EX-10.7



 





Exhibit 10.7




Execution Copy




ASSIGNMENT AND ASSUMPTION AGREEMENT




March 20, 2007




     This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into
as of the date hereof by and between GSCP (NJ), L.P., a Delaware limited partnership
(“Assignor”) and GSC Investment LLC, a Maryland limited liability company (together with
its successors and assigns, “Assignee”).



     1.     Assignment and Transfer of Collateral Manager Agreements.



     (a)     Assignment and Assumption. Effective as of the Effective Date (as defined below in
Section 2), Assignor hereby irrevocably assigns, transfers and conveys to Assignee, and Assignee
hereby accepts and assumes from Assignor, (i) all of Assignor’s rights, title and interest (other
than the Surviving Rights (as defined below in Section 1(c)) in, to and under (w) that certain
Collateral Management Agreement, dated November 5, 2001, as previously amended prior to the
Effective Date (the “Collateral Management Agreement”), by and between the Issuer (as
defined below) and the Assignor, as collateral manager (the “Original Collateral Manager”),
(x) the other documents to which the Original Collateral Manager is a party or to which it is
subject or of which it is a beneficiary, in each case relating to the transactions contemplated by
the Collateral Management Agreement, (y) all other agreements between the Issuer and the Original
Collateral Manager (such agreements described in clauses (w), (x) and (y) collectively, the
“Collateral Manager Agreements”) and (z) the Indenture, and (ii) all of Assignor’s duties,
obligations and liabilities (other than the Surviving Liabilities (as defined below in Section
1(c)) under the Collateral Manager Agreements (as well as the provisions of the Indenture
applicable to the Collateral Manager). Capitalized terms used and not otherwise defined herein
shall have the respective meanings ascribed in that certain Indenture, dated as of December 4,
2001, as previously amended (the “Indenture”), among GSC Partners CDO Fund III, Limited, as
issuer (the “Issuer”), GSC Partners CDO Fund III, Corp., as co-issuer (the
“Co-Issuer,” and together with the Issuer, the “Co-Issuers”), Financial Security
Assurance Inc. (the “Insurer”) and U.S. Bank National Association (as successor in interest
to Wachovia Bank, National Association (f/k/a First Union National Bank)), as trustee (in such
capacity, the “Trustee”), custodian and securities intermediary. In consideration of such
assignment, Assignee will pay to Assignor, the Cash consideration payable under the Contribution
and Exchange Agreement, dated October 17, 2006, as amended (the “Contribution and Exchange
Agreement”), among the Assignee, the Assignor and the “Investors” party thereto.



     (b)     Performance. Assignee agrees to be bound by and to perform all of Assignor’s obligations
and duties (other than the Surviving Liabilities) under each of the Collateral Manager Agreements
and under the provisions of the Indenture applicable to the Collateral Manager and in accordance
with the terms and condition therein.



     (c)     Consent and Release. The Issuer and the Insurer each hereby consents to the assignment,
transfer and assumption of the Assignor’s rights, title, interest, duties, obligations



 









 







and liabilities under each of the Collateral Manager Agreements (as well as the provisions of
the Indenture applicable to the Collateral Manager) contemplated herein and waives any rights that
it may have to further consent to, receive notice of, condition or qualify such assignment,
transfer and assumption. The parties acknowledge and agree that Assignor is hereby irrevocably
released from all obligations, duties and liabilities under each of the Collateral Manager
Agreements (as well as the provisions of the Indenture applicable to the Collateral Manager) and
shall have no further rights, duties, obligations or liabilities thereunder other than (x) those
rights, duties, obligations and liabilities under Section 10 of the Collateral Management Agreement
arising prior to the Effective Date and (y) those rights, duties, obligations and liabilities under
Sections 2(j)(i) and 15 of the Collateral Management Agreement (such rights described in clauses
(x) and (y) collectively, the “Surviving Rights”; such duties, obligations and liabilities
described in clauses (x) and (y) collectively, the “Surviving Liabilities”). The parties
hereto acknowledge and agree that any failure on the part of Assignee to perform under any of the
Collateral Manager Agreements (or under any provision of the Indenture applicable to the Collateral
Manager) shall not result in any liability to Assignor. Upon the occurrence of the Effective Date,
the Assignee shall be the “Collateral Manager” for all purposes of the Collateral Management
Agreement, all other Collateral Manager Agreements and the Indenture.



     (d)     Continuing Effect of the Collateral Manager Agreements. Notwithstanding the assignment,
transfer and assumption effected hereunder, each of the Collateral Manager Agreements shall remain
in full force and effect, and except as specifically set forth herein, nothing contained herein
shall be interpreted in any way to supersede, modify, replace, amend, change, rescind, waive or
otherwise affect any provision of such agreements.



