exv10w18






Exhibit 10.18




HOMEOWNER ASSOCIATION OVERSIGHT,

CONSULTING AND EXECUTIVE MANAGEMENT SERVICES AGREEMENT




     This Homeowner Association Oversight, Consulting and Executive Management Services Agreement
(the “Agreement”) is made and is effective this 31st day of December, 2010 (“Effective
Date”), by and between Diamond Resorts Corporation, a Maryland corporation (the “Company”), and
Hospitality Management and Consulting Service, L.L.C., a Nevada limited liability company
(“Manager”).



RECITALS




     WHEREAS, Company is in the business (the “Business”) of developing, marketing and operating
timeshare vacation ownership resorts in the United States and abroad and, in furtherance thereof,
providing management services for the benefit of the trusts, not-for-profit associations and other
similar entities formed to represent interests of owners of time share resort intervals relative to
such vacation ownership resorts (the “HOAs”); and



     WHEREAS, Manager has over 25 years experience in providing management, consulting and
oversight services to trusts, not-for-profit associations and other similar entities formed to
represent interests of owners of time share resort intervals in the timeshare industry, and
possesses capabilities and experience in providing executive management services to timeshare
vacation ownership resorts and homeowner associations relative thereto; and



     WHEREAS, Manager has employees with experience in performing executive management and
consulting services; and



     WHEREAS, Company seeks to retain Manager to provide management and oversight services to and
for the benefit of the HOAs, as well as to provide certain employees to perform executive
management and consulting services directly to Company in furtherance of Company’s business and
operations; and



     WHEREAS, Company and Manager desire to enter into this Agreement to set forth the obligations
of Manager in connection with the provision of executive management, oversight and consulting
services to the HOAs and Company.



     NOW, THEREFORE, in consideration of the premises and mutual promises and covenants contained
herein, the sufficiency of which consideration is hereby acknowledged, Company and Manager do
hereby agree as follows:



1. RELATIONSHIP OF THE PARTIES



     1.1 Independent Contractor Status. Except as otherwise expressly set forth herein,
for purposes of this Agreement it is acknowledged and agreed that Company and Manager are at all
times acting and performing hereunder as independent contractors, retaining control over and
responsibility for their own respective operations and personnel. Neither Manager nor its
principals, members, directors, officers or employees shall be considered employees or agents of



 









 




the Company as a result of this Agreement. Each party shall be solely responsible for
compliance, and shall indemnify the other party for its noncompliance, with all state and federal
laws pertaining to employment taxes, income withholding, unemployment compensation contributions
and other employment related statutes regarding their respective employees, agents and servants.
Nothing in this Agreement shall at any time be construed so as to create the relationship of
employer and employee between the Company and any employee of Manager. The employment of each
employee of Manager is at-will, and each such employee of Manager or the Manager may terminate such
employee’s employment with Manager at any time and for any reason.




     1.2 Non-Assumption of Liabilities. Unless otherwise specifically provided for under
the terms of this Agreement, all debts and liabilities of a party to this Agreement to third
parties, whether existing or future, shall be the debts and liabilities of such party and not of
the other party, and neither party shall be liable for any debts or liabilities of the other party.
Each party shall, and hereby does agree to, indemnify the other party against any debts,
obligations or liabilities of the indemnifying party unless such debts, obligations or liabilities
are specifically provided in this Agreement to be borne by such indemnified party.



2. OBLIGATIONS OF MANAGER




     2.1 HOA Management Services. To and for the benefit of the Company and the HOAs,
Manager shall render executive and strategic oversight of services provided by the Company through
its subsidiaries to HOAs (“HOA Management Services”), including but not limited to management,
supervision, advice and assistance concerning any and all aspects of the operations, planning and
financing of the HOAs, as needed from time to time. The Manager shall perform the HOA Management
Services in accord with Good HOA Management Practice, as hereinafter defined. The means and
methods by which Manager performs its duties hereunder in accordance with such standard shall be
determined solely by Manager. The Manager shall have the authority to engage such professionals,
including legal counsel, accountants and financial advisors, on behalf of and at the expense of the
Company, subject to the approval of the Company, as Manager may determine necessary in the course
of providing any HOA Management Services; provided, that the Company’s approval shall not
be required to engage professionals for the performance of services that results in fees and
expenses that are less than $50,000 per year in the aggregate. Manager may provide, sub-contract
for the provision of, or arrange for the employment (by Manager or Company) of all personnel as may
be reasonably necessary for the provision of the HOA Management Services, on behalf and at the
expense of the Company, subject to the approval of the Company; provided, however, that
Manager shall remain primarily responsible for the provision of such HOA Management Services,
whether provided through Manager’s employees, subcontractors or personnel employed by the Company
at Manager’s direction. For purposes of this Agreement, the phrase “Good HOA Management Practice”
shall mean any of the practices, methods and acts engaged in or approved by a significant portion
of the homeowner property management industry during the relevant time period, or any of the
practices, methods and acts which, in the exercise of reasonable judgment in light of the facts
known at the time the decision was made, could have been expected to accomplish the desired result
at a reasonable cost consistent with good business practices, reliability, safety and expedition.
Good HOA Management Practice is not intended to be limited



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to the optimum practice, method or act to the exclusion of all others, but rather to be
acceptable practices, methods or acts generally accepted in the region.




     2.2 Corporate Management Services. To and for the benefit of the Company, Manager
shall render executive, corporate and strategic oversight of the Company’s operations and
administrative services (“Corporate Management Services”), subject to the direction of the
Company’s Board of Directors. The employees of Manager as of the date of this Agreement providing
HOA Management Services and Corporate Management Services are set forth on Schedule A
attached hereto. The Manager shall have the authority to engage such professionals, including
legal counsel, accountants and financial advisors, on behalf of and at the expense of the Company,
subject to the approval of the Company, as Manager may determine necessary in the course of
providing any Corporate Management Services; provided, that the Company’s approval shall not be
required to engage professionals for the performance of services that results in fees and expenses
that are less than $50,000 per year in the aggregate. Manager may provide, sub-contract for the
provision of, or arrange for the employment (by Manager or Company) of all personnel as may be
reasonably necessary for the provision of the Corporate Management Services on behalf of and at the
expense of the Company, subject to the approval of the Company; provided, however, that
Manager shall remain primarily responsible for the provision of such Corporate Management Services,
whether provided through Manager’s employees, subcontractors or personnel employed by the Company
at Manager’s direction. Notwithstanding any of the foregoing to the contrary, no executive
managerial services to be provided by Stephen J. Cloobeck (or JHJM Nevada I, LLC, as applicable) or David F.
Palmer (or Chautauqua Management, LLC, as applicable) may be subcontracted by Manager.



     2.3 Full Time and Attention. Manager shall cause Stephen J. Cloobeck (or JHJM Nevada I, LLC,
as applicable) to serve and fulfill the duties as the Company’s Chief Executive Officer and, for so
long as he is employed by Manager, David F. Palmer (or Chautauqua Management, LLC, as applicable)
to serve and fulfill the duties as the Company’s President and Chief Financial Officer. Manager
shall cause each of Stephen J. Cloobeck (or JHJM Nevada I, LLC, as applicable), David F. Palmer (or
Chautauqua Management, LLC, as applicable) and any other employee or contractor of Manager who
shall serve as an officer of the Company to devote his full business time and attention to the
Company. Notwithstanding any of the foregoing, Stephen J. Cloobeck (or JHJM Nevada I, LLC, as applicable),
David F. Palmer (or Chautauqua Management, LLC, as applicable) and any other employee or contractor
of Manager who shall serve as an officer of the Company may devote reasonable time and effort to
outside non-business activities, such as serving on the boards of directors, engaging in charitable
or community activities, or managing his/her personal investments; provided that such activities do
not (i) in any way interfere with the regular performance of his duties hereunder, (ii) compete
with the Company, or (iii) in the reasonable judgment of the Company’s Board of Directors, reflect
poorly upon the Company.



     2.4 Amending Services. In the event that Company and Manager desire to (i) have
Manager provide services in addition to those enumerated herein, (ii) reduce or eliminate certain
services enumerated herein, or (iii) change the personnel or allocation of salary and time provided
by personnel providing HOA Management Services and/or Corporate Management Services, the parties
shall negotiate in good faith the options available for obtaining or reducing such services or
personnel, and the related terms, conditions and costs hereof, and the parties



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shall amend Schedule A to this Agreement accordingly. Each individual person set
forth on Schedule A must be a Nevada resident.




     2.5 Provision of Services to Third Parties. Subject to Sections 2.3 and 9.11, Manager
may provide HOA Management Services or Corporate Management Services to third parties, including
Persons owned and/or controlled by Stephen J. Cloobeck; provided, however, (i) Manager
shall not engage in the Business and compete with the Company, (ii) Manager shall not provide any
HOA Management Services or Corporate Management Services to any Person engaged in the Business,
(iii) Manager shall not share any Company Work Product or Confidential Information (as such terms
are hereinafter defined) with any third party, (iv) Manager shall maintain separate accounts to
account for the expenses incurred to provide such services (which expenses shall not be borne by
the Company), and (v) Manager shall have provided the Board of the Company the details of any such
provision of HOA Management Services or Corporate Management Services to third parties, and the
Board shall have approved of the same; provided further, that the unanimous approval of the Board
shall be required in the event that the provision of such HOA Management Services or Corporate
Management Services in a particular transaction (or a group of related transactions) (x) will cost
more than $250,000 annually, or (y) will result in revenues and fees to Manager of more than
$500,000 annually.



     2.6 Compliance with Homeowner Association Agreements. Manager shall comply, in the
performance of the HOA Management Services and the Corporate Management Services under this
Agreement, with the obligations of the Company and its subsidiaries set forth in their agreements
with the HOAs.



3. OBLIGATIONS OF COMPANY




     3.1 General. Company expressly acknowledges and agrees that performance of Manager’s
obligations hereunder will require the timely cooperation and support of Company, its officers, and
agents, and affirm that they will use their commercially reasonable efforts to ensure that Manager
is provided in timely fashion the information, including financial data, required by it in the
performance of its duties hereunder.



     3.2 Insurance. Company shall, at Company’s sole cost and expense, obtain and maintain
in effect throughout the term of this Agreement, insurance policies providing for the following
coverages in respect of the services performed under this Agreement: (a) a commercial general
liability policy protecting against any and all claims for injury to persons or property occurring
in, on or about any of the Company’s properties and protecting against assumed or contractual
liability; (b) workers’ compensation coverage of the employees of Manager in such amounts as
required by law; (c) errors and omissions insurance covering the employees of Manager; (d) business
interruption insurance to cover any cessation of operations of Company, and as a result thereof,
Manager; and (e) such other insurance as the parties may agree upon, in each and every case naming
Manager as an additional insured under each such policy, and in such reasonable amounts typically
used by businesses of comparable size as Company. All insurance policies to be procured by Company
shall: (i) be issued by insurance companies reasonably satisfactory to Manager and authorized to do
business in the State of Nevada; (ii) be written as primary policy coverage and non-contributing
with respect to any coverage which Company may carry and that any coverage carried by Company
shall be excess insurance; and



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(iii) contain a requirement that Manager be notified by the insurer in the event of any
cancellation or termination of such policy or if Company shall be in default of such policy. Upon
Manager’s request, Company shall deliver a duplicate original or certified copy of each such policy
or a certificate of the insurer, certifying that such policy has been issued, providing the
coverage required by this Agreement and containing provisions specified herein, together with
evidence of payment of all applicable premiums. Each and every insurance policy required to be
carried hereunder by or on behalf of Company shall provide (and any certificate evidencing the
existence of each such insurance policy shall certify) that, unless Manager shall first have been
given thirty (30) days’ prior written notice thereof, the insurer will not cancel, materially
change or fail to renew the coverage provided by such insurance policy. The term “insurance policy”
as used herein shall be deemed to include any extensions or renewals of such insurance policy..




     4. FEES TO MANAGER AND PAYMENT OF OPERATING EXPENSES




     4.1 HOA Management Services Fee. In consideration for Manager’s services hereunder,
Company, at such times as may be approved by the Board of Directors of the Company (the “Board”),
but not less than monthly, shall pay Manager, in addition to the Corporate Management Services Fee,
the Annual Bonus, and the reimbursement of any and all of Manager’s expenses reasonably incurred in
the performance of services under this Agreement, including those pursuant to Section 4.4, an
annual fee for the HOA Management Services equal to the amount set forth on Schedule A
attached hereto (the “HOA Management Services Fee”); provided, that any HOA Management
Services Fee earned but not previously paid hereunder shall be paid in full at the time such
payment is approved hereunder. Manager shall be entitled to an additional fee or fees in
connection with any other additional services provided for the benefit of the HOA’s only if such
additional fee or fees are separately agreed upon by Company and Manager prior to the consummation
of any such transaction. The parties intend that the HOA Management Service Fee shall not be
considered “non-qualified deferred compensation” for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (“Section 409A”).



     4.2 Corporate Management Services Fee. In consideration for Manager’s services
hereunder, the Company, at such times as may be approved by the Board, but not less than monthly,
shall pay Manager, in addition to the HOA Management Services Fee, the Annual Bonus and the
reimbursement of any and all of Manager’s expenses reasonably incurred in the performance of
services under this Agreement, including those pursuant to Section 4.4, an annual fee for the
Corporate Management Services equal to the amount set forth on Schedule A attached hereto
(the “Corporate Management Services Fee”); provided, that any Corporate Management Services
Fee earned but not previously paid hereunder shall be paid in full at the time such payment is
approved hereunder. Manager shall be entitled to an additional fee or fees in connection with any
advice or assistance rendered in connection with any acquisitions, dispositions, financing
transactions or other significant transactions undertaken by Company or any of its subsidiaries
only if such additional fee or fees are separately agreed upon by Company and Manager prior to the
consummation of any such transaction. The parties intend that the Corporate Management Service Fee
shall not be considered “non-qualified deferred compensation” for purposes of Section 409A.



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     4.3 Bonus. In consideration for Manager’s services hereunder, the Company, at such
times as may be approved by the Board, shall pay Manager, in addition to HOA Management Services
Fee, the Corporate Management Services Fee and the reimbursement of any and all of Manager’s
expenses reasonably incurred in the performance of services under this Agreement, including those
pursuant to Section 4.4, an annual incentive bonus (the “Annual Bonus”) subject to achieving
certain performance goals and metrics established by the Board at the time of approval by the Board
of the Company’s annual operating budget which, for purposes of complying with Section 409A, shall
be adopted on or prior to the ninetieth (90th) day of the year with respect to which a
particular Annual Bonus is to be paid; provided, that the amount of Annual Bonus to be paid shall
not be less than the “Minimum Annual Bonus” amount set forth on Schedule A, as amended from
time to time (the “Minimum Annual Bonus”). The Board shall determine in its sole discretion the
amount of the Annual Bonus allocable to each of the HOA Management Services and the Corporate
Management Services. The Board shall determine in its sole discretion whether the goals for any
such fiscal year have been attained based on the Company’s financial results for such fiscal year
(the date on which the Board makes such determination, the “Bonus Determination Date”). The Annual
Bonus with respect to any fiscal year of the Company shall be paid no later than one hundred twenty
(120) days after the Bonus Determination Date or, if earlier, the last day of the calendar year
following the calendar year with respect to which the Annual Bonus is paid. The HOA Management
Services Fee, the Corporate Management Services Fee and the Minimum Annual Bonus shall be subject
to increase, at the discretion of the Company, in connection with the adoption of the Company’s
annual operating budget, and Schedule A shall be amended accordingly. For purposes of
complying with Section 409A, the parties hereto intend that the portion of the Annual Bonus that
exceed the Minimum Annual Bonus shall constitute performance-based compensation (as described in
Treas. Reg. Section 1.409A-1(e)), and shall be administered in accordance with such intent.



