exv10w4






Exhibit 10.4




FOURTH AMENDED AND RESTATED

SECURITYHOLDERS AGREEMENT




          This FOURTH AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT is dated as of July 21, 2011 by and
among Diamond Resorts Parent, LLC, a Nevada limited liability company (the “Company”),
Cloobeck Diamond Parent, LLC, a Nevada limited liability company, (“CDP”), 1818 Partners,
LLC, a Nevada limited liability company (“1818 Partners”), DRP Holdco, LLC, a Delaware
limited liability company (“Guggenheim”), the Silver Rock Entities (as defined below) and
The Hartford Growth Opportunities Fund, Hartford Growth Opportunities HLS Fund, Quissett Investors
(Bermuda) L.P., Quissett Partners, L.P., The Hartford Capital Appreciation Fund, Bay Pond Partners,
L.P. and Bay Pond Investors (Bermuda) L.P. (each, a “Wellington Purchaser” and
collectively, the “Wellington Purchasers”).




          WHEREAS, the Company, CDP, Guggenheim, the Silver Rock Entities and Soros Strategic Partners
LP entered into that certain Third Amended and Restated Securityholders Agreement, dated as of
February 18, 2011 (the “Original Agreement”);




          WHEREAS, Section 11 of the Original Agreement provides that the Original Agreement may be
amended upon the prior written consent of (i) the Company, (ii) the Majority Common Holders, (iii)
the Majority Guggenheim Holders, and (iv) the Majority Preferred Holders (as such term is defined
in the Original Agreement); and




          WHEREAS, the undersigned, being (i) the Company, (ii) the Majority Common Holders under the
Original Agreement, (iii) the Majority Guggenheim Holders, (iv) the Majority Preferred Holders and
(v) the Wellington Purchasers, desire to amend and restate the Original Agreement 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
hereby agree as follows:




          1. Definitions. As used herein, the following terms shall have the following
meanings:




          “Acceptance Period” shall have the meaning set forth in Section 7(a).




          “Affiliate” means, when used with reference to a specified Person, any Person that
directly or indirectly controls or is controlled by or is under common control with the specified
Person. As used in this definition, “control” (including, with its correlative meanings,
“controlled by” and “under common control with”) shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or otherwise). With respect to
any Person who is an individual, “Affiliates” shall also include, without limitation, any
member of such individual’s Family Group. For purposes hereof, no (i) homeowner’s association at a
property at which the Company or its Subsidiaries either have sold any timeshare interests or
intervals or acts as a management company or (ii) collection holding real estate interests
underlying vacation points shall be deemed to be an Affiliate of the Company or any Subsidiary.




 









 





          “Agreement” means this Fourth Amended and Restated Securityholders Agreement,
including the joinder attached hereto as Exhibit A, as may be amended, modified or waived
from time to time in accordance with its terms.




          “Adjusted EBITDA” shall have the meaning ascribed to such term in the Senior Note
Indenture.




          “Approved Company Sale” shall have the meaning set forth in Section 3(a).




          “Board” means the Company’s board of managers.




          “CDP” has the meaning set forth in the Preamble to this Agreement.




          “CDP Common Unit Threshold” means the ownership by the CDP Investors of at least 10%
of the Common Units issued to the CDP Investors as of the date hereof.




          “CDP Investors” means CDP, 1818 Partners and any of their respective Permitted
Transferees.




          “CDP Redemption Agreement” means that certain Redemption Agreement, dated as of the
date hereof, by and among the Company and CDP.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Common Percentage Interests” shall have the meaning ascribed to such term in the LLC
Agreement.




          “Common Units” shall have the meaning ascribed to such term in the LLC Agreement.




          “Company” has the meaning set forth in the Preamble to this Agreement.




          “Company’s Notice of Intention to Sell” shall have the meaning set forth in
Section 7(a).




          “Dispute” shall have the meaning set forth in Section 22.




          “DRC” means Diamond Resorts Corporation, a Maryland corporation.




          “Election Period” shall have the meaning set forth in Section 2(a)(i).




          “Equity Equivalents” shall have the meaning set forth in Section 7(a) hereof.




          “Equityholders” means collectively the CDP Investors, the Guggenheim Investors, the
Silver Rock Investors, the Wellington Investors and the Other Investors.




          “Equityholder Units” means (i) all Units held, directly or indirectly, by the
Equityholders, and (ii) all equity securities issued directly or indirectly with respect to any
Units referred to in clause (i) above by way of a unit or stock dividend or other distribution, or
unit or






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stock split, or in connection with a combination of units or shares, recapitalization, merger,
consolidation or other reorganization, including pursuant to a transaction of the type described in
Article 13 of the LLC Agreement.




          “Event of Default” has the meaning given such term in the Senior Note Indenture.




          “Excluded Units” means any Units or other equity interests of the Company, whether now
authorized or not, and rights, options or warrants to purchase equity interests, and securities of
any type whatsoever that are, or may become, convertible into or exchangeable for equity interest
(such rights, options, warrants and convertible or exchangeable securities are referred to herein
as “Convertible Securities”), issued: (i) to employees of the Company or the Management
Company (excluding Stephen J. Cloobeck) pursuant to any unit option plan or other equity incentive
plan adopted by the Board, in an aggregate amount (together with all previous issuances to
employees, other than Stephen J. Cloobeck) not to exceed 10% of the Common Units, determined on a
fully-diluted basis, (ii) upon exercise, conversion or exchange of any Convertible Securities
pursuant to their terms, (iii) in connection with any acquisition by the Company of any shares of
capital stock or assets of any Person, or any merger or consolidation involving the Company or any
Subsidiary of the Company, (iv) pursuant to a Public Offering, (v) in connection with a stock split
or other subdivision of, or as a dividend or other distribution with respect to, the Company’s
Units or other equity interests, (vi) in connection with strategic alliances, joint ventures, third
party credit arrangements or other partnering arrangements on behalf of the Company authorized by
the Board, including the members of the Board appointed by the Guggenheim Member (as defined in the
LLC Agreement), or (vii) pursuant to (A) that certain Securities Purchase Agreement, dated as of
the date hereof, by and among the Company and the Wellington Purchasers, or (B) the Redemption
Agreement.




          “Executive Officer” means the Chief Executive Officer, Chief Financial Officer, Chief
Information Officer, Chief Marketing Officer or other chief-level officer of the Company.




          “Fair Market Value” means the net equity value of the Company, as determined by mutual
agreement of the Company and the Investor exercising its Put, or failing such mutual agreement, by
an independent investment banking firm mutually agreed to by the Company and such Investor at the
Company’s expense; provided, that the determination of the fair market value shall assume
that the Company and its Subsidiaries are sold as a going concern and then liquidated and shall not
provide for any discounts based on illiquidity or restrictions on transfer of the applicable Common
Units or the fact that the Common Units being valued represent a minority interest in the Company.




          “Family Group” means, with respect to any Person who is an individual, (i) such
Person’s spouse, former spouse, ancestors and descendants (whether natural or adopted), parents and
their descendants and any spouse of the foregoing persons (collectively, “relatives”), (ii)
the trustee, fiduciary or personal representative of such Person and any trust solely for the
benefit of such Person and/or such Person’s relatives or (iii) any limited partnership, limited
liability company or corporation the governing instruments of which provide that such Person shall
have the exclusive, nontransferable power to direct the management and policies of such entity and
of






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which the sole owners of partnership interests, membership interests or any other equity
interests are, and will remain, limited to such Person and such Person’s relatives.




          “Guggenheim” has the meaning set forth in the Preamble to this Agreement.




          “Guggenheim Common Unit Threshold” means the ownership by the Guggenheim Investors of
at least: (i) 5% of the total Common Percentage Interests (determined on a fully-diluted basis) or
(ii) 25% of the Common Units issued to the Guggenheim Investors as of the date hereof.




          “Guggenheim Entity” means any of (i) Guggenheim Capital, LLC and its Affiliates, (ii)
any Guggenheim Investor, (iii) any Guggenheim Related Entity and (iv) any Affiliates of any
Guggenheim Investor.




          “Guggenheim Investors” means Guggenheim and any of its Permitted Transferees.




          “Guggenheim Related Entity” means an entity with a management or investment management
relationship with Guggenheim Capital, LLC or its Affiliates.




          “Guggenheim Units” means all Equityholder Units owned by the Guggenheim Investors.




          “Guggenheim Warrant” means that certain Warrant to purchase Common Units of the
Company issued to Guggenheim Corporate Funding, LLC on June 30, 2011.




          “Indebtedness” shall have the meaning ascribed to such term in the Senior Note
Indenture.




          “Investor” means any Guggenheim Investor, any Silver Rock Investor or any Wellington
Investor.




          “Investor Group” means, separately, each of (i) the CDP Investors, collectively, (ii)
the Guggenheim Investors, collectively, and (iii) the Wellington Investors, collectively.