     (e)     Notices. All notices to Assignor under each of the Collateral Manager Agreements and/or
the Indenture, as of the Effective Date, shall be sent to Assignee at the address set forth in
Section 8(b) hereof.



     2.     Effective Date. This Agreement shall be effective as of the “Effective Date” hereunder,
which date shall be the date first set forth above in this Agreement.



     3.     Representations and Warranties of the Assignor and Assignee.



     (a)     Assignor. The Assignor, as of the Effective Date (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claims; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations made in or
in connection with any of the Collateral Manager Agreements or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Collateral Manager Agreements or
any other instrument or document furnished pursuant thereto; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition of the Co-Issuers or
the performance or observance by the Co-Issuers of any of their respective obligations under any of
the Collateral Manager Agreements, the Indenture or any other Transaction Documents or any other
instrument or document furnished pursuant thereto.



 









 





     (b)     The Assignee hereby represents and warrants to the Assignor and the Issuer as of the date
hereof and as of the Effective Date:



     (i)     The Assignee is a limited liability company duly organized and validly existing and in
good standing under the laws of the State of Maryland and has full power and authority to own its
assets and to transact the business in which it is currently engaged and is duly qualified as a
limited liability company is in good standing under the laws of each jurisdiction where its
ownership or lease of property or the conduct of its business requires, or the performance of this
Agreement and the obligations hereunder and under any of the Collateral Manager Agreements (or any
provision of the Indenture applicable to the Assignee as Collateral Manager) would require such
qualification, except for those jurisdictions in which the failure to be so qualified, would not
have a material adverse effect on the business, operations, assets or financial condition of the
Assignee or on the ability of the Assignee to perform its obligations as Collateral Manager under,
or on the validity or enforceability of, this Agreement, any of the Collateral Manager Agreements
(or any provision of the Indenture applicable to the Assignee as Collateral Manager);



     (ii)     The Assignee has full power and authority to execute, deliver and perform this Agreement
and to perform all obligations required hereunder, under each of the Collateral Manager Agreements
and under the provisions of the Indenture which are applicable to the Assignee as Collateral
Manager, and the Assignee has taken all necessary action to authorize this Agreement on the terms
and conditions hereof and the execution, delivery and performance of this Agreement and the
performance of all obligations required hereunder, under each of the Collateral Manager Agreements
and under the terms of the Indenture which are applicable to the Assignee as Collateral Manager.
No consent of any Person (other than consents of the Issuer and Insurer, which consents have been
obtained and are in full force and effect), including, without limitation, creditors of the
Assignee, and no license, permit, approval or authorization of, exemption by, notice or report to,
or registration, filing or declaration with, any governmental authority is required by the Assignee
in connection with this Agreement or the execution, delivery, performance, validity or
enforceability of this Agreement or the performance of the obligations required hereunder, under
any of the Collateral Manager Agreements or under the terms of the Indenture which are applicable
to the Assignee as Collateral Manager. This Agreement has been, and each instrument and document
required hereunder or under the terms of any of the Collateral Manager Agreements or the Indenture
shall be, executed and delivered by a duly authorized officer of the Assignee, and this Agreement
constitutes, and each instrument and document required hereunder or under the terms of any of the
Collateral Manager Agreements or the Indenture when executed and delivered by the Assignee
hereunder or under the terms of any of the Collateral Manager Agreements or the Indenture, shall
constitute, the legally valid and binding obligations of the Assignee enforceable against the
Assignee in accordance with their terms, subject, as to enforcement, to (a) the effect of
bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as
such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event
applicable to the Assignee and (b) general equitable principles (whether enforceability of such
principles is considered in a proceeding at law or in equity);



     (iii)     The execution, delivery and performance of this Agreement, and the terms of each of the
Collateral Manager Agreements and the Indenture applicable to the Collateral Manager,



 









 







and the documents and instruments required hereunder or under the terms of any of the
Collateral Manager Agreements or the Indenture, shall not violate any provision of any existing law
or regulation binding on or applicable to the Assignee, or any order, judgment, award or decree of
any court, arbitrator or governmental authority binding on the Assignee, or the certificate of
formation, limited liability company agreement or other organizational documents (collectively,
“Governing Instruments”) of, or any securities issued by, the Assignee or of any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to which the Assignee is a
party or by which the Assignee or any of its assets is or may be bound, the violation of which
would have a material adverse effect on the business operations, assets or financial condition of
the Assignee or its ability to perform its obligations under this Agreement, any of the Collateral
Manager Agreements or the Indenture, and shall not result in or require the creation or imposition
of any lien on any of its property, assets or revenues pursuant to the provisions of any such
mortgage, indenture, lease, contract or other agreement, instrument or undertaking;



     (iv)     There is no charge, investigation, action, suit or proceeding before or by any court
pending or, to the best knowledge of the Assignee, threatened that, if determined adversely to the
Assignee, would have a material adverse effect upon the performance by the Assignee