     4.4 Management Operating Expenses. Manager will not be obligated to make any advance
to, or for the account of, the Company or to pay any sums, except out of funds held in accounts
maintained by the Company, nor will Manager be obligated to incur any liability or obligation for
the account of the Company without assurance that the necessary funds for the discharge of the
liability or obligation will be provided by the Company to Manager. Without limiting the
generality of the foregoing, and provided the expenses are within the annual operating budget as
approved by the Company (as such budget may be amended from time to time), (i) the Company will
reimburse all reasonable out-of-pocket expenses incurred by Manager, or any agents, representatives
or Affiliates thereof, that are necessary to provide services pursuant to Section 2.1 of this
Agreement, following presentation of proper vouchers, invoices or receipts, and (ii) the Company
shall directly pay any outside service providers (e.g., lawyers, accountants, registered agents,
etc.) contracted by Manager, or any agents, representatives or Affiliates thereof, that are
necessary to provide services to the Company pursuant to Section 2.1 of this Agreement. All of
such reimbursements shall be made within the terms of the third party service provider’s payment
conditions as provided to Company at the time such third party was retained by Manager. For
purposes of compliance with Section 409A, all such reimbursements shall be made as soon as
administratively feasible, but in all cases no later than March 15 of calendar year after the
calendar year in which such expenses were incurred.




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4.5 Employee Benefits.




     4.5.1 During the term of this Agreement, at the Company’s sole cost and expense, the
Manager shall become a participating employer in the employee benefit plans of the Company
and Stephen J. Cloobeck, David F. Palmer and the employees of Manager shall be eligible to
participate in such benefits plans (other than equity based plans, if any) that are
generally made available to the employees of the Company from time to time and in accordance
with the provisions and requirements of such plans.



     4.5.2 For Stephen J. Cloobeck, David F. Palmer and the employees of Manager who were
employed by the Company immediately prior to the date of this Agreement (the “Transferred
Employees”), (a) such employee benefits at the commencement of this Agreement shall be
substantially similar to those provided to such persons immediately prior to such
commencement, subject to the Company’s right from time to time thereafter to adjust the
benefits plans and level of benefits generally made available to all of the Company’s
employees, (b) each Transferred Employee shall receive service credit for purposes of
eligibility, vesting and benefit accrual (but only to the extent it would not result in a
duplication of benefits) for prior service with the Company prior to being employed or
engaged by Manager and shall continue to receive service credit for purposes of eligibility,
vesting and benefit accrual (but only to the extent it would not result in a duplication of
benefits) under such benefits plans during the tenure of each Transferred Employee’s
employment or engagement by Manager, and (c) the Company shall transfer and assign to
Manager all amounts relating to each such Transferred Employee’s accrued vacation benefits
as of the date of the commencement of this Agreement and, from and after such commencement,
the vacation benefits of each Transferred Employee shall be a liability of Manager. The
Company shall be responsible for and shall pay for any and all costs, expenses and
liabilities, whether contingent or otherwise, incurred or to be incurred by Manager in
connection with the transfer of the Transferred Employees.



     4.5.3 For Stephen J. Cloobeck, David F. Palmer and the employees of Manager who were
employed by Manager prior to the date of this Agreement, effective as of such commencement,
such Persons shall be provided with benefits which are substantially identical to those
provided to the Transferred Employees, subject to the Company’s right from time to time
thereafter to adjust the benefits plans and level of benefits generally made available to
all of the Company’s employees.



     4.5.4 To the extent that Manager, in consultation with the Company, elects to provide
employee benefits to its employees in lieu of the Company, and provided such benefit plans
follow and are substantially the same as the then existing benefit plans of the Company, the
Company shall (a) be responsible for establishing such benefits plans on behalf of Stephen
J. Cloobeck, David F. Palmer and the employees of Manager, including, without limitation,
preparing such documents and filings, and engaging counsel and advisors, in connection
therewith, (b) transfer and assign all accrued amounts relating to the Transferred
Employees’ employee benefits which are eligible for transfer or assignment, and (c)
reimburse Manager for the cost of providing such employee benefits. Manager shall waive all
limitations as to preexisting conditions, exclusions,



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proof of insurability, and waiting
periods with respect to participation and coverage requirements applicable to the
Transferred Employees under any health and welfare benefit plans of Manager in which such
Transferred Employees may be eligible to participate.





     4.5.5 To the extent that this Agreement is terminated and Manager terminates any of
Stephen J. Cloobeck, David F. Palmer or any employee as a result thereof, the Company shall
be responsible for payment of any premiums for continued health coverage under COBRA to the
extent that any such terminated Person remains eligible for, and elect, such coverage under
COBRA; provided, that the Company shall have no further obligation to pay for any such
Person’s premiums for continued health coverage under COBRA if such Person becomes employed
and is eligible for coverage under a new employer’s health plan.




     4.5.6 To the extent that the Company incurs any costs or liabilities in connection with
the administration of employee benefits or payroll, whether on behalf of itself or Manager,
the Company shall be responsible for any such costs or liabilities, and shall indemnify
Manager for the same.



     4.6 Severance. The Company shall be responsible for any severance or termination
payments payable to any of the Persons set forth on Schedule A hereto pursuant to any
severance agreement, employment agreement, contractor agreement, services agreement, separation
agreement or other similar agreement with Manager, resulting from the termination of such Person’s
employment or engagement with Manager during the term of this Agreement or immediately following
the termination of this Agreement; provided, except as set forth on Schedule A, such severance
arrangements are no more favorable than the severance arrangements provided by the Company. The
current amount of potential severance liability is set forth on Schedule A. Upon the
incurrence of any severance obligation, the parties shall amend Schedule A to include such
severance or termination payments.