          “Investor Units” means the Guggenheim Units, the Silver Rock Units and the Wellington
Units.




          “Issue Date” means, with respect to any Unit, the original issuance date of such Unit.




          “LLC Agreement” means the Fourth Amended and Restated Operating Agreement of the
Company, dated as of the date hereof, as amended and/or restated from time to time.




          “Majority CDP Holders” means, at any time, the CDP Investors holding a majority of the
Common Units held by the CDP Investors.







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          “Majority Common Holders” means, at any time, the holders of a majority of the Common
Units held by the Equityholders.




          “Majority Investor Holders” means, at any time, the holders of a majority of the
Common Units held by the Guggenheim Investors, the Silver Rock Investors and the Wellington
Investors collectively.




          “Majority Guggenheim Holders” means, at any time, the Guggenheim Investors holding a
majority of the Guggenheim Units.




          “Majority Wellington Holders” means, at any time, the Wellington Investors holding a
majority of the Wellington Units.




          “Management Company” means Hospitality Management and Consulting Service, L.L.C. or
its successor pursuant to that certain Homeowner Association Oversight, Consulting and Executive
Management Services Agreement, dated as of December 31, 2010, by and between DRC and Hospitality
Management and Consulting Service, L.L.C.




          “Material Subsidiary” means any Subsidiary of the Company that during the previous
fiscal year generated or contributed more than 20% of Adjusted EBITDA for such fiscal year.




          “Minimum Threshold” means, with respect to any Investor Group, such Investor Group
holds at least (i) 10% of the total Common Percentage Interests (determined on a fully-diluted
basis) or (ii) 50% of the aggregate Common Units owned by such Investor Group as of the date
hereof.




          “Offer Notice” shall have the meaning set forth in Section 2(a)(i).




          “Other Investor” means any Person (other than the CDP Investors and the Investors)
signatory to a joinder in the form attached hereto as Exhibit A and indicated as an “other
investor” in such joinder and any of their respective Permitted Transferees.




          “Participating Equityholder” shall have the meaning set forth in Section
2(b)(i).




          “Permitted Transferee” has the meaning set forth in Section 2(c)(ii) hereof.




          “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 governmental entity or any department, agency or political subdivision thereof or
any other entity or organization.




          “Polo Holdings” means Diamond Resorts Holdings, LLC.




          “Principal Line of Business” means all business activities related to Timeshare
Opportunities, including, but not limited to, financing, development, sales, marketing, management
and maintenance of interval or fractional timeshare properties and the real estate incident
thereto, the acquisition and re-sale of such properties and the booking and reservation






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activities related thereto; provided that, for the avoidance of doubt, “Principal Line of
Business” shall not include business activities related to hotels, condominiums, condo-hotels,
apartment rental complexes, commercial retail centers, office complexes, casinos, or other types of
real estate / hospitality developments or other activities not involving Timeshare Opportunities.
“Timeshare Opportunity” means any real estate development project or arrangement which, at
the time of entering into such opportunity, is required to be licensed under or is regulated under
any timeshare statute or regulation in any jurisdiction (regardless of whether such jurisdiction is
the jurisdiction in which the opportunity is located, sold or marketed), including, without
limitation, interval and fractional timeshares, whether conveyed via license, right to use, fee
simple title or points, and any timeshare club or exchange arrangement.




          “Public Offering” means an underwritten public offering and sale of Units 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.




          “Put” has the meaning set forth in Section 2(a)(ii) hereof.




          “Qualified Public Offering” means any Public Offering providing aggregate gross
proceeds (before deducting underwriting discounts and expenses) to the Company and/or its
Equityholders of at least $150 million in such Public Offering and at an offering price which
represents a common equity valuation of Common Units (or Successor Stock, as defined in the LLC
Agreement) outstanding immediately prior to the issuance of Successor Stock in connection with such
offering of at least $750 million.




          “Redemption Agreement” means that certain Redemption Agreement, dated as of the date
hereof, by and among the Company, Guggenheim and the Silver Rock Entities.




          “Recipient Equityholder” shall have the meaning set forth in Section 2(b)(i).




          “Registration Rights Agreement” means that certain Second Amended and Restated
Registration Rights Agreement, dated as of the date hereof, by and among the Company and certain
members of the Company.




          “Sale of the Company” means (i) a transaction or series of transactions (including by
way of merger, consolidation, or sale of equity) the result of which is that the holders of the
Common Units immediately prior to such transaction(s) (on a fully diluted as if converted basis)
and their Affiliates are after giving effect to such transaction(s) no longer, in the aggregate,
the “beneficial owners” (as such term is defined in Rule 13d-3 and Rule 13d-5 promulgated under the
Securities Act), directly or indirectly through one or more intermediaries, of more than 50% of the
Common Units (on a fully diluted basis as if converted basis), or (ii) the sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of all or
substantially all of the Company’s assets determined on a consolidated basis.




          “Sale Notice” shall have the meaning set forth in Section 2(a)(i).




          “Securities Act” means the Securities Act of 1933, as amended.







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          “Senior Note Indenture” means the Indenture dated as of August 13, 2010 by and among
DRC, the Company, Polo Holdings, the Subsidiary Guarantors named therein and Wells Fargo Bank,
National Association, as trustee, as in effect as of the date hereof.




          “Senior Secured Notes” means DRC’s 12.0% Senior Secured Notes due 2018, issued on or
prior to August 13, 2010 pursuant to the Senior Note Indenture and any Exchange Notes (as defined
in the Senior Note Indenture).




          “Silver Rock Entities” means, collectively, Silver Rock Financial LLC, IN — FP1 LLC,
BDIF LLC and CM — NP LLC.




          “Silver Rock Investors” means the Silver Rock Entities and any of their respective
Permitted Transferees.




          “Silver Rock Units” means all Equityholder Units owned by the Silver Rock Investors.




          “Subsidiary” means, with respect to any Person, any corporation, partnership,
association or other business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a partnership, association or other business entity, a majority of
the partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a partnership, association or other business entity if such Person or Persons shall be
allocated a majority of partnership, association or other business entity gains or losses or shall
be or control the managing director or a general partner of such partnership, association or other
business entity.




          “Tagging Investor” shall have the meaning set forth in Section 2(b)(i).




          “Tax Distribution” shall have the meaning ascribed to such term in the LLC Agreement.




          “Transfer” means any direct or indirect sale, transfer, assignment, pledge or other
disposition or encumbrance, including, without limitation, a transfer of stock in a corporate
member.




          “Transferring Equityholder” shall have the meaning set forth in Section
2(b)(i).




          “Transferring Investor” shall have the meaning set forth in Section 2(a)(i).




          “Transfer Notice” shall have the meaning set forth in Section 2(b)(i).




          “Units” means collectively the Common Units and any other equity securities of the
Company (or its successors) which are not limited to a fixed sum or percentage of par value






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or stated value in respect of the rights of the holders thereof to participate in dividends or
other distributions or in the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of the issuer of such securities, including any such type of equity
securities of any successor entity of the Company issued pursuant to a transaction of the type
described in Article 13 of the LLC Agreement.




          “Unrestricted Subsidiary” shall have the meaning ascribed to such term in the Senior
Note Indenture.




          “Wellington Common Unit Threshold” means the ownership by the Wellington Investors of
at least: (i) 5% of the total Common Percentage Interests (determined on a fully-diluted basis) or
(ii) 25% of the Common Units issued to the Wellington Investors as of the date hereof.




          “Wellington Entity” means any of (i) Wellington Management Company, LLP and its
Affiliates, (ii) any Wellington Investor, (iii) any Wellington Related Entities and (iv) any
Affiliates of any Wellington Investor.




          “Wellington Investors” means the Wellington Purchasers and any of their respective
Permitted Transferees.




          “Wellington Purchaser” and “Wellington Purchasers” shall have the meaning
ascribed to those terms in the preamble.




          “Wellington Related Entity” means an entity with a management or investment management
relationship with Wellington Management Company, LLP or its Affiliates.




          “Wellington Units” means all Equityholder Units owned by the Wellington Investors.




          2. Restrictions on Transfer of Equityholder Units.




          (a) General Restrictions.





     (i) The Common Units held by any Investor may be Transferred, in whole or in part, only
(A) with the consent of the majority of the Board, to any Person, which consent shall not be
unreasonably withheld, delayed or conditioned; provided that, unless waived in
writing by the Board, such transferee shall have complied with the requirements of
Section 2(c)(ii), (B) pursuant to the exercise of its participation rights under
Section 2(b), to any Person; provided, that unless waived in writing by the Board,
such Person shall have complied with the requirements of Section 2(c)(ii), (C) to
the Company pursuant to the terms of this Section 2(a)(i), (D) pursuant to an
Approved Company Sale (as herein defined), (E) to any Person if either (i) for any Investor
that is an investment company registered under the Investment Company Act of 1940, as
amended (the “Investment Company Act”), if its continued holding of the Common Units
would cause it to be in non-compliance with the fundamental investment restrictions set
forth in the registration statement of such holder pursuant to Section 13(a)(2) or 13(a)(3)
of the Investment Company Act due to actions taken by the holders of the outstanding



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voting securities of such Investor after the date hereof or (ii) there is a reasonable
likelihood that the continued holding of the Common Units would result in a violation of, or
a material adverse effect under, applicable law or regulation, or (F) to any Person for any
Investor that is a “regulated investment company” (as defined under Section 851(a) of the
Code), if the Company realizes any items of gross income that do not constitute qualifying
income under Section 851(b)(2) of the Code; provided that if any Investor intends to
Transfer any Common Units pursuant to Section 2(a)(i)(A), Section 2(a)(i)(E)
or Section 2(a)(i)(F), such Investor (the “Transferring Investor”) shall
deliver a written notice of such intention (a “Sale Notice”) to the Company
including a description of the proposed number of Common Units intended to be transferred.
The Company may submit an offer to purchase all (but not less than all) of the Common Units
specified in the Sale Notice. Any such offer shall be made by delivering written notice
thereof (an “Offer Notice”) to the Transferring Investor as soon as practical but in
any event within ten (10) business days after the delivery of the Sale Notice. Any such
Offer Notice shall include the proposed cash purchase price and other material terms of the
proposed purchase. A proposed Offer Notice shall be valid only if such notice contains firm
and enforceable commitments from reputable sources for the financing, provided, that if the
Transferring Investors validly accepts any proposed Offer Notice, then such proposed Offer
Notice shall be deemed to be a valid Offer Notice. The Offer Notice will constitute an
irrevocable offer by the Company to acquire the Common Units specified in the Offer Notice
from the Transferring Investor at the price and on the terms specified in the Offer Notice.
If the Company elects to offer to purchase Common Units from the Transferring Investor and
the Transferring Investor accepts such offer, the transfer of such shares shall be
consummated as soon as practical after the delivery of the Offer Notice to the Transferring
Investor, but in any event within 30 days after delivery of the Sale Notice (the
“Election Period”). If the Transferring Investor has rejected any such offer by the
Company, then the Transferring Investor may, within six (6) months after the expiration of
the Election Period, Transfer such Common Units to one or more third parties at a cash
purchase price greater than the price specified in the Offer Notice and on other terms no
more favorable to the transferees thereof than the terms set forth in the Offer Notice. If
the Company has not elected to offer to purchase the Common Units being offered, then the
Transferring Investor may, within six (6) months after the expiration of the Election
Period, Transfer such Common Units to any Person at any price and on any terms. Any Common
Units not Transferred within such six (6) month period shall be reoffered to the Company
under this Section 2(a)(i) prior to any subsequent Transfer; provided,
further, that the restrictions and rights specified in this Section 2(a)(i)
shall not be applicable if (x) Stephen J. Cloobeck is no longer actively involved in the
day-to-day management of the Company or (y) an Event of Default shall have occurred and be
continuing with respect to the Senior Secured Notes and the holders thereof shall have
accelerated the Senior Secured Notes or shall have otherwise exercised any of their rights
or remedies thereunder.




     (ii) Notwithstanding the rights and restrictions set forth in Section 2(a)(i)
at any time and from time to time after August 13, 2019, any Investor may require the
Company to repurchase all or any portion of its Common Units (the “Put”) for cash
consideration, payable within sixty (60) business days after the Company’s receipt of notice
of exercise of the Put, equal to the product of (A) the percentage of the common



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equity of the Company held by such holder and (B) the Fair Market Value of the Company.




     (iii) Any CDP Investor may Transfer Equityholder Units (A) to any Person (provided,
that, unless waived in writing by the Majority Investor Holders, such Person shall have
complied with the requirements of Section 2(b) and 2(c)(ii) as well as
Article 11 of the Operating Agreement) or (B) pursuant to an Approved Company Sale (as
herein defined); provided that if any CDP Investor intends to Transfer any Common
Units pursuant to Section 2(a)(iii)(A), such CDP Investor (the “CDP Transferring
Investor”) shall deliver a Sale Notice to the Company including a description of the
proposed number of Common Units intended to be transferred. The Company may submit an offer
to purchase all (but not less than all) of the Common Units specified in the Sale Notice.
Any such offer shall be made by delivering an Offer Notice to the CDP Transferring Investor
as soon as practical but in any event within ten (10) business days after the delivery of
the Sale Notice. Any such Offer Notice shall include the proposed cash purchase price and
other material terms of the proposed purchase. A proposed Offer Notice shall be valid only
if such notice contains firm and enforceable commitments from reputable sources for the
financing, provided, that if the CDP Transferring Investors validly accepts any proposed
Offer Notice, then such proposed Offer Notice shall be deemed to be a valid Offer Notice.
The Offer Notice will constitute an irrevocable offer by the Company to acquire the Common
Units specified in the Offer Notice from the CDP Transferring Investor at the price and on
the terms specified in the Offer Notice. If the Company elects to offer to purchase Common
Units from the CDP Transferring Investor and the CDP Transferring Investor accepts such
offer, the transfer of such shares shall be consummated as soon as practical after the
delivery of the Offer Notice to the CDP Transferring Investor, but in any event within the
Election Period. If the CDP Transferring Investor has rejected any such offer by the
Company, then the CDP Transferring Investor may, within six (6) months after the expiration
of the Election Period, Transfer such Common Units to one or more third parties at a cash
purchase price greater than the price specified in the Offer Notice and on other terms no
more favorable to the transferees thereof than the terms set forth in the Offer Notice. If
the Company has not elected to offer to purchase the Common Units being offered, then the
CDP Transferring Investor may, within six (6) months after the expiration of the Election
Period, Transfer such Common Units to any Person at any price and on any terms. Any Common
Units not Transferred within such six (6) month period shall be reoffered to the Company
under this Section 2(a)(iii) prior to any subsequent Transfer. Notwithstanding the
foregoing, any member of CDP may Transfer its membership interests in CDP at any time so
long as Stephen J. Cloobeck retains directly or through one or more trusts or other entities
established for tax or estate planning purposes, a majority of the voting and economic
interests therein; it being understood and agreed that any Transfer (or series of related
Transfers) of membership interests in CDP by Stephen J. Cloobeck or such trusts or other
entities after which they will collectively hold less than a majority of the voting or
economic interests in CDP shall constitute a “Transfer” of Equityholder Units by a CDP
Investor under this Agreement. Any Transfer pursuant to Section 2(a)(iii)(A) (other
than to the Company pursuant to Section 2(a)(iii)) shall be made in accordance with
Section 2(b).



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     (iv) Any Other Investor may Transfer Equityholder Units only (A) with the prior consent
or approval of the Majority Common Holders and the Company, to any Person, provided, that,
unless waived in writing by the Majority Common Holders and the Company, such Person shall
have complied with the requirements of Section 2(c)(ii) or (B) pursuant to an
Approved Company Sale (as herein defined); provided that if any Other Investor
intends to Transfer any Common Units pursuant to Section 2(a)(iv)(A), such Other
Investor (the “Other Transferring Investor”) shall deliver a Sale Notice to the
Company including a description of the proposed number of Common Units intended to be
transferred. The Company may submit an offer to purchase all (but not less than all) of the
Common Units specified in the Sale Notice. Any such offer shall be made by delivering an
Offer Notice to the Other Transferring Investor as soon as practical but in any event within
ten (10) business days after the delivery of the Sale Notice. Any such Offer Notice shall
include the proposed cash purchase price and other material terms of the proposed purchase.
A proposed Offer Notice shall be valid only if such notice contains firm and enforceable
commitments from reputable sources for the financing, provided, that if the Other
Transferring Investors validly accepts any proposed Offer Notice, then such proposed Offer
Notice shall be deemed to be a valid Offer Notice. The Offer Notice will constitute an
irrevocable offer by the Company to acquire the Common Units specified in the Offer Notice
from the Other Transferring Investor at the price and on the terms specified in the Offer
Notice. If the Company elects to offer to purchase Common Units from the Other Transferring
Investor and the Other Transferring Investor accepts such offer, the transfer of such shares
shall be consummated as soon as practical after the delivery of the Offer Notice to the
Other Transferring Investor, but in any event within the Election Period. If the Other
Transferring Investor has rejected any such offer by the Company, then the Other
Transferring Investor may, within six (6) months after the expiration of the Election
Period, Transfer such Common Units to one or more third parties at a cash purchase price
greater than the price specified in the Offer Notice and on other terms no more favorable to
the transferees thereof than the terms set forth in the Offer Notice. If the Company has
not elected to offer to purchase the Common Units being offered, then the Other Transferring
Investor may, within six (6) months after the expiration of the Election Period, Transfer
such Common Units to any Person at any price and on any terms. Any Common Units not
Transferred within such six (6) month period shall be reoffered to the Company under this
Section 2(a)(iv) prior to any subsequent Transfer.



          (b) Tag-Along Rights.





     (i) For so long as the CDP Investors hold at least 40% of the aggregate outstanding
Common Units, subject to Section 2(c)(i), at least 15 business days prior to the
Transfer by any CDP Investor (the “Transferring Equityholder”) of any class or
series of any type of Equityholder Units to any Person(s) (other than pursuant to (x) a
Public Offering (y) an Approved Company Sale or (z) a sale to the Company pursuant to an
Offer Notice under Section 2(a)(iii)), the applicable Transferring Equityholder
shall deliver a written notice (the “Transfer Notice”) to each of the Investors (the
“Recipient Equityholders”) (with a copy of such notice to the Company), specifying
in reasonable detail the identity of the prospective transferee(s), the type, class or
series, and the number of the Equityholder Units to be Transferred, and the other material
terms and



11









 







conditions of such contemplated Transfer, including the cash (or cash equivalent)
purchase price therefor. Any Recipient Equityholder may elect to participate in such
contemplated Transfer by delivering written notice to the Transferring Equityholder within
15 business days after delivery of the applicable Transfer Notice. If any Recipient
Equityholder elects to participate in such Transfer, each Recipient Equityholder who elects
to participate (the “Tagging Investors”, and collectively with the Transferring
Equityholder, the “Participating Equityholders”) shall be entitled to sell in such
contemplated Transfer, at the same price and on the same terms, up to a number of each class
or series of each type of Equityholder Units to be sold (or deemed to be sold as a result of
an indirect sale, transfer, assignment, pledge or other disposition or encumbrance) in such
contemplated Transfer equal to the product of (x) the quotient determined by dividing the
percentage of such class or series of such type of Equityholder Units owned by such Tagging
Investor by the aggregate percentage of such class or series of such type of Equityholder
Units owned collectively by all of the Participating Equityholders and (y) the aggregate
number of such class or series of such type of Equityholder Units to be sold (or deemed to
be sold as aforesaid) in such contemplated Transfer. Each Tagging Investor shall pay its
pro rata share (based on the amount of consideration received) of the reasonable
out-of-pocket expenses incurred by the Participating Equityholders in connection with such
Transfer and shall take all reasonably necessary and desirable actions as reasonably
directed by the applicable Transferring Equityholder in connection with the consummation of
such Transfer.




     (ii) Notwithstanding the foregoing, in connection with any Transfer under Section
2(b)(i), (i) no Tagging Investor will be required to grant any indemnification rights
except indemnification rights which constitute identical indemnification rights for all
Participating Equityholders (pro rata based upon the consideration received and not joint
and several, other than any such obligations that relate solely to a particular
Participating Equityholder, such as indemnification with respect to representations and
warranties or covenants made by such Participating Equityholder, in respect of which only
such Participating Equityholder shall be liable), (ii) no Tagging Investor shall be required
to make any representation or warranty that is not made by all other Participating
Equityholders, (iii) any representations and warranties to be made by a Tagging Investor
shall be limited to representations and warranties related to such Tagging Investor’s
authority, ownership of Equityholder Units and ability to convey title to such Equityholder
Units, (iv) no Tagging Investor shall be liable for the inaccuracy of any representation or
warranty made by any other Person (except to the extent of any indemnification rights
granted by such Tagging Investor pursuant to Section 2(b)(ii)(i) for breaches of
representations and warranties by the Company or its Subsidiaries), and (v) no Tagging
Investor which is an institutional investor or investment fund shall be required to enter
into any restrictive covenant, including without limitation, any non-competition or
non-solicitation arrangement which survives the closing of such Transfer.



          (c) Permitted Transfers.





     (i) The restrictions contained in Section 2(a) and 2(b) shall not apply
with respect to any Transfer of Equityholder Units by any Equityholder (A) in the case of an
individual Equityholder, pursuant to applicable laws of descent and distribution or, if



12









 







such Transfer is made for bona fide estate planning purposes (which bona fide estate
planning purposes, if requested by the Board, shall be verified by a legal opinion from
counsel experienced in such matters), then to any member of such Equityholder’s Family
Group, (B) in the case of a non-individual Equityholder, to or among its Affiliates, or to
any of their lenders as collateral security, (C) in the case of a Guggenheim Investor, a
Transfer to or among any Guggenheim Entity, so long as Guggenheim Capital, LLC or one of its
Affiliates has the sole power to vote and exercise contractual rights with respect to such
transferred Units, (D) in the case of a Wellington Investor, a Transfer to or among any
Wellington Entity, so long as Wellington Management Company, LLP or one of its Affiliates
has a management or investment management relationship with the transferee, (E) in the case
of a Silver Rock Entity, to any one or more of the following: (I) any direct or indirect
member, owner, partner, manager, officer or director of a Silver Rock Entity, (II) any
family member of any Person in clause (I), (III) any trust, retirement or benefit plan,
individual retirement account or other entity formed or existing for the benefit of any
Person(s) in clause (I) or (II), or (IV) any philanthropic, charitable or non-profit
organization or foundation established in whole or in part by any Person(s) in clause (I) or
(II), (F) in the case of any Investor that is an investment company registered under the
Investment Company Act, in connection with any merger, combination or consolidation of such
Investor with or into another Person that is an investment company registered under the
Investment Company Act, or (G) to any other Equityholder; provided, in each case,
that any such transferee shall have complied with the requirements of Section
2(c)(ii).




     (ii) Prior to any proposed transferee’s acquisition of Equityholder Units pursuant to a
Transfer permitted by Section 2(a)(i), 2(a)(iii) or 2(a)(iv), in each case, unless waived in
writing by the Board, or pursuant to a Transfer permitted by Section 2(c)(i), such proposed
transferee must agree to take such Equityholder Units subject to and to be fully bound by
the terms of this Agreement applicable to such Equityholder Units by executing a joinder to
this Agreement substantially in the form attached hereto as Exhibit A and delivering such
executed joinder to the Secretary of the Company prior to the effectiveness of such Transfer
(unless such Transfer is pursuant to applicable laws of descent and distribution, in which
case, such executed joinder shall be delivered to the Secretary of the Company as soon as
reasonably possible after such Transfer). All transferees acquiring Equityholder Units
pursuant to a Transfer permitted by Section 2(c)(i) and executing a joinder in compliance
with this Section 2(c)(ii) are collectively referred to herein as “Permitted Transferees”.



          (d) Each Equityholder hereby covenants and agrees that such Equityholder will at all times act
in good faith with respect to its obligations under this Section 2 and will not structure a
transaction or series of related transactions for the specific purpose of avoiding its obligations
under this Section 2.




          3. Approved Company Sale.




          (a) If a Sale of the Company is approved in accordance with Section 8 (an “Approved
Company Sale”), then each holder of Equityholder Units will vote for, consent to and raise no
objections against the Approved Company Sale or the process. If the Approved






13









 







Company Sale is structured as a merger or consolidation, then each holder of Equityholder
Units shall waive any dissenters rights, appraisal rights or similar rights in connection with such
merger or consolidation. If the Approved Company Sale is structured as a Transfer of Equityholder
Units, then each holder of Equityholder Units shall agree to sell all of his or its Equityholder
Units and rights to acquire Equityholder Units on the same terms and conditions, in all material
respects, as applicable to the respective types of Equityholder Units to be Transferred. Each
holder of Equityholder Units shall take all necessary or desirable actions in connection with the
consummation of an Approved Company Sale as requested by the Company, including, without
limitation, executing the applicable purchase agreement. Notwithstanding the foregoing, a holder
of Equityholder Units will not be required to comply with this Section 3(a) in connection with any
Approved Company Sale unless (i) no Equityholder will be required to grant any indemnification
rights except indemnification rights which constitute identical indemnification rights (pro rata
based upon the consideration received and not joint and several, other than any such obligations
that relate solely to a particular Equityholder, such as indemnification with respect to
representations and warranties or covenants made by such Equityholder, in respect of which only
such Equityholder shall be liable), (ii) no Equityholder shall be required to make any
representation or warranty that is not made by all other Equityholders, (iii) any representations
and warranties to be made by an Equityholder shall be limited to representations and warranties
related to such Equityholder’s authority, ownership of Equityholder Units and ability to convey
title to such Equityholder Units, (iv) no Equityholder shall be liable for the inaccuracy of any
representation or warranty made by any other Person (except to the extent of any indemnification
rights granted by such Equityholder pursuant to Section 3(a)(i) for breaches of
representations and warranties by the Company or its Subsidiaries), and (v) no Equityholder which
is an institutional investor or investment fund shall be required to enter into any restrictive
covenant, including without limitation, any non-competition or non-solicitation arrangement which
survives the closing of such Transfer.




          (b) The foregoing obligations of the Equityholders with respect to an Approved Company Sale
are subject to the satisfaction of the following conditions: (i) such Approved Company Sale shall
be a bona fide Sale of the Company to a party which is not an Affiliate of either the Company or
any Equityholder or an Affiliate of any of the foregoing, (ii) upon the consummation of such
Approved Company Sale the aggregate consideration payable upon consummation of such Approved Sale
to all Equityholders in respect of their Equity Equivalents shall be apportioned and distributed as
between the different classes or series of Equity Equivalents in accordance with the distribution
priorities set forth in Article 7 of the LLC Agreement as in effect immediately prior to such
Approved Company Sale, and as between holders of Equity Equivalents of a particular class or
series, ratably based on the Equity Equivalents of such class or series actually Transferred in the
Approved Company Sale and (iii) each holder of then currently exercisable or convertible rights to
acquire Equity Equivalents shall be given an opportunity to exercise such rights prior to the
consummation of the Approved Company Sale and participate in such sale as a holder of such class of
Equity Equivalents.




          (c) The Company will bear the costs of any actual or proposed Approved Company Sale, which
costs will allocated pro rata to the holders of the Common Units. Costs incurred by the holders of
Equityholder Units on their own behalf will not be considered costs of the Approved Company Sale;
provided, that in the event the Approved Company Sale is






14









 








          consummated, the Company shall pay the reasonable attorney’s fees and expenses of one counsel
chosen by the Majority Common Holders in connection with the Approved Company Sale.




          4. Financial Statements and Access to Information.




          (a) Financial Statements; Annual Budget; Other Information. The Company shall deliver
to (x) each Investor which holds Common Units representing at least 1% of the aggregate number of
outstanding Common Units of the Company and, (y) at such time when the CDP Investors no longer
constitute the Majority Common Holders, each CDP Investor (so long as such CDP Investor holds
Common Units representing at least 1% of the aggregate number of outstanding Common Units of the
Company):





     (i) within 30 days after the end of each monthly accounting period in each fiscal year
of the Company (other than any monthly accounting period ending on the last day of a fiscal
quarter of the Company), unaudited consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period (as well as unaudited consolidated
statements of income of the Company and its Subsidiaries for the period from the beginning
of the fiscal year to the end of such month) and unaudited consolidated balance sheets of
the Company and its Subsidiaries as of the end of such monthly period (and such financial
statements shall set forth in each case comparisons to the Company’s and its Subsidiaries’
corresponding period in the preceding fiscal year). Such financial statements shall be
prepared in accordance with generally accepted accounting principles, consistently applied,
subject to the absence of footnote disclosures and to normal year-end adjustments;




     (ii) within 45 days after the end of each quarterly accounting period in each fiscal
year of the Company (other than any quarterly accounting period ending on the last day of a
fiscal year of the Company), unaudited consolidated statements of income and cash flows of
the Company and its Subsidiaries for such quarterly period (as well as unaudited
consolidated statements of income of the Company and its Subsidiaries for the period from
the beginning of the fiscal year to the end of such quarter) and unaudited consolidated
balance sheets of the Company and its Subsidiaries as of the end of such quarterly period
(and such financial statements shall set forth in each case comparisons to the Company’s and
its Subsidiaries’ corresponding period in the preceding fiscal year). Such financial
statements shall be prepared in accordance with generally accepted accounting principles,
consistently applied, subject to the absence of footnote disclosures and to normal year-end
adjustments;




     (iii) within 90 days after the end of each fiscal year of the Company, audited
consolidated statements of income and cash flows of the Company and its Subsidiaries for
such fiscal year, and audited consolidated balance sheets of the Company and its
Subsidiaries as of the end of such fiscal year (and such financial statements shall set
forth in each case comparisons to the Company’s and its Subsidiaries’ corresponding period
in the preceding fiscal year). Such financial statements shall be prepared in accordance
with generally accepted accounting principles, consistently applied;



15









 






     (iv) within 90 days after the end of each fiscal year of the Company, an annual budget
of the Company and its Subsidiaries (presented on a monthly basis) containing, among other
things, (i) pro forma financial statements for each fiscal quarter of the next fiscal year
of the Company and (ii) information regarding the aggregate compensation proposed to be paid
during such fiscal year to Executive Officers of the Company;




     (v) promptly following receipt by the Company, each audit response letter, accountant’s
management letter and other written report submitted to the Company by its independent
public accountants in connection with an annual or interim audit of the books of the Company
or any of its Subsidiaries;




     (vi) promptly after the commencement thereof, notice of all actions, suits, claims,
proceedings, investigations and inquiries that could materially and adversely affect the
Company or any of its Subsidiaries; and




     (vii) promptly, from time to time, such other information regarding the business,
prospects, financial condition, operations, property or affairs of the Company and its
Subsidiaries as any Investor or CDP Investor reasonably may request.



          (b) Access to Information. The Company shall permit (w) any Investor which holds
Common Units representing at least 5% of the aggregate number of outstanding Common Units, (x) any
Guggenheim Investor, so long as the Guggenheim Common Unit Threshold is met, (y) any Wellington
Investor, so long as the Wellington Common Unit Threshold is met and (z) at such time when the CDP
Investors no longer constitute the Majority Common Holders, each CDP Investor (so long as the CDP
Common Unit Threshold is met); and each of their respective representatives (including, without
limitation, its legal counsel and accountants), during normal business hours and such other times
as any such holder may reasonably request, to (i) visit and inspect any of the properties of the
Company and its Subsidiaries, (ii) examine the corporate, financial and similar type records,
reports and documents of the Company and its Subsidiaries, including, without limitation, all
internal management documents, reports of operations, reports of adverse developments, copies of
any management letters, communications with equityholders or directors, press releases and
registration statements, and make copies thereof or extracts therefrom and (iii) discuss the
affairs, finances and accounts of any such entities with any of the Executive Officers and or
senior managers of the Company or any of its Subsidiaries. Notwithstanding the foregoing, such
access shall be arranged in prior consultation with Stephen J. Cloobeck (or, if Stephen J. Cloobeck
is no longer serving as an officer of the Company, David F. Palmer or, if David F. Palmer is no
longer serving as an officer of the Company, then the Person then serving as President of the
Company), except with respect to communications with Stephen J. Cloobeck, David F. Palmer or any
person appointed as Chief Financial Officer after the date hereof.




          5. Legend.




          (a) The Equityholder Units shall initially be uncertificated. However, in the event that the
Company determines at a later date to issue certificates representing the Equityholder Units, each
certificate or instrument evidencing Equityholder Units and each certificate or instrument issued
in exchange for or upon the Transfer of any Equityholder Units






16









 







(if such securities remain Equityholder Units (as defined herein) after such Transfer) shall
be stamped or otherwise imprinted with a legend in substantially the following form:





“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON _________, 20__ AND HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO A FOURTH AMENDED AND RESTATED
SECURITYHOLDERS AGREEMENT DATED AS OF JULY 21, 2011, AS MAY BE
AMENDED FROM TIME TO TIME BY AND AMONG THE ISSUER OF SUCH SECURITIES
AND CERTAIN OF THE ISSUER’S SECURITYHOLDERS. A COPY OF SUCH FOURTH
AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT WILL BE FURNISHED
WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.”


The legend set forth above regarding this Agreement shall be removed from the certificates
evidencing any securities which cease to be Equityholder Units. Upon the request of any
Equityholder, the Company shall remove the Securities Act portion of the legend set forth above
from the certificate or certificates for such Equityholder Units; provided that such
Equityholder Units (i) are eligible (as reasonably determined by the Company) for sale pursuant to
Rule 144 (or any similar rule or rules then in effect) under the Securities Act or (ii) have been
sold pursuant to Rule 144 or an effective registration statement.




          (b) Unless waived by the Company, no Equityholder may Transfer any Equityholder Units (except
pursuant to an effective registration statement under the Securities Act) without first delivering
to the Company an opinion of counsel reasonably acceptable in form and substance to the Company
(which counsel will be reasonably acceptable to the Company) that registration under the Securities
Act is not required in connection with such Transfer. If such opinion of counsel reasonably
acceptable in form and substance to the Company further states that no subsequent Transfer of such
Equityholder Units will require registration under the Securities Act (including due to such
Equityholder Units being eligible for sale pursuant to Rule 144 (or any similar rule or rules then
in effect) under the Securities Act), the Company will promptly upon such Transfer deliver new
certificates for such securities (if such securities are certificated as of such time) which do not
bear the Securities Act portion of the legend set forth in Section 5(a).




          6. Transfers in Violation of Agreement. Any Transfer or attempted Transfer of any
Equityholder Units in violation of any provision of this Agreement or the LLC Agreement






17









 







shall be null and void, and the Company shall not record such Transfer on its books or treat
any purported transferee of such Equityholder Units as the owner of such securities for any
purpose.




          7. Preemptive Rights.




          (a) If, at any time after the date hereof and prior to the consummation of a Qualified Public
Offering, the Company wishes to issue any Units or any options, warrants or other rights to acquire
Units or any notes or other Convertible Securities, other than Excluded Units (all such Units and
other rights and securities other than Excluded Units, collectively, the “Equity
Equivalents”), to any Person or Persons, the Company shall promptly deliver a notice of
intention to sell or otherwise issue (the “Company’s Notice of Intention to Sell”) to each
Investor setting forth a description and the number of the Equity Equivalents and any other
securities proposed to be issued, the proposed purchase price and terms of sale, including the
identity of the prospective transferee(s). Upon receipt of the Company’s Notice of Intention to
Sell, each Investor shall have the right to elect to purchase, at the price and on the terms stated
in the Company’s Notice of Intention to Sell, a number of the Equity Equivalents equal to the
product of (i) the percentage determined by dividing the number of Common Units then owned by such
Investor by the number of vested Common Units then outstanding multiplied by (ii) the number of
Equity Equivalents proposed to be issued (as described in the applicable Company’s Notice of
Intention to Sell); provided that, notwithstanding anything contained herein to the
contrary, if the Company is issuing Equity Equivalents together as a unit with the issuance of any
debt or other equity securities of the Company or any of its Subsidiaries, then any Investor who
elects to purchase such Equity Equivalents pursuant to this Section 7 must also purchase a
corresponding proportion of such other debt or equity securities, all at the proposed purchase
price and on terms of sale as specified in the applicable Company’s Notice of Intention to Sell.
Such election shall be made by the electing Investor by written notice to the Company within ten
(10) business days after receipt by such Investor of the Company’s Notice of Intention to Sell (the
“Acceptance Period”).




          (b) To the extent an effective election to purchase has not been received from any Investor
pursuant to subsection (a) above in respect of the Equity Equivalents proposed to be issued
pursuant to the applicable Company’s Notice of Intention to Sell, the Company may, at its election,
during a period of one hundred and eighty (180) days following the expiration of the applicable
Acceptance Period, issue and sell the remaining Equity Equivalents to be issued and sold to any
Person at a price and upon terms not more favorable to such Person than those stated in the
applicable Company’s Notice of Intention to Sell; provided, however, that failure by any
Investor to exercise its option to purchase with respect to one issuance and sale of Equity
Equivalents shall not affect its option to purchase Equity Equivalents in any subsequent issuance
and sale. In the event the Company has not sold any Equity Equivalents covered by a Company’s
Notice of Intention to Sell within such one hundred and eighty (180) day period, the Company shall
not thereafter issue or sell such Equity Equivalents, without first offering such Equity
Equivalents to each Investor in the manner provided in this Section 7.




          (c) If any Investor gives the Company notice, pursuant to the provisions of this Section
7, that such Investor desires to purchase any Equity Equivalents, payment therefor shall be by
check or wire transfer of immediately available funds, against delivery of the securities (which
securities shall be issued free and clear of any liens or encumbrances) at the






18









 







executive offices of the Company no later than the last closing date fixed by the Company for
the sale of the applicable Equity Equivalents, which last closing date shall be no earlier than 15
business days after the date the Company delivers the applicable Company’s Notice of Intention to
Sell. In the event that any proposed sale is for a consideration other than cash, such Investor
may pay cash in lieu of all (but not part) of such other consideration, in the amount determined
reasonably and in good faith by the Board to represent the fair value of such consideration other
than cash.




          8. Protective Provisions. (a) The Company shall comply with the following covenants,
unless it has received the prior written consent of (x) the Majority CDP Holders (so long as the
CDP Investors meet the Minimum Threshold) and (y) either (A) the Majority Wellington
Holders (so long as the Wellington Investors meet the Minimum Threshold) or (B) the Majority
Guggenheim Holders (so long as the Guggenheim Investors meet the Minimum Threshold):





     (i) The Company shall make Tax Distributions to the holders of Units as and when
required under the LLC Agreement (and the Company shall cause its direct and indirect
Subsidiaries to make distributions sufficient to satisfy such obligation); provided,
however, that, so long as the Senior Note Indenture is in effect and to the extent funded by
distributions from DRC and its Subsidiaries, the aggregate Tax Distributions since the Issue
Date shall not exceed the lesser of:




     (A) the aggregate amount since the Issue Date of the relevant tax (including
any penalties and interest) that DRC would owe if it were filing a separate tax
return (or a separate consolidated or combined return with its Subsidiaries that are
members of DRC’s consolidated or combined group), taking into account any carryovers
and carrybacks of tax attributes (such as net operating losses) of DRC and such
Subsidiaries from other taxable years; and




     (B) the aggregate amount of the relevant tax that the Equityholders actually
owe to the appropriate taxing authority after the date hereof;




provided, further, however, that any Tax Distributions received from the Company from funds
provided by DRC and its Subsidiaries shall be paid over to the appropriate taxing authority
within 30 days of receipt by the Equityholders of such Tax Distributions or refunded to the
Company (which refunded amounts shall be paid to DRC);




     (ii) The Company shall maintain and cause each of its Subsidiaries to maintain its
existence, material licenses and material permits in good standing;




     (iii) The Company shall comply and cause each of its Subsidiaries to comply with all
applicable material laws, rules and regulations and all of its material contractual
obligations;




     (iv) The Company shall pay and cause each of its Subsidiaries to pay all required taxes
as and when due and payable;



19









 






     (v) Neither the Company nor any of its Subsidiaries shall become a party to any
agreement which, by its terms: (1) expressly restricts the Company’s performance of this
Agreement or any other Transaction Document or (2) imposes any non-competition or other
restrictive covenant obligation on Investor or any of their Affiliates without such
Investor’s prior written consent;




     (vi) The Company shall maintain and cause each of its Subsidiaries to maintain
insurance (in accordance with past practice and industry standards);




     (vii) The Company shall hold meetings of the Board on at least a quarterly basis;




     (viii) The Company shall not (A) create or issue any equity interests of the Company
senior to the Common Units with respect to distributions (including, without limitation, the
distribution of assets on the liquidation, dissolution or winding up of the Company) or
rights of redemption, or (B) issue or transfer (or cause to be issued or transferred) any
equity securities or equity-linked securities in any of its Subsidiaries (other than
Unrestricted Subsidiaries) to any Person other than the Company or any of its direct or
indirect wholly-owned Subsidiaries unless each Investor is offered an opportunity to
participate in such issuance or transfer as if it was an offering of Units by the Company
subject to the preemptive rights of Section 7(a);




     (ix) The Company shall not repurchase or redeem any equity interest of the Company or
Convertible Securities in excess of $5,000,000 in the aggregate per calendar year, other
than (A) Equity Equivalents held by any employee of the Company or any of its Subsidiaries
or the Management Company in the event of such employee’s death, retirement or termination
of employment to the extent permitted under the Senior Note Indenture at a price not to
exceed fair market value, (B) the repurchase or redemption of Units pursuant to the
Redemption Agreement or the CDP Redemption Agreement or (C) any repurchase or redemption
(including any repurchase or redemption of the Guggenheim Warrant) which is offered pro rata
to all Equityholders;




     (x) The Company shall not merge or consolidate, or permit any Material Subsidiary to
merge or consolidate, with or into any Person (other than mergers or consolidations among
the Company or any of its direct or indirect wholly-owned Subsidiaries), or sell, lease
transfer, convey or dispose of, in one or a series of related transactions, all or
substantially all of the assets of the Company or any Material Subsidiary, or otherwise
effectuate a Sale of the Company;




     (xi) the Company shall not consummate, or permit any Material Subsidiary (other than an
Unrestricted Subsidiary) to consummate, a reorganization or recapitalization of the Company
or any Material Subsidiary (other than Unrestricted Subsidiaries) or effect any other change
in the capital structure of the Company or any Material Subsidiary (other than Unrestricted
Subsidiaries), other than mergers or consolidations among the Company or any of its direct
or indirect wholly-owned Subsidiaries;



20









 







(xii) The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to, any Indebtedness in excess of
any limitations on Indebtedness set forth in the Senior Note Indenture;




     (xiii) The Company shall not create, incur or assume, or permit any of its Subsidiaries
to create, incur or assume, any lien or encumbrance of any kind upon the assets of the
Company or any of its Subsidiaries which is not permitted under the Senior Note Indenture;




     (xiv) The Company shall not make any material change to the Principal Line of Business
conducted by the Company and its Subsidiaries;




     (xv) The Company shall not acquire any interest in or contribute capital to, or permit
any of its Subsidiaries to acquire any interest in or contribute capital to, any Person
(including, without limitation, any Unrestricted Subsidiary) or business (whether by a
purchase of assets, purchase of equity, merger or otherwise), or enter into any joint
venture, which requires a capital investment by the Company and/or its Restricted
Subsidiaries to consummate such transaction in excess of $20,000,000 in the aggregate or
which would not be permitted by the Senior Note Indenture;




     (xvi) The Company shall not grant options or issue Equity Equivalents to any employee
of the Company or any of its Subsidiaries other than options or Equity Equivalents relating
to Common Units pursuant to equity incentive plans approved by the Board which Common Units
shall not exceed 112.227 Common Units (adjusted for unit splits, unit combinations and other
similar transactions occurring after the date hereof);




     (xvii) The Company shall not permit any of the Company’s Subsidiaries (other than
Unrestricted Subsidiaries) to issue any equity securities or Convertible Securities to any
Person other than the Company or any of the Company’s direct or indirect wholly-owned
Subsidiaries, or permit any other transaction to occur which would result in any direct or
indirect Subsidiary of the Company (other than any Unrestricted Subsidiary) not being a
direct or indirect wholly-owned Subsidiary of the Company;




     (xviii) The Company shall not, and shall not permit any of its Subsidiaries to, enter
into or permit to exist any transaction (including the purchase, sale, lease or exchange of
any property, employee compensation arrangements or the rendering of any service) with, or
for the benefit of, any Affiliate of the Company or any of its Subsidiaries, member of the
Board or Executive Officer of the Company (or any Affiliate, Executive Officer, director,
family member or equityholder of the foregoing); provided, however, that this clause (xviii)
shall not apply to the following:




     (A)
Reasonable ordinary course employment, consultant and director arrangements
approved by the Board, including reasonable compensation (including bonuses) and
other reasonable benefits (including retirement, health, severance, stock option and
other benefit plans) for directors, officers, consultants and employees of the
Company and its Subsidiaries;



21









 






     (B)
transactions between or among the Company and/or any of its Subsidiaries;




     (C)
any transaction with any non-Affiliate that becomes an Affiliate as a
result of such transaction;




     (D)
loans or advances to employees or consultants (other than to Stephen J.
Cloobeck or David F. Palmer or any family member of either of them (or any entity
owned or controlled by Stephen J. Cloobeck, David F. Palmer or any family member of
either of them)) in the ordinary course of business and consistent with past
practice, and the cancellation or forgiveness or modification of the terms of such
loans or advances;




     (E)
any agreement existing on the date hereof, as in effect on the date hereof,
or as modified, amended, amended and restated, supplemented or replaced so long as
the terms of such agreement as modified, amended, amended and restated, supplemented
or replaced (x) do not result in an increase of more than 10% in the net cost
thereof to the Company and its Subsidiaries or (y) are not materially in other
respects more disadvantageous to the Company and its Subsidiaries, than the terms of
such agreement as in effect on the date hereof;




     (F)
any transaction approved pursuant to the requirements of Section 8(b); and




     (G)
any transaction not covered by clauses (A) through (F) above with or for
the benefit of an Affiliate of the Company (other than a family member of an
Affiliate or any entity owned or controlled by such family member) if (x) the amount
of such transaction, along with any other transaction (whether or not with the same
Person) permitted under this Section 8(a)(xviii)(G), is $3,600,000 or less
in any fiscal year and (y) the terms and conditions of such transaction are at least
as favorable to the Company or its Subsidiaries as would be obtained through an
arm’s-length negotiation with an independent party; and




     (xix) The Company shall not agree to any action or inaction that would not comply with
any of the foregoing covenants.



          (b) Notwithstanding anything to the contrary set forth herein, other than transactions covered
by Section 9, (i) any transaction between the Company or any of its Subsidiaries, on the
one hand, and any Guggenheim Entity, on the other hand, shall require the prior written consent of
(A) the Majority CDP Holders (so long as the CDP Investors meet the Minimum Threshold) and
(B) the Majority Wellington Holders (so long as the Wellington Investors meet the Minimum
Threshold); and (ii) any transaction between the Company or any of its Subsidiaries, on the one
hand, and any Wellington Entity, on the other hand, shall require the prior written consent of (A)
the Majority CDP Holders (so long as the CDP Investors meet the Minimum Threshold) and (B)
the Majority Guggenheim Holders (so long as the Guggenheim Investors meet the Minimum Threshold).




          9. Right of Participation.







22









 








          (a) To the extent any Guggenheim Entity shall propose to enter into an equity or debt
financing transaction with any Unrestricted Subsidiary (other than pursuant to Section
9(b)), including issuing any equity, equity-linked or debt securities to any Guggenheim Entity,
then at least ten (10) business days prior to the closing of such transaction, the Company shall
offer the Wellington Investors by written notice (the “Wellington Participation Notice”)
the right to elect to participate in such transaction with such Unrestricted Subsidiary, up to 20%
in the aggregate of the total transaction, on terms and conditions no less favorable to such
Wellington Investors than the terms and conditions offered to such Guggenheim Entity(ies). The
Wellington Investors shall have five (5) business days after receipt of such Wellington
Participation Notice to elect, by written notice to the Company, to participate in such
transaction. The closing date for such transaction shall be no earlier than ten (10) business days
after the date the Company delivers the applicable Wellington Participation Notice to the
Wellington Investors. The Wellington Investors may assign their rights of participation under this
Section 9(a) to any Wellington Entity.




          (b) To the extent any Wellington Entity shall propose to enter into an equity or debt
financing transaction with any Unrestricted Subsidiary (other than pursuant to Section
9(a)), including issuing any equity, equity-linked or debt securities to any Wellington Entity,
then at least ten (10) business days prior to the closing of such transaction, the Company shall
offer the Guggenheim Investors by written notice (the “Guggenheim Participation Notice”)
the right to elect to participate in such transaction with such Unrestricted Subsidiary, up to 20%
in the aggregate of the total transaction, on terms and conditions no less favorable to such
Guggenheim Investors than the terms and conditions offered to such Wellington Entity(ies). The
Guggenheim Investors shall have five (5) business days after receipt of such Guggenheim
Participation Notice to elect, by written notice to the Company, to participate in such
transaction. The closing date for such transaction shall be no earlier than ten (10) business days
after the date the Company delivers the applicable Guggenheim Participation Notice to the
Guggenheim Investors. The Guggenheim Investors may assign their rights of participation under this
Section 9(b) to any Guggenheim Entity.




          10. Director and Officer Liability Insurance. The Company (or one of its
Subsidiaries) will maintain director and officer liability insurance coverage in amounts customary
in the industry.




          11. Use of Investors’ Name. Each of the parties hereto agrees that neither it nor any
of its employees, directors, officers, agents or representatives will directly or indirectly use or
refer in writing to the name of any Investor or its investment adviser, if applicable, or any
derivation thereof, for any purpose whatsoever (including, without limitation, in any filing with
any governmental authority, any press release, any public announcement or statement or in any
interview or other discussion with any reporter or other member of the media), without the prior
written consent of such Investor or investment adviser, if applicable, with respect to each such
use or reference.




          12. Amendment and Waiver. No modification, amendment or waiver of any provision of
this Agreement shall be effective against the Equityholders or the Company unless such modification
or amendment is approved in writing by (i) the Company and (ii) the Majority Investor Holders; and
any modification or amendment to which such written consent is obtained






23









 







will be binding upon the Company and each Equityholder; provided, however,
that if any modification, amendment or waiver of any provision of this Agreement that would
materially and adversely affect the rights, interests or obligations of any CDP Investor or any
Investor hereunder in a manner differently than other Equityholders holding the same class or
series of Units, then such modification, amendment or waiver shall not be effective against such
CDP Investor or such Investor, as applicable, without the written consent of such CDP Investor or
such Investor, as applicable, with respect thereto; provided further that any modification,
amendment or waiver of the provisions of Section 8 or this Section 12 shall not be effective
against the Wellington Investors or the Guggenheim Investors without the written consent of the
Majority Wellington Holders (so long as the Wellington Investors meet the Minimum Threshold) and
the Majority Guggenheim Holders (so long as the Guggenheim Investors meet the Minimum Threshold).
No waiver of any provision of this Agreement shall be effective against the Company unless such
waiver is approved in writing by the Company. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every provision of this Agreement
in accordance with its terms. Each Equityholder shall remain a party to this Agreement only so
long as such person is the holder of record of Equityholder Units.




          13. Severability. Whenever possible, each provision of this Agreement shall 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 invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.




          14. Entire Agreement. Except as otherwise expressly set forth herein, this document
embodies the complete agreement and understanding among the parties hereto with respect to the
subject matter hereof 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).




          15. Termination. This Agreement will automatically terminate and be of no further
force or effect immediately after the consummation of an Approved Company Sale or a Qualified
Public Offering.




          16. Successors and Assigns. Except as otherwise provided herein, this Agreement shall
bind and inure to the benefit of and be enforceable by the Company and its successors and assigns,
including any corporation which is a successor to the Company, and the Equityholders and any
subsequent holders of Equityholder Units and the respective successors, heirs and assigns of each
of them, so long as they hold Equityholder Units.




          17. Counterparts; Facsimile. This Agreement may be executed in separate counterparts
(each of which may be transmitted via facsimile) each of which shall be an original and all of
which taken together shall constitute one and the same agreement.







24









 








          18. Remedies. The parties hereto shall be entitled to enforce their rights under this
Agreement specifically to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. 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 the Company and any Equityholder may in his, her, or its sole discretion
apply to any court of law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.




          19. 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 or e-mail to the recipient, or if sent by certified or registered
mail, return receipt requested, will be deemed to have been given two business days thereafter.
Such notices, demands and other communications shall be sent to any Equityholder 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

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

Email: david.palmer@diamondresorts.com



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

Email: howard.lanznar@kattenlaw.com



To CDP:



Cloobeck Diamond Parent, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

Email: david.palmer@diamondresorts.com





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




25









 








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 1818 Partners:



1818 Partners, LLC

10600 West Charleston Boulevard

Las Vegas, NV 89135

Attention: Stephen J. Cloobeck and David F. Palmer

Facsimile: (702) 798-8840

Email: david.palmer@diamondresorts.com



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

Email: howard.lanznar@kattenlaw.com



To Guggenheim:



DRP Holdco, LLC

135 East 57th Street

6th Floor

New York, NY 10022

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

Email: zachary.warren@guggenheimpartners.com



and




26









 







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 Silver Rock Entities:



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 the Wellington Purchasers:



Wellington Management Company, LLP

280 Congress Street

Boston, MA 02210

Attention: Legal and Compliance Department

Facsimile: (617) 289-5699

E-Mail: seclaw@wellington.com





27









 









provided that any notices or communications to any Wellington Purchaser
shall be sent only to the Legal and Compliance Department at Wellington
Management Company, LLP, and neither the Company nor any other party hereto
shall send notices or communications to any other Person on behalf of any
Wellington Purchaser without the prior written consent of a member of the
Legal and Compliance Department at Wellington Management Company, LLP.




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


Greenberg Traurig

One International Place

Boston, MA 02210

Attention: Bradley A. Jacobson

Facsimile: (617) 279-8402

Email: jacobsonb@gtlaw.com



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.




          20. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the state of Nevada, without giving effect to any rules, principles or provisions
of choice of law or conflict of laws.




          21. Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.




          22. Dispute Resolution. 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 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.




          23. 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.




          24. Venue; Submission to Jurisdiction. ANY AND ALL SUITS, LEGAL ACTIONS OR
PROCEEDINGS ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT ONLY IN A STATE OR FEDERAL COURT IN OR
FOR CLARK COUNTY, NEVADA AND EACH PARTY TO THIS AGREEMENT HEREBY SUBMITS TO AND






28









 







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.




          25. 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.




          26. Issuance by the Company of Additional or Units. The parties hereto hereby
acknowledge that, after the date hereof, the Company may issue additional Units to certain Persons
(the “New Members”) in accordance with the terms of this Agreement. In connection with any
such issuance, the parties hereto agree that, with the prior written consent of the Majority Common
Holders, the Company may grant (but shall be under no obligation to grant) such New Members rights
substantially similar to the rights granted to the Other Investors hereunder (provided that, if
such grant is made, each such New Member is also subject to the obligations of the Other Investors
hereunder) by causing each such New Member to execute a joinder to this Agreement substantially in
the form of Exhibit A hereto.




          27. Time of the Essence; Computation of Time. Time is of the essence for each and
every provision of this Agreement. Whenever the last day for the exercise of any privilege or the
discharge or any duty hereunder shall fall upon a Saturday, Sunday, or any date on which commercial
banks in the State of New York are authorized to be closed, the party having such privilege or duty
may exercise such privilege or discharge such duty on the next succeeding day which is a regular
business day.




* * * * *




29









 





          IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amended and Restated
Securityholders Agreement as of the date first above written.




	 	 	 	 	 
	 	COMPANY:


DIAMOND RESORTS PARENT, LLC

 	 
	 	By:  	/s/ David F. Palmer
 	 
	 	 	Name:  	David F. Palmer 	 
	 	 	Title:  	President and Chief Financial Officer 	 
	 
	 	CDP:


CLOOBECK DIAMOND PARENT, LLC

 	 
	 	By:  	/s/ Stephen J. Cloobeck
 	 
	 	 	Name:  	Stephen J. Cloobeck 	 
	 	 	Title:  	Sole Manager 	 
	 
	 	GUGGENHEIM:


DRP HOLDCO, LLC

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



[signature pages continue]




[Signature Page to Fourth Amended and Restated Securityholders Agreement]





 









 





	 	 	 	 	 	 	 

	 	 	1818 PARTNERS:


1818 PARTNERS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Chautauqua Management, LLC	 	 
	 

	 	Its:
	 	Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David F. Palmer
 

Name: David F. Palmer
	 	 
	 

	 	 	 	Title:   Sole Manager	 	 






[signature pages continue]




[Signature Page to Fourth Amended and Restated Securityholders Agreement]



 









 





	 	 	 	 	 	 	 

	 	 	SILVER ROCK ENTITIES:


SILVER ROCK FINANCIAL LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeff Green
 

Jeff Green
	 	 
	 

	 	Its:	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	IN — FP1 LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeff Green	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Jeff Green	 	 
	 

	 	Its:	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	BDIF LLC	 	 
	 

	 	By:
	 	/s/ Jeff Green	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Jeff Green	 	 
	 

	 	Its:	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	CM — NP LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jeff Green	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Jeff Green	 	 
	 

	 	Its:
	 	Authorized Signatory	 	 






[signature pages continue]




[Signature Page to Fourth Amended and Restated Securityholders Agreement]



 









 





	 	 	 	 	 	 	 

	 	 	WELLINGTON PURCHASERS:


THE HARTFORD GROWTH OPPORTUNITIES FUND



By: Wellington Management Company, LLP

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman
 

Name: Steven M. Hoffman
	 	 
	 

	 	 	 	Title: Vice President & Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	HARTFORD GROWTH OPPORTUNITIES HLS FUND



By: Wellington Management Company, LLP

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Steven M. Hoffman	 	 
	 

	 	 	 	Title:  Vice President & Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	QUISSETT INVESTORS (BERMUDA) L.P. 


By: Wellington Management Company, LLP 

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Steven M. Hoffman	 	 
	 

	 	 	 	Title:  Vice President & Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	QUISSETT PARTNERS, L.P. 



By: Wellington Management Company, LLP 

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Steven M. Hoffman	 	 
	 

	 	 	 	Title:  Vice President & Counsel	 	 






[signature pages continue]




[Signature Page to Fourth Amended and Restated Securityholders Agreement]



 









 





	 	 	 	 	 	 	 

	 	 	THE HARTFORD CAPITAL APPRECIATION FUND


By: Wellington Management Company, LLP

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman
 

Name: Steven M. Hoffman
	 	 
	 

	 	 	 	Title: Vice President & Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	BAY POND PARTNERS, L.P. 


By: Wellington Management Company, LLP 

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Steven M. Hoffman	 	 
	 

	 	 	 	Title:  Vice President & Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	BAY POND INVESTORS (BERMUDA) L.P. 


By: Wellington Management Company, LLP 

As investment adviser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven M. Hoffman	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Steven M. Hoffman	 	 
	 

	 	 	 	Title:  Vice President & Counsel	 	 






[Signature Page to Fourth Amended and Restated Securityholders Agreement]




 









 





EXHIBIT A




FORM OF JOINDER TO

FOURTH AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT



          THIS JOINDER to the Fourth Amended and Restated Securityholders Agreement, dated as of July
21, 2011, 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 certain Common Units from _____________ and the Agreement and/or
the Company require Holder, as a holder of such Common Units, to become a party to the Agreement,
and Holder agrees to do so in accordance with the terms hereof.




          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:




               (A) Agreement to be Bound. Holder hereby 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 and shall be
deemed a [CDP Investor/Wellington Investor/Guggenheim Investor/Silver Rock Investor] and an
Equityholder for all purposes thereof. In addition, Holder hereby agrees that all Units held by
Holder shall be deemed Equityholder Units for all purposes of the Agreement.



               (B) 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 Equityholder Units and the respective successors,
heirs and assigns of each of them, so long as they hold any Equityholder Units.



               (C) 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.



               (D) Notices. For purposes of Section 19 of the Agreement, all notices, demands or
other communications to the Holder shall be directed to:



[Name]

[Address]




 









 





               (E) Governing Law. This Joinder shall be governed by and construed in accordance with
the laws of the State of Nevada, without giving effect to any rules, principles or provisions of
choice of law or conflict of laws.



               (F) Descriptive Headings. The descriptive headings of this Joinder are inserted for
convenience only and do not constitute a part of this Joinder.



* * * * *




2









 





          IN WITNESS WHEREOF, the parties hereto have executed this Joinder to the Fourth Amended and
Restated Securityholders Agreement as of the date set forth in the introductory paragraph hereof.




	 	 	 	 	 
	 	DIAMOND RESORTS PARENT, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[HOLDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: