DIAMOND RESORTS CORPORATION REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
EXECUTION COPY
$425,000,000
DIAMOND RESORTS CORPORATION
12.00% Senior Secured Notes due 2018
August 13, 2010
CREDIT SUISSE SECURITIES (USA) LLC,
BANC OF AMERICA SECURITIES LLC, AND
GUGGENHEIM SECURITIES, LLC
As the Representatives of the Initial Purchasers,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
BANC OF AMERICA SECURITIES LLC, AND
GUGGENHEIM SECURITIES, LLC
As the Representatives of the Initial Purchasers,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
Diamond Resorts Corporation, a Maryland corporation (the “Issuer”), proposes to issue and
sell to Credit Suisse Securities (USA) LLC, Banc of America Securities LLC and Guggenheim
Securities, LLC (collectively, the “Initial Purchasers”), upon the terms set forth in a purchase
agreement dated August 10, 2010 (the “Purchase Agreement”), $425,000,000 aggregate principal
amount of its 12.00% Senior Secured Notes due 2018 (the “Initial Securities”) to be
unconditionally guaranteed (the “Guarantees”) by each of the guarantors listed in Schedule I
hereto (the “Guarantors” and together with the Issuer, the “Company”). The Initial Securities
will be issued pursuant to an Indenture, dated as of the date hereof (the “Indenture”), among
the Issuer, the Guarantors named therein and ▇▇▇▇▇ Fargo Bank, National Association (the
“Trustee”). As an inducement to the Initial Purchasers, the Company agrees with the Initial
Purchasers, for the benefit of the holders of the Initial Securities (including, without
limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private
Exchange Securities (as defined below) (collectively the “Holders”), as follows:
1. Registered
Exchange Offer. The Company shall (a) within 210 days after the
date of original issue of the Initial Securities (the “Issue Date”), at its own cost, prepare
and file with the Securities and Exchange Commission (the “Commission”) a registration
statement (the “Exchange Offer Registration Statement”) on an appropriate form under the
Securities Act of 1933, as amended (the “Securities Act”), with respect to a proposed offer
(the “Registered Exchange Offer”) to the Holders of Initial Securities who are not prohibited
by any law or policy of the Commission from participating in the Registered Exchange Offer to
issue and deliver to such Holders as soon as practicable after the effectiveness of the
Exchange Offer Registration Statement, in exchange for the Initial Securities, a like aggregate
principal amount of debt securities (the “Exchange Securities”) of the Issuer issued under the
Indenture and identical in all material respects to the Initial Securities (except for the
transfer restrictions relating to the Initial Securities and the provisions relating to the
matters described in Section 6 hereof) that would be registered under the Securities Act; (b)
use its reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 330 days after the Issue Date; and (c) keep
the Registered Exchange Offer open for not less than 20 days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders
of the Initial Securities (such period being called the “Exchange Offer Registration Period”).
If the Company effects the Registered Exchange Offer, the Company will be entitled (subject
to applicable law) to close the Registered Exchange Offer 20 days after the commencement thereof
provided that the Company has accepted all the Initial Securities theretofore validly tendered
in accordance with the terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer Registration
Statement, the Company shall as soon as practicable commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder of Transfer
Restricted Securities (as defined in Section 6 below) electing to exchange the Initial
Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company
within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary
course of such Holder’s business and has no arrangements or understandings with any person to
participate in the distribution (within the meaning of the Securities Act) of the Exchange
Securities and is not prohibited by any law or policy of the Commission from participating in
the Registered Exchange Offer) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the Commission’s
staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom,
(i) each Holder which is a broker-dealer electing to exchange Initial Securities,
acquired for its own account as a result of market-making activities or other trading
activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B
hereto in the “Exchange Offer Procedures” (or other appropriate) section of such prospectus and
the “Purpose of the Exchange Offer” (or other appropriate) section of such prospectus and (c)
Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a
sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities
acquired in exchange for Initial Securities constituting any portion of an unsold allotment is
required to deliver a prospectus containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective and amend and supplement the prospectus contained therein in order to
permit such prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for 180 days following the effective date of the
Exchange Offer Registration Statement or such shorter period of time as such persons must
comply with such requirements in order to resell the Exchange Securities; provided, however,
that (i) in the case where such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of
180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all
Exchange Securities held by them (unless such period is extended pursuant to Section 3(j)
below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto
available to any requesting broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds
Initial Securities acquired by it as part of its initial distribution, the Company,
simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange
Offer, shall issue and deliver to such Initial Purchaser upon the written request of such
Initial Purchaser, in exchange (the “Private Exchange”) for the
Initial Securities held by such Initial Purchaser, a like principal amount of debt
securities of the Issuer issued under the Indenture and identical in all material respects
(including the existence of restrictions on transfer under the Securities Act and the securities
laws of the several states of the United States, but excluding provisions relating to the
matters described in Section 6 hereof) to the Initial Securities (the “Private Exchange
Securities”). The Initial Securities, the Exchange Securities and the Private Exchange
Securities are herein collectively called the “Securities”.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail or deliver to each Holder of Initial Securities a copy of the prospectus
forming part of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 days (or longer, if
required by applicable law) after the date notice thereof is mailed or delivered to such
Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any time prior to the
close of business, New York time, on the last business day on which the Registered
Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as reasonably practicable after the close of the Registered Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted
for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the
Initial Securities, Exchange Securities or Private Exchange Securities, as the case may
be, equal in principal amount to the Initial Securities of such Holder so accepted for
exchange.
Each Holder participating in the Registered Exchange Offer shall be required to represent
to the Company that at the time of the consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder has no arrangements or understanding with any person to participate
in the distribution of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent
applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act) of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities
for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any prospectus forming part thereof
and any supplement thereto complies in all material respects with the Securities Act and the
rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part of any
Exchange Offer Registration Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or in applicable
interpretations thereof by the staff of the Commission, the Company is not permitted to effect
a Registered Exchange Offer as contemplated by Section I hereof, (ii) the Registered Exchange
Offer is not consummated within 365 days of the Issue Date, (iii) any Initial Purchaser so
requests in writing with respect to the Initial Securities (or the Private Exchange Securities)
constituting Transfer Restricted Securities that are not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer as a result of being held by such Initial Purchaser
and held by it following consummation of the Registered Exchange Offer or (iv) any Holder of
Transfer Restricted Securities is prohibited by applicable law or Commission policy from
participating in the Registered Exchange Offer or may not resell the Exchange Notes acquired by
it in the Registered Exchange Offer to the public without delivery of a prospectus, the Company
shall take the following actions:
(a) The Company shall, at its cost, within 30 days after the time its obligation to
file an Exchange Offer Registration Statement arises, file with the Commission and
thereafter shall use its reasonable best efforts to cause to be declared effective on or
prior to the 90th day after the date on which the Shelf Registration Statement (as
defined below) is required to be filed (unless it becomes effective automatically upon
filing) a registration statement (the “Shelf Registration Statement” and, together with
the Exchange Offer Registration Statement, a “Registration Statement”) on an
appropriate form under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement
and Rule 415
under the Securities Act (hereinafter, the “Shelf Registration”); provided, however,
that no Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement applicable to such
Holder.
(b) The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities until the
earlier of (1) three years from the Issue Date and (2) the date on which all Securities
registered thereunder are disposed of in accordance therewith (or for such longer period
if extended pursuant to Section 3(j) below) or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer Transfer Restricted Securities. The Company shall
be deemed not to have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless such action is required by
applicable law; provided that the Company shall not be so deemed unless such action
results in a Registration Default (after giving effect to Section 6(b) hereof).
(c) Notwithstanding any other provisions of this Agreement to the contrary, the
Company shall cause the Shelf Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and regulations of the
Commission thereunder and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration contemplated by
Section 2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included therein and, in the
event that an Initial Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registered Exchange Offer or the Shelf
Registration, the Company shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include the information set forth in Annex A hereto on the
cover, in Annex B hereto in the “Exchange Offer Procedures” (or other appropriate)
section of such prospectus and the “Purpose of the Exchange Offer” (or other
appropriate) section of such prospectus and in Annex C hereto in the “Plan of
Distribution” section of the prospectus forming a part of the Exchange Offer
Registration Statement and include the information set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered Exchange Offer, in each case
subject to any change, addition, deletion or moving of such disclosure requested by the
staff of the Commission; (iii) if reasonably requested by an Initial Purchaser, include
the information required by Items 507 or 508 of Regulation S-K under the Securities Act,
as applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable
to the Initial Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to the potential
“underwriter” status of any broker-dealer that is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”),
of Exchange Securities received by such broker-dealer in the Registered Exchange Offer
(a “Participating Broker-Dealer”), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or policies, in the
reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be
in-house counsel), represent the prevailing views of the staff of the Commission; and
(v) in the case of a Shelf Registration Statement, include in the prospectus included in
the Shelf Registration Statement (or, if permitted by Commission Rule 430B(b), in a
prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f))
that is delivered to any Holder
pursuant
to Sections 3(d) and (f), the names of the Holders who propose to
sell Securities pursuant to the Shelf Registration Statement, as selling security
holders.
(b) The Company shall give written notice to the Initial Purchasers, the Holders
and any Participating Broker-Dealer from whom the Company has received prior written
notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer
(which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been filed
with the Commission and when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, of the issuance by the Commission of a notification of
objection to the use of the form on which the Registration Statement has been
filed and of the happening of any event that causes the Company to become an
“ineligible issuer,” as defined in Commission Rule 405;
(iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the Company to make changes
in the Registration Statement or the prospectus in order that the Registration
Statement or the prospectus does not contain an untrue statement of a material
fact nor omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the prospectus, in light of the circumstances under which they were made) not
misleading.
(c) The Company shall make every reasonable effort to obtain the withdrawal, at the
earliest possible time, of any order suspending the effectiveness of the Registration
Statement.
(d) If not otherwise available on the Commission’s Electronic Data Gathering,
Analysis and Retrieval (“▇▇▇▇▇”) System or similar system, upon the written request of a
Holder of Securities included within the coverage of the Shelf Registration, the Company
shall furnish to each such Holder, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment or supplement thereto, including
financial statements and schedules, and, if the Holder so requests in writing, all
exhibits thereto (including those, if any, incorporated by reference). The Company shall
not, without the prior consent of the Initial Purchasers, make any offer relating to the
Securities that would constitute a “free writing prospectus,” as defined in Commission
Rule 405.
(e) If not otherwise available on the Commission’s ▇▇▇▇▇ System or similar system,
upon the written request of any Holder, the Company shall deliver to each Exchanging
Dealer and
each Initial Purchaser, and to any other Holder who so requests in writing, without
charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules, and, if
any Initial Purchaser or any such Holder requests, all exhibits thereto (including those
incorporated by reference).
(f) The Company shall, during the period of effectiveness of the Shelf
Registration, deliver to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any amendment
or supplement thereto as such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders in connection with the
offer and sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The Company consents, subject
to the provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by any Initial Purchaser, if necessary, any Participating
Broker-Dealer and such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by the prospectus, or any amendment or supplement thereto, included
in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any Registration
Statement, the Company shall use its reasonable best efforts to register or qualify or
cooperate with the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the Securities for offer
and sale under the securities or “blue sky” laws of such states of the United States as
any Holder reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any jurisdiction where
it is not then so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders to facilitate the timely
preparation and delivery of global certificates representing the Securities to be sold
pursuant to any Registration Statement, free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a reasonable
period of time prior to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company shall promptly prepare and
file a post-effective amendment to the Registration Statement or a supplement to the
related prospectus and any other required document so that, as thereafter delivered to
Holders or purchasers of Securities, the prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company shall also promptly provide
notice to the Initial Purchasers, the Holders and any known Participating Broker-Dealer
of its determination (which determination shall have been made by the Company’s board of
directors for a bona fide business purpose) to suspend the availability of a
Registration Statement and the related prospectus because the continued effectiveness
and use of such Registration Statement and prospectus included therein would require the
disclosure of confidential information or interfere with any financing, acquisition,
corporate reorganization or other material transaction or development involving the
Issuer or any of its consolidated subsidiaries (it being understood that such notice may
disclose only the existence of such determination and need not disclose the nature of
the basis therefore, which may be kept confidential for such period as may reasonably be
required for bona fide business reasons). If the Company notifies the Initial
Purchasers, the Holders and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above or of its determination pursuant to
the second sentence of this Section 3(j) to suspend the use of the prospectus until the
requisite changes to the prospectus have been made (each, a “Suspension Notice”), then
the Initial Purchasers, the Holders and any such Participating Broker-Dealers shall
suspend use of such prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section I above shall each be extended by the
number of days from and including the date of the giving of the Suspension Notice to and
including the date when the Initial Purchasers, the Holders and any known Participating
Broker-Dealer shall have received such amended or supplemented prospectus or notice that
the use of such prospectus may be resumed, as applicable, pursuant to this Section 3(j);
provided that, with respect to an Exchange Offer Registration Statement, the Company
shall not give a Determination Suspension Notice (as defined in Section 6(b) hereof)
during the Exchange Offer Registration Period. During the period during which the
Company is required to maintain an effective Shelf Registration Statement pursuant to
this Agreement, the Company will prior to the three-year expiration of that Shelf
Registration Statement file, and use its reasonable best efforts to cause to be declared
effective (unless it becomes effective automatically upon filing) within a period that
avoids any interruption in the ability of Holders of Securities covered by the expiring
Shelf Registration Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed the “Shelf Registration
Statement” for purposes of this Agreement.
(k) Not later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, and provide the applicable
trustee with printed global certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, in a form eligible
for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Registered Exchange
Offer or the Shelf Registration, as applicable, and will make generally available to its
security holders (or otherwise provide in accordance with
Section 11(a) of the
Securities Act and Rule 158 thereunder) an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Issuer’s first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended, in a timely manner and containing such changes, if any, as
shall be
necessary for such qualification. In the event that such qualification would
require the appointment of a new trustee under the Indenture, the Company shall appoint
a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold pursuant to the
Shelf Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form) and take all such other action,
if any, as any Holder shall reasonably request in order to facilitate the disposition of
the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, subject to customary confidentiality
agreements being executed by all parties to review information, the Company shall (i)
make reasonably available for inspection by the Holders, any underwriter participating
in any disposition pursuant to the Shelf Registration Statement
and any attorney, accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company’s officers, directors and employees
to supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable such persons to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities
Act; provided, however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers by you and on behalf of the other
parties, by one counsel designated by and on behalf of such other parties as described
in Section 4 hereof.
(q) In the case of any Shelf Registration, the Company, if requested by any Holder
of Securities covered thereby, shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to such Holders
and the managing underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement (it being agreed that
the matters to be covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its subsidiaries; the qualification
of the Company and its subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery of the relevant agreement of the type referred
to in Section 3(o) hereof; the due authorization, execution, authentication
and issuance, and the validity and enforceability, of the applicable Securities; the
absence of material legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the offering and sale of the
applicable Securities or any agreement of the type referred to in
Section 3(o)
hereof; the compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with the requirements
of the Securities Act and the Trust Indenture Act, respectively; and (A) as of the date
of the opinion and as of the effective date of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein, as then amended or
supplemented, and from any documents
incorporated by reference therein and (B) as of an applicable time identified by
such Holders or managing underwriters, the absence from such prospectus taken together
with any other documents identified by such Holders or managing underwriters, in the
case of (A) and (B), of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such incorporated documents, in
the light of the circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act); (ii) its officers to execute and deliver all
customary documents and certificates and updates thereof reasonably requested by any
underwriters of the applicable Securities and (iii) its independent public accountants
and the independent public accountants with respect to any other entity for which
financial information is provided in the Shelf Registration Statement to provide to the
selling Holders of the applicable Securities and any underwriter therefor a comfort
letter in customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if reasonably requested
by any Initial Purchaser or any known Participating Broker-Dealer, the Company shall
cause (i) its counsel to deliver to such Initial Purchaser or such Participating
Broker-Dealer a signed opinion in the form set forth in Section 7(c) of the Purchase
Agreement with such changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial information is
provided in the Registration Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section 7(a) of the Purchase
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other person as
directed by the Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall ▇▇▇▇, or cause to be marked, on the
Initial Securities so exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities, as the case may
be; in no event shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial Securities, confirm
such ratings will apply to the Securities covered by a
Registration Statement or (b) if the Initial Securities were not previously rated,
cause the Securities covered by a Registration Statement to be rated with the
appropriate rating agencies, if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement, or by the
managing underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting syndicate or
selling group or “assist in the distribution” (within the meaning of the Conduct Rules
(the “Rules”) of the Financial Industry Regulatory Authority, Inc.) thereof, whether as
a Holder of such Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company will use its reasonable best
efforts to assist such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a “qualified independent underwriter” (as
defined in Rule 2720) to participate in the preparation of the Registration Statement
relating to such Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales agent, to recommend
the yield of such Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its reasonable best efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses incurred
in connection with the performance of its obligations under
Sections 1 through 3 hereof
(including the reasonable fees and expenses, if any, of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for
the Initial Purchasers, incurred in connection with the Registered Exchange Offer), whether or
not the Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in
the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered
thereby for the reasonable fees and disbursements of one firm of counsel designated by the
Holders of a majority in aggregate principal amount of the Initial Securities covered thereby
to act as counsel for the Holders of the Initial Securities in connection therewith.
5. Indemnification. (a) The Issuer and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Holder, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer within the meaning
of the Securities Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such
controlling persons are referred to collectively as the “Indemnified Parties”) from and against
any losses, claims, damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus or “issuer free writing
prospectus,” as defined in Commission Rule 433 (“Issuer FWP”), relating to a Shelf Registration,
or arise out of, or are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any reasonable legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Issuer and the Guarantors shall not be liable
in any such case to an Indemnified Party to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf
Registration in reliance upon and in conformity with written information pertaining to such
Indemnified Party and furnished to the Company by or on behalf of such Indemnified Party
specifically for inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure
to the benefit of any Holder or Participating Broker-Dealer from whom the person asserting any
such losses, claims, damages or liabilities purchased the Securities concerned, to the extent
that a prospectus relating to such Securities was required to be delivered (including through
satisfaction of the conditions of
Commission Rule 172) by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage or liability of
such Holder or Participating Broker-Dealer results from the fact that there was not conveyed to
such person, at or prior to the time of the sale of such Securities to such person, an amended
or supplemented prospectus or, if permitted by Section 3(d), an Issuer FWP correcting such
untrue statement or omission or alleged untrue statement or omission if the Company had
previously furnished copies thereof to such
Holder or Participating Broker-Dealer; provided
further, however, that this indemnity
agreement will be in addition to any liability which the Issuer or the Guarantors may otherwise
have to such Indemnified Party. The Issuer and the Guarantors shall also, jointly and severally,
indemnify underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the same extent as
provided above with respect to the indemnification of the Holders if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold harmless the Issuer and
the Guarantors and each person, if any, who controls the Issuer and the Guarantors within the
meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages
or liabilities or any actions in respect thereof to which the Issuer, the Guarantors or any such
controlling person may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any preliminary
prospectus or Issuer FWP relating to a Shelf Registration, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make the statements
therein not misleading but in each case only to the extent that the untrue statement or omission
or alleged untrue statement or omission was made in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Issuer and the Guarantors for any legal
or other expenses reasonably incurred by the Issuer, the Guarantors or any such controlling
person in connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in addition to any liability which
such Holder may otherwise have to the Issuer, the Guarantors or any of their respective
controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; provided that the failure to notify the indemnifying party shall not relieve the indemnifying party from
any liability that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; provided further that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under this Section 5 for
any legal or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in
respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the indemnified party
on the other from the exchange of the Securities, pursuant to the Registered Exchange Offer, or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders shall not be required to
contribute any amount in excess of the amount by which the net proceeds received by such Holders
from the sale of the Securities pursuant to a Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls such indemnified party within
the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution
as such indemnified party, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act shall have the same rights to contribution as the
Company.
(e) The agreements contained in this Section 5 shall survive the sale of the
Securities pursuant to a Registration Statement and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any investigation made by or
on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional interest (the
“Additional Interest”) with respect to the Initial Securities or the Exchange Securities, as
applicable, shall be assessed as follows if any of the following events occur (each such event
in clauses (i) through (vi) below a “Registration Default”):
(i) if the Company fails to file an Exchange Offer Registration Statement with the
Commission on or prior to the 210th day after the Issue Date,
(ii) if the Exchange Offer Registration Statement has been filed, but is not declared
effective by the Commission on or prior to the 330th day after the Issue Date,
(iii) if the Registered Exchange Offer is not consummated on or before the earlier of
(1) the 30th business day after the Exchange Offer Registration Statement is declared
effective or (2) the 365th day after the Issue Date,
(iv) if obligated to file the Shelf Registration Statement pursuant to the provisions
of Section 2 hereof, the Company fails to file the Shelf Registration Statement with the
Commission on or prior to the 30th day (the “Shelf Filing Date”) after the date on
which the obligation to file a Shelf Registration Statement arises,
(v) if obligated to file a Shelf Registration Statement pursuant to the provisions of
Section 2 hereof, the Shelf Registration Statement is not declared effective on or prior to
the 90th day after the Shelf Filing Date, or
(vi) if after the Registration Statement is declared (or becomes automatically)
effective, such Registration Statement thereafter ceases to be (A) effective or (B) usable
(except, in the latter case, as permitted in paragraph (b) of this Section 6) in connection
with resales of Transfer Restricted Securities during the periods specified herein because
either (1) any event occurs as a result of which the related prospectus forming part of such
Registration Statement would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, (2) it shall be necessary to amend such
Registration Statement or supplement the related prospectus to comply with the Securities Act
or the Exchange Act or the respective rules thereunder, or (3) such Registration Statement is
a Shelf Registration Statement that has expired before a replacement Shelf Registration
Statement has become effective.
Additional Interest shall accrue on the Initial Securities or the Exchange Securities, as
applicable, over and above the interest set forth in the title of the Securities from and
including the date on which any Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.25% per annum for the
first 90-day period immediately following the occurrence of a Registration Default, and such
rate will increase by an additional 0.25% per annum with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum additional interest
rate of 1.00% per annum. The Company shall be required to pay Additional Interest with respect
to only one Registration Default at a time, regardless of how many Registration Defaults have
occurred and are continuing.
(b) A Registration Default referred to in Section 6(a)(vi)(B) hereof shall be deemed not
to have occurred and be continuing in relation to a Shelf Registration Statement or the related
prospectus if (A) (i) such Registration Default has occurred solely as a result of
(x) the filing of a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events with respect to the Company
that would need to be described in such Shelf Registration Statement or the related prospectus
and (ii) in the case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement such Shelf Registration Statement and related prospectus to describe such
events or (B) the Company has
provided a Suspension Notice pursuant to Section 3(j) hereof on the basis of a
determination pursuant to the second sentence of such Section 3(j) with respect to such Shelf
Registration Statement or related
prospectus (any such Suspension Notice a “Determination Suspension Notice”), so long as (x)
the Company does not suspend such Shelf Registration Statement pursuant to a Determination
Suspension Notice more than twice in any period of 12 consecutive months, (y) no such suspension
exceeds 60 days and (z) such suspensions do not exceed 90 days in the aggregate in any
consecutive twelve month period; provided, however, that, in the case of clause (A), if such
Registration Default occurs for a continuous period in excess of 45 days, Additional Interest
shall be payable in accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to any of clauses (i) through (vi) of
Section 6(a) above will be payable in cash on the regular interest payment dates with respect to
the Initial Securities. The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the Initial Securities or the
Exchange Securities, as applicable, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months) and the denominator of which is
360.
(d) “Transfer Restricted Securities” means each Security until (i) the date on which such
Security has been exchanged by a person other than a broker-dealer for a freely transferable
Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security,
the date on which such Exchange Security is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the earliest date that is no less than two years after the Issue
Date and on which such Initial Security (except for Initial Securities held by an affiliate of
the Company) is no longer subject to any restrictions on transfer under the Securities Act,
including those pursuant to Rule 144 thereunder.
7. Copies of this Agreement. The Company will provide a copy of this Agreement to
prospective purchasers of Initial Securities identified to the Company by the Initial
Purchasers upon written request.
8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer the offering (“Managing
Underwriters”) will be selected by the Holders of a majority in aggregate principal amount of
such Transfer Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person’s Transfer Restricted Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required under the terms of
such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions hereof may not be
given, except by the Company and the written consent of the Holders of a majority in principal
amount of the Securities affected by such amendment, modification, supplement, waiver or
consents.
(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, first-class mail, facsimile transmission or
air courier which guarantees overnight delivery:
(1) if to a Holder, at the most current address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attention: Transactions Advisory Group
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Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
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Worldwide Plaza
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(3) if to the Company, at its address as follows:
Diamond Resorts Corporation
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Attention: Chief Financial Officer
with a copy to:
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All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; three business days after being deposited in the
mail, postage prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile machine
operator, if sent by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date hereof, entered
into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the Company and its
successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed (including by facsimile
or electronic image scan) shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(h) Severability. If anyone or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder, Securities held by
the Company or its affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the
execution and delivery of this Agreement, the Company (i) acknowledges that it has, by separate
written instrument, irrevocably designated and appointed the Issuer (and any successor entity),
as its authorized agent upon which process may be served in any suit or proceeding arising out
of or relating to this Agreement that may be instituted in any federal or state court in the
State of New York or brought under federal or state securities laws, and acknowledges that the
Issuer has accepted such designation, (ii) submits to the nonexclusive jurisdiction of any such
court in any such suit or proceeding and (iii) agrees that service of process upon the Issuer
and written notice of said service to the Company shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further agrees to take
any and all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of the Issuer in
full force and effect so long as any of the Securities shall be outstanding. To the extent that
the Company may acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably
waives such immunity in respect of this Agreement, to the fullest extent permitted by law.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the several Initial
Purchasers, the Issuer and the Guarantors in accordance with its terms.
| Very truly yours, | ||||||
| Diamond Resorts Corporation | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Title: Executive Vice President | ||||||
| Diamond Resorts Parent, LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Title: Executive Vice President | ||||||
| Diamond Resorts Holdings, LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Title: Executive Vice President | ||||||
| Each of the Guarantors listed on Schedule I hereto | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Title: Executive Vice President | ||||||
[Signature Page to Registration Rights Agreement]
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
| Credit Suisse Securities (USA) LLC | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Title: DIRECTOR | ||||||
| Acting on behalf of itself | ||||||
| and as a Representative | ||||||
| of the Initial Purchasers | ||||||
| Banc of America Securities LLC | ||||||
| By: | /s/ [ILLEGIBLE]
|
|||||
| Title: [ILLEGIBLE] | ||||||
| Acting on behalf of itself | ||||||
| and as a Representative | ||||||
| of the Initial Purchasers | ||||||
| Guggenheim Securities, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
| Title: COO | ||||||
| Acting on behalf of itself | ||||||
| and as a Representative | ||||||
| of the Initial Purchasers | ||||||
[Signature Page to Registration Rights Agreement]
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Securities. The Letter of Transmittal states that, by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Initial Securities where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the Expiration Date (as
defined herein), it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See “Plan of Distribution.”
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for
Securities, where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. See “Plan of
Distribution.”
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange Securities received
in exchange for Initial Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed that, for a period
of 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In addition, until ,
201 , all dealers effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities by
broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the
Exchange Securities or a combination of such methods of resale, at market prices prevailing at
the time of resale, at prices related to such prevailing market prices or negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such broker-dealer or
the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange
Securities that were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities may be deemed
to be an “underwriter” within the meaning of the Securities Act, and any profit on any such
resale of Exchange Securities and any commission or concessions received by any such persons
may be deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the
Securities Act.
For a period of 180 days after the Expiration Date, the Company will promptly send
additional copies of this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed
to pay all expenses incident to the Exchange Offer (including the expenses of one counsel for
the Holders) other than commissions or concessions of any brokers or dealers and will indemnify
the Holders (including any broker-dealers) against certain liabilities, including liabilities
under the Securities Act.
| (1) | In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus. |
ANNEX D
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged
in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned
is a broker-dealer that will receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the
Securities Act.
Schedule I
List of Guarantors
| Entity Name | Jurisdiction of Organization | |
| DE | ||
Diamond Resorts Holdings, LLC
|
DE | |
AKGI Poipu Investments, Inc.
|
CA | |
AKGI-St. Maarten N.V.
|
DE | |
Chestnut
Farms, LLC
|
NV | |
Cumberland Gate, LLC
|
DE | |
Diamond Resorts Beach Group, LLC
|
DE | |
Diamond Resorts California Collection Development, LLC
|
DE | |
Diamond Resorts Centralized Services Company
|
DE | |
Diamond Resorts Citrus Share Holding, LLC
|
DE | |
Diamond Resorts ▇▇▇▇▇ ▇▇▇▇▇ Development, LLC
|
DE | |
Diamond Resorts Cypress Pointe I Development, LLC
|
DE | |
Diamond Resorts Cypress Pointe II Development, LLC
|
DE | |
Diamond Resorts Cypress Pointe III Development, LLC
|
DE | |
Diamond Resorts Daytona Development, LLC
|
DE | |
Diamond Resorts Developer and Sales Holding Company
|
DE | |
Diamond Resorts Epic Mortgage Holdings, LLC
|
DE | |
Diamond Resorts Fall Creek Development, LLC
|
DE | |
Diamond Resorts Finance Holding Company
|
DE | |
Diamond Resorts Financial Services, Inc.
|
NV | |
Diamond Resorts Grand Beach I Development, LLC
|
DE | |
Diamond Resorts Grand Beach II Development, LLC
|
DE | |
Diamond Resorts Greensprings Development, LLC
|
DE | |
Diamond Resorts Hawaii Collection Development, LLC
|
DE | |
Diamond Resorts Hilton Head Development, LLC
|
DE | |
Diamond Resorts International Club, Inc.
|
FL | |
Diamond Resorts International Marketing, Inc.
|
CA | |
Diamond Resorts Las Vegas Development, LLC
|
DE | |
Diamond Resorts Management and Exchange Holding Company
|
DE | |
Diamond Resorts Management, Inc.
|
AZ | |
Diamond Resorts Mazatlan Land, LLC
|
DE | |
| Entity Name | Jurisdiction of Organization | |
Diamond Resorts Mexico Share Holding, LLC
|
DE | |
Diamond
Resorts Mortgage Holdings, LLC
|
DE | |
Diamond Resorts Palm Springs Development, LLC
|
DE | |
Diamond Resorts Poco Diablo Development, LLC
|
DE | |
Diamond Resorts Poipu Development, LLC
|
DE | |
Diamond Resorts Polo Development, LLC
|
NV | |
Diamond Resorts Port Royal Development, LLC
|
DE | |
Diamond Resorts Powhatan Development, LLC
|
DE | |
Diamond Resorts Residual Assets Development, LLC
|
DE | |
Diamond Resorts Residual Assets Finance, LLC
|
DE | |
Diamond Resorts Residual Assets M&E, LLC
|
DE | |
Diamond Resorts Ridge on Sedona Development, LLC
|
DE | |
Diamond Resorts Ridge Pointe Development, LLC
|
DE | |
Diamond Resorts San ▇▇▇▇ Bay Development, LLC
|
DE | |
Diamond Resorts Santa Fe Development, LLC
|
DE | |
Diamond Resorts Scottsdale Development, LLC
|
DE | |
Diamond Resorts Sedona Springs Development, LLC
|
DE | |
Diamond Resorts Sedona Summit Development, LLC
|
DE | |
Diamond Resorts St. Croix Development, LLC
|
DE | |
Diamond Resorts Steamboat Development, LLC
|
DE | |
Diamond Resorts Tahoe Beach & Ski Development, LLC
|
DE | |
Diamond Resorts U.S. Collection Development, LLC
|
DE | |
Diamond Resorts Villa Mirage Development, LLC
|
DE | |
Diamond Resorts Villas of Sedona Development, LLC
|
DE | |
Diamond Resorts West Maui Development, LLC
|
DE | |
Foster Shores, LLC
|
MO | |
▇▇▇▇▇▇ Acquisition Subsidiary, Inc.
|
NV | |
Ginger Creek, LLC
|
DE | |
Grand Escapes, LLC
|
DE | |
International Timeshares Marketing, LLC
|
DE | |
Lake Tahoe Resort Partners, LLC
|
CA | |
Mazatlan Development Inc.
|
WA | |
MMG Development Corp.
|
FL | |
Poipu Resort Partners, L.P.
|
HI | |
| Entity Name | Jurisdiction of Organization | |
Resort Management International, Inc.
|
CA | |
Resorts Development International, Inc.
|
NV | |
Sunterra Resort Rental Management, Inc.
|
DE | |
Walsham Lake, LLC
|
MO | |
West Maui Resort Partners, L.P.
|
DE | |