5. TERM OF AGREEMENT




     5.1 Term. This Agreement shall be effective as of the Effective Date hereof and shall
continue in full force and effect for a period of five (5) years unless and until terminated by
either party as hereinafter provided. This Agreement shall thereafter be automatically renewed for
successive annual periods unless the Company or Manager terminates this Agreement by giving at
least 60 days’ written notice to the other party prior to the commencement of a renewal period or
unless and until terminated by either party as hereinafter provided; provided, however,
that this Agreement shall be terminated automatically without any action or notice to Manager (a)
in the event that Stephen J. Cloobeck no longer serves as the Chief Executive Officer (or similar
position) of the Company or (b) upon the consummation of a Change of Control. For purposes hereof,
a “Change of Control” shall mean any transaction pursuant to which the Company sells its business
other than to any Affiliate of the Company by (x) a sale or conveyance of all or substantially all
of the Company’s assets to any Person, or (y) a sale or conveyance of the equity interests in the
Company, or a merger or consolidation of the Company with any Person, in any such case in which the
Company’s shareholders, immediately prior to such transaction shall own in the aggregate,
immediately after giving effect thereto, less than a



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majority of the voting interests or the
economic interests of the surviving entity (or its parent) or the purchasing entity (or its
parent), as the case may be; a public offering of the Company’s equity securities shall not be
considered a Change of Control for purposes hereof.




     5.2 Termination Upon Cause or Upon a Specified Event.




     5.2.1 Either party shall be entitled to terminate this Agreement upon written notice if
the other party fails to keep, observe or perform any material covenant agreement, term or
provision of this Agreement, required to be kept, observed or performed by such party, and
such failure shall continue for a period of thirty (30) days after written notice thereof to
the defaulting party (unless such failure cannot be cured within thirty (30) days, in which
event this Agreement shall not be terminable pursuant to this Section 5.2.1 if the
defaulting party commences to cure such failure within the thirty (30) day period and
diligently proceeds in good faith to complete the same).




     5.2.2 This Agreement shall terminate if either party dissolves or voluntarily files a
petition in bankruptcy or makes an assignment for the benefit of creditors or otherwise
seeks relief from creditors under any federal or state bankruptcy, insolvency,
reorganization or moratorium statute, or either party is the subject of an involuntary
petition in bankruptcy which is not set aside within sixty (60) days of its filing.



     5.3 Actions Upon Termination. Upon termination of this Agreement, and subject in all
respects to Sections 8.1 and 8.3, Company shall receive from Manager all proprietary information
and data, including, but not limited to, administrative, accounting and personnel policy and
procedure manuals prepared by Manager, (but excluding standard, off-the-shelf and non-customized
computer software and hardware systems owned by Manager), and all data accumulated through
Manager’s provision of HOA Management Services or Corporate Management Services or through its
business administration, utilization management or quality improvement systems, programs, plans or
procedures, including, in each case, Work Product and Confidential Information (as such terms are
defined below), and shall use commercially reasonable efforts to assist and cooperate with Company
to effect the transition to another administrative company if one is appointed by Company to
succeed Manager, or to the Company, if no administrative company is appointed. Upon termination,
Manager shall deliver to Company all funds, if any, controlled by or in the possession of Manager
as agent for Company; provided, however, that Manager shall be entitled to receive
all compensation, disbursements (including pro rated portions of (i) the HOA Management Services
Fee, (ii) the Corporate Management Services Fee and (iii) the Minimum Annual Bonus, and
reimbursement of operating expenses) and payments which have accrued to Manager or been incurred
by, for or on behalf of Company by Manager under this Agreement.



6. INDEMNIFICATION




     6.1 Indemnification. Each party hereto (the “Indemnifying Party”) shall indemnify and
hold harmless the other party from any and all liability, costs and expenses, including, but not
limited to, reasonable attorney’s fees, caused by or resulting from the gross negligence, willful
misconduct or fraud of any member, officer, director, representative, employee, agent, servant or
contractor of the Indemnifying Party or by any person acting for or on behalf of the



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Indemnifying Party. In addition, the Company shall indemnify and hold Manager harmless from any and all
liability, costs and expenses, including, but not limited to, reasonable attorney’s, accountant’s
and consultant’s fees, caused by, resulting from or relating to (a) any breach by the Company of
Section 4.5 of this Agreement, (b) the transfer of the Transferred Employees from the Company to
Manager, (c) any claim by any Transferred Employee relating to anything occurring during such
Transferred Employee’s employment by the Company, or
(d) Manager acting as the agent of the Company pursuant to the terms of this Agreement, or any action or inaction by Manager taken on behalf of
the Company in good faith pursuant to the terms of this Agreement; provided,
however, that the Company shall have no obligation to indemnify
Manager for any action or inaction attributable to the gross
negligence, willful misconduct or fraud of the Manager or its
employees.




     6.2 Notice of Indemnification Claims. A party seeking indemnification under Section
6.1 shall give the other party notice of such claim in writing as soon as practicable under the
circumstances, but in no event later than thirty (30) days after the party’s actual knowledge of
such claim or action, except that in the event that the party seeking indemnification learns of the
claim when served with a complaint, petition or other document requiring response to a court,
agency or other governmental body, then the party seeking indemnification shall notify the other
party within forty-eight (48) hours of receiving such complaint, petition or document. The notice
shall describe the claim in reasonable detail, and shall indicate the amount (estimated if
necessary) of the claim that has been, or may be, sustained by said party. To the extent that the
Indemnifying Party is or will be actually and materially prejudiced as a result of the failure to
provide timely notice of a claim hereunder, the Indemnifying Party’s liability shall be reduced
proportionate to such prejudice.



