cloobeck Diamond
Parent, LLC, a Nevada limited liability company (“CDP”) and and each of the Persons
identified as a New Purchaser on the signature pages hereto (each, a “New Purchaser,” and
collectively, the “New Purchasers”). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to them in the Original Agreement.
WHEREAS, Soros, Guggenheim, CDP and the Company are parties to that certain Amended and
Restated Registration Rights Agreement, dated as of June 17, 2010 (the “Original Agreement”);
WHEREAS,
Section 11(b) of the Original Agreement provides that the Original Agreement may be
amended upon the prior written consent of (i) the Company, (ii) the holders of a majority of the
number of CDP Registrable Securities, and (iii) the holders of a majority of the number of Investor
Registrable Securities; and
WHEREAS, the undersigned, being (i) the Company, (ii) the holders of at least a majority of
the CDP Registrable Securities, (iii) the holders of at least a majority of the Investor
Registrable Securities, and (iv) the New Purchasers, desire to amend the Original Agreement to,
among other things, provide registration rights to the New Purchasers, on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Amendment and other
good and valuable consideration, the receipt and sufficiency of which being hereby acknowledged,
the parties intending to be legally bound, hereby agree as follows:
| 1. | The following definition shall be added to Section 1 of the Original Agreement: |
““New Purchaser Registrable Securities” means (i) all Common Units acquired
by, or issued or issuable to the New Purchasers on or after February 18, 2011, and (ii)
all equity securities issued or issuable directly or indirectly with respect to any
Common Units described in clause (i) above by way of a unit or stock dividend or unit or
stock split or in connection with a combination of units or shares, recapitalization,
merger, consolidation or other reorganization. As to any particular New Purchaser
Registrable Securities, such securities shall cease to be New Purchaser Registrable
Securities when they have been registered under the Securities Act, sold to the public
in compliance with Rule 144 or sold in a private transaction in which the transferor’s
rights under this Agreement are not assigned.”
| 2. | The following definitions set forth in Section 1 of the Original Agreement are hereby amended and restated as follows: |
““Investors” means Xxxxx, Guggenheim and the New Purchasers. “Investor” means
any of Xxxxx, Guggenheim or a New Purchaser.”
““Investor Registrable Securities” means, collectively, the Xxxxx Registrable
Securities, the Guggenheim Registrable Securities and the New Purchaser Registrable
Securities.”
| 3. | By execution of this Amendment, the New Purchasers hereby become parties to the Original Agreement, as amended hereby. | |
| 4. | Except for the provisions of the Original Agreement amended hereby, all other provisions of the Original Agreement shall remain in full force and effect. | |
| 5. | The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party hereto under the Original Agreement nor constitute a waiver of any provision contained therein, except as specifically set forth herein. | |
| 6. | This Amendment shall be construed in accordance with and governed by the laws of the State of Nevada applicable to contracts made and wholly to be performed in that State. | |
| 7. | All demands, notices, requests, consents and other communications required or permitted under this Amendment shall be performed in the manner set forth in the Original Agreement; provided, however, that the address for each New Purchaser is set forth opposite such New Purchaser’s name on the signature pages hereto. | |
| 8. | This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one instrument. | |
| 9. | Upon execution by the undersigned, this Amendment shall be effective and binding upon the Company and all holders of Registrable Securities. |
* * *
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment to Amended and Restated Registration Rights Agreement as of the date
first above written.
| COMPANY: DIAMOND RESORTS, PARENT, LLC |
||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| CDP: CLOOBECK DIAMOND PARENT, LLC |
||||
| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
| GUGGENHEIM: DRP HOLDCO, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Authorized Person | |||
| NEW PURCHASERS: | ||||||
| SILVER ROCK FINANCIAL LLC | Notice Address: | |||||
By:
|
/s/ Xxxxx Xxxxxxxx
|
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxx, XX 00000 |
||||
Its:
|
Manager | |||||
| IN–FP1 LLC | Notice Address: | |||||
By:
|
/s/ Xxxxx Xxxxxxxx
|
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxx, XX 00000 |
||||
Its:
|
Manager | |||||
| BDIF LLC | Notice Address: | |||||
By:
|
/s/ Xxxxx Xxxxxxxx
|
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxx, XX 00000 |
||||
Its:
|
Manager | |||||
| CM–NP LLC | Notice Address: | |||||
By:
|
/s/ Xxxxx Xxxxxxxx
|
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxx, XX 00000 |
||||
Its:
|
Manager |