     6.3 Procedure. The Indemnifying Party shall have the right to assume the defense of
any claim for which indemnification is sought under Section 6.1 with counsel designated by it and
reasonably satisfactory to the indemnified party (not to be unreasonably withheld, delayed or
conditioned). The Indemnified Party shall be entitled, at its expense, to participate in any
action, suit or proceeding, the defense of which has been assumed by the Indemnifying Party.
Notwithstanding the foregoing, (i) the Indemnifying Party shall be responsible for the reasonable
fees and expenses of counsel for the Indemnified Party to the extent that it shall have failed to
assume the defense of the claim and (ii) the indemnifying party shall not settle or consent to the
entry of any judgment for such claim against the indemnified party without the consent of the
indemnified party, which shall not be unreasonably withheld, conditioned or delayed.



     6.4 Survival. This indemnification shall survive the termination or expiration of
this Agreement.



     6.5 No Consequential Damages. Neither party shall be liable to the other for any
claim for indirect, incidental, special or consequential damage or loss of the other party.



7. DISPUTE RESOLUTION




     7.1 Dispute Resolution. The parties hereto shall, and shall cause their respective
Affiliates to, resolve any dispute, controversy or claim whatsoever between the parties hereto
arising out of or in connection with this Agreement and any transactions contemplated hereby (a



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“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.




     7.2 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 THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT HEREOF.



     7.3 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 AND
FOR CLARK COUNTY, NEVADA AND EACH PARTY TO THIS AGREEMENT HEREBY SUBMITS TO AND ACCEPTS THE
EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINGS.
IN ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL DIRECTED TO IT AT THE ADDRESS AS PROVIDED ON THE SIGNATURE PAGES
HERETO. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE FOR 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.



8. PROPRIETARY/CONFIDENTIAL INFORMATION




     8.1 Work Product. All programs, documentation, policies, concepts, ideas,
innovations, improvements, developments, methods, analyses and designs or other materials or other
works of authorship developed, created or assembled by Manager pursuant to this Agreement,
including but not limited to, all data accumulated through Manager’s provision of HOA Management
Services and its business administration, utilization management and quality improvement systems,
programs, plans or procedures (collectively, the “Work Product”) shall be owned exclusively by the
Company. Manager shall promptly disclose the Work Product to Company, and at Company’s expense,
perform all actions reasonable requested by Company (whether during or after the term hereof) to
establish and confirm such ownership. Company retains all copyright, trade secret, patent,
trademark, trade dress, “know how,” and other intellectual property rights inherent in or arising
from the Work Product. This Section 8.1 does not apply to any programs, documentation, policies
and designs or other materials or other works of authorship developed, created or assembled by
Manager for which no equipment, supplies, facility, employees or Confidential Information of the
Company was used, that does not relate directly to the business of the Company and its
subsidiaries, and that was developed entirely on Manager’s own time and expense, but this Section
8.1 does apply to the extent that any of the



11









 




foregoing (a) relate to (i) the HOAs or (ii) the
Company’s actual or demonstrably anticipated business development plans, or (b) results from any
work performed by Manager for or on behalf of the Company or the HOAs.




     8.2 Access to Company. Manager shall, during the term hereof, be given full access to
Company, its records (other than records relating to Company’s assessment of Manager’s performance,
any claim against Manager, or efforts to retain any replacement to Manager or to perform such work
within the Company, or any records as to which counsel advises there is a claim of legal privilege that may be waived by allowing Manager access to those records), offices and facilities, in order
that Manager may carry out its obligations hereunder.



     8.3 Confidentiality. Manager recognizes that, except as otherwise specifically set
forth in Section 8.1, all business information, documents, and records, are the property of Company
(collectively the “Confidential Information”), and that during and after the term of this
Agreement, Manager shall not, and shall cause its Affiliates not to, remove, use, disclose or
reproduce such Confidential Information except for the limited purpose of fulfilling Manager’s
obligations under this Agreement or as otherwise directed in writing by Company; provided, that the
term Confidential Information shall not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by Manager or its Affiliates in
breach of this Agreement, (ii) is or becomes available to Manager on a non-confidential basis from
a source other than the Company who, to Manager’s knowledge, is not subject to a confidentiality
agreement with, or other obligation of secrecy to, the Company prohibiting such disclosure, or
(iii) was independently developed by Manager without reference to the Confidential Information.
Except as otherwise specifically set forth in Section 8.1, Manager shall not have any rights to
such Confidential Information or records or to copies thereof except as may be required by
applicable law; provided, that Manager may retain one (1) copy of all Confidential
Information disclosed to it for archival purposes, which Confidential Information shall remain
subject to the provisions of this Section 8.3 even if this Agreement is otherwise no longer in
effect. Manager may disclose Confidential Information in response to any valid subpoena or other
valid compulsory process, provided that Manager shall first use its commercially reasonable efforts
(at Company’s sole expense) to make all legitimate, good faith objections, if any, to the
production of such information and, if production is required, shall use its commercially
reasonable efforts (at Company’s sole expense) to seek a protective order limiting dissemination of
such Confidential Information, the contents thereof and the transactions contemplated thereby
solely to persons having a need to know for purposes of the proceeding in which the production is
sought. In the event that Manager is requested or becomes legally compelled (by oral questions,
interrogatories, requests for information or documents, subpoena, civil investigative demand or
similar process) to make any disclosure which is prohibited or otherwise constrained by this
Section 8.3, Manager shall (i) provide Company with prompt notice of such request(s) so that
Company may seek an appropriate protective order or other appropriate remedy (at Company’s sole
expense) and/or waive Manager’s compliance with the provisions of this Section 8.3, and (ii)
cooperate with Company in its efforts to decline, resist or narrow such requests. Manager also
acknowledges that any damages for breach of this Section 8.3 may be incalculable and an
insufficient remedy. Accordingly, Manager agrees that in the event of any breach of this Section
8.3, Company shall be entitled to equitable relief, including injunctive relief and specific
performance and without the necessity of posting any bond.




12












 





9. MISCELLANEOUS





9.1 Assignment.




     9.1.1 This Agreement shall be binding upon, and shall inure to the benefit of, the
parties and their respective successors and permitted assigns. Neither party hereto may
assign this Agreement or any rights hereunder, nor may either party delegate any of its
duties to be performed hereunder, without the prior written consent of the other party
hereto, provided the foregoing shall not be deemed to prevent subcontracting by Manager, as
permitted by this Agreement, in which the Manager remains fully responsible for the
performance of the subcontracted services.




     9.1.2 For purposes of this Agreement, a Change in Control of Manager shall be deemed to
be an assignment and shall require the prior written consent of the Company authorized by
its Board, which consent may be granted or withheld in the sole discretion of such Board.
For purposes hereof, a “Change in Control of Manager” shall be deemed to occur upon any
transfer (whether with or without consideration) or upon entering into any arrangement, as a
result of which transfer or arrangement Stephen J. Cloobeck (or his estate) and/or David F.
Palmer would, collectively, cease to have the sole right and power to dispose of, and to
vote, a majority of the outstanding voting equity interests of Manager.



     9.2 Confidentiality of Agreement. The terms of this Agreement shall be maintained in
confidence by both parties except where disclosure is required by law or in performance hereof.



     9.3 Amendment. This Agreement may only be amended or modified by a written instrument
executed by both parties. Subject first to the severability provisions set forth in Section 9.8,
this Agreement shall be subject to immediate review and amendment if required by any change in
state or federal regulations, including regulations pertaining to state, federal or other
third-party reimbursement programs; provided, however, that any such amendment
shall be subject to the approval of the parties hereto.



     9.4 Headings. The headings of the various sections of this Agreement are for
convenience of reference only, and shall not modify, define, limit or expand the express provisions
of this Agreement.



     9.5 Entire Agreement. This Agreement represents the entire agreement between the
parties with respect to the subject matter hereof and any representation, promise or condition in
connection therewith not incorporated herein shall not be binding upon either party and supersedes
any prior agreement between the parties with respect to such subject matter.



     9.6 Counterparts. This Agreement may be executed in any number of counterparts, each
of which, including facsimiles thereof, shall be deemed to be an original, and each such
counterpart shall together constitute the same agreement.



     9.7 Notices. All notices or other communications pursuant to this Agreement shall be
in writing and shall be deemed to have been duly given, if by hand delivery, upon receipt



13









 




thereof; by telefax upon confirmation of transmission; or if mailed by certified or registered
mail, postage prepaid, three business days after deposit in the United States mail; or if sent by
nationally recognized courier service, delivery costs prepaid, on the business day following the
date of deposit at the courier service, and in any event, to be addressed to either party at the
addresses provided in the signature blocks below, or at such other address as may hereafter be
provided by proper notice. A courtesy copy of any notice required hereunder shall also be sent to
each party’s counsel at such address as may be requested, but failure to do so shall not in any way
affect the rights, obligations, and liabilities of the parties hereto.




     9.8 Effect of Invalidity. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the effective period of this
Agreement, such provision shall be fully severable. This Agreement shall be construed and enforced
as if such illegal, invalid or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by its severance from
this Agreement. Furthermore, in lieu of each illegal, invalid or unenforceable provision there
shall be added automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Each party waives any and all claims or contests it has, based on federal or state laws proposed
or in effect as of the Effective Date, which would or could allow the party to challenge the
existence, validity or enforceability of this Agreement.



     9.9 Applicable Law. The parties agree that this Agreement shall be construed
and enforced in accordance with the laws of the State of Nevada without regard to principles of
conflicts of laws.



     9.10 Equitable Relief. Each party acknowledges and agrees that, notwithstanding
anything contained in Section 7 to the contrary, the remedies at law of the other parties for any
breach of this Agreement would be inadequate and agrees that in addition to any remedy at law which
it may have, the other party may be granted temporary, preliminary and permanent injunctive relief
in any proceeding which may be brought to enforce such provisions, without the necessity of posting
a bond as security or proof of actual damage. Each party further acknowledges and agrees that any
proceeding brought pursuant to this Section 9.10 may be adjudicated in a state or federal court of
competent jurisdiction located in Clark County, Nevada, and that the court shall have all the
necessary authority to issue the injunctive relief described herein.




9.11 Other Activities of Manager; Investment Opportunities.




     9.11.1 The Company acknowledges and agrees that, except as otherwise set forth in
Section 2.3 hereof, neither Manager nor any of its employees, officers, directors,
Affiliates or associates shall be obligated to devote its, his or her full time and business
efforts to the duties of Manager specified in this Agreement, but only so much of such time
and efforts as may be necessary or appropriate to meet the standard of performance set forth
in this Agreement. The Company further acknowledges and agrees that Manager and its
Affiliates and associates are or may be engaged in the business of investing in, acquiring
and/or managing businesses for their own respective accounts and



14









 




for the account of other unaffiliated parties and that no aspect or element of these
activities will be deemed to be engaged in for the benefit of the Company nor to constitute
a conflict of interest or breach of any duty hereunder.





9.11.2 Notwithstanding anything in Section 9.11.1 to the contrary:




     (a) During the term of this Agreement, neither Manager nor any of Manager’s
Affiliates shall, either directly or indirectly, personally or through the use of
agents, engage in or invest in any activity or business which is in competition with
the Principal Line of Business conducted by the Company or any of its subsidiaries
anywhere in the world; provided that the foregoing shall not prohibit a purely
passive, minority investment in any Person. While the provisions contained in this
Agreement are considered by the parties to be reasonable in all circumstances, it is
recognized that provisions of this Section 9.11.2, including without limitation,
remedies and geographic scope, may fail for technical reasons and, accordingly, it
is hereby agreed and declared that if any one or more of such provisions shall,
either by itself or themselves or taken with others, be adjudged to be invalid as
exceeding what is reasonable in all circumstances for the protection of the
interests of the Company, but would be valid if any particular restriction or
provisions were deleted or restricted or limited in a particular manner or if the
period or area thereof were reduced or curtailed, then the said provisions shall
apply with such deletion, restriction, limitation, reduction, curtailment, or
modification as may be necessary to make them valid and effective. Notwithstanding
anything to the contrary contained herein, the terms of this Section 9.11.2 shall
not apply to any activity or business conducted by Manager or any of Manager’s
Affiliates so long as the Board of Directors of the Company has approved, by
unanimous vote of all of the members of such Board, such activity or business.
Manager represents and warrants to the Company that as of the date hereof neither
Manager nor any of Manager’s Affiliates, either directly or indirectly, personally
or through the use of agents, engage in or invest in any activity or business which
is in competition with the Principal Line of Business anywhere in the world, except
for (i) purely passive, minority investments in any Person and (ii) any investment
by Manager or any of its Affiliates in any Person, or the engagement or performance
of services by Manager or any of its Affiliates on behalf of any Person, for which
the Company performs one or more management services pursuant to customary
management services agreements.




     (b) Manager agrees to submit (and to cause its Affiliates to submit) to the
Company all business, commercial and investment opportunities presented to Manager
or its Affiliates which relate to the Principal Line of Business and, unless
approved by the Company in writing, Manager shall not (and shall cause its
Affiliates to not) pursue, directly or indirectly, any such opportunities on its or
its Affiliate’s own behalf. Nothing in this Section 9.11.2 shall be deemed to
create any affirmative duty to seek out such opportunities nor to obligate any
Person to violate any law, breach any contractual commitment or commit any tort.



15









 






9.11.3 For purposes hereof, the following terms be defined as follows:




     (a) “Affiliate” means a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, a
specified Person. For the purpose of this definition, the term “control” shall mean
the possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.




     (b) “Person” means any individual, any general partnership, government entity,
limited partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative, association or similar organization, and the heirs,
executors, administrators, legal representatives, successors, and assigns of such
Person where the context so requires.




     (c) “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 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.




     (d) “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.



16









 





     9.12 Approval by the Company. As used in this Agreement, the phrases “the approval of
the Company” and “discretion of the Company,” or similar words, shall mean the approval or
discretion of the Company’s Board of Directors.



     9.13 Section 409A. The provisions of this Agreement will be construed in favor of,
and administered in accordance with, amount due and payable hereunder either being exempt from or
complying with any applicable requirements of Section 409A as necessary to prevent the imposition
of a the adverse consequences contemplated by Section 409A.



     9.14 Expenses. The Company shall be responsible for and shall pay all costs and
expenses incurred or to be incurred by the Company and Manager in negotiating and preparing this
Agreement.



     9.15 Third Party Beneficiaries. The Company and Manager hereby agree that each
employee and contractor of the Company shall be treated as a third party beneficiary of the express
provisions of this Agreement, but such employees and contractors shall not have any implied rights
by virtue of the provisions of this Agreement and shall not, under any circumstances, be considered
or deemed employees of the Company for any purpose.



[Signature page follows]





17












 





IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
by their duly authorized representatives effective as of the Effective Date hereof.






	 	 	 	 	 
	 	DIAMOND RESORTS CORPORATION




10600 West Charleston Boulevard

Las Vegas, NV 89135

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


HOSPITALITY MANAGEMENT AND

CONSULTING SERVICE, L.L.C.




3745 Las Vegas Boulevard South

Las Vegas, NV 89109	 
	 
	 	 	 	 
	 	By:  	/s/ Stephen J. Cloobeck	 
	 
	 	 	 	 
	 	Name:  	Stephen J. Cloobeck	 
	 
	 	 	 	 
	 	Its: 	Managing Member


  









 





Schedule A

December 31, 2010




Employees (All Employees are Nevada residents)

Executive Vice President — HR (W-2)

Vice President — HR (W-2)

Vice President of HOA Finance (W-2)

Finance Manager HOA (W-2)

Financial Analyst (W-2)

Accounting Manager — 4 (W-2)

Accounting Supervisor — 2 (W-2)

Senior Staff Accountant — 2 (W-2)

Staff Accountant — 11 (W-2)

Accounting Clerk (W-2)

Special Projects Advisor (W-2)

Vice President of Association Administration (W-2)

Vice President of HOA Management (W-2)

Association Coordinator (W-2)

Western Association Administrator (W-2)

Regional Director of Operations (W-2)

Senior VP HOA Management (W-2)

Engineer (W-2)

Chief Fire Inspector (W-2)

Corporate OSHA Compliance Officer (W-2)

Office Coordinator (W-2)




Contractors

Chairman & CEO (1099)

President & CFO (1099)




	 	 	 	 	 	 	 	 	 
	 	 	Annual Fee	 	 	Minimum Annual Bonus	 
	HOA Management Services
	 	 	8,709,845	 	 	 	4,624,169	 
	Corporate Management Services
	 	 	1,491,267	 	 	 	791,733	 
	Total
	 	 	10,201,112	 	 	 	5,415,902	 





Potential Severance Obligations




President & CFO — 2x then current base salary

Executive Vice President, Global Human Resources — 1x then current base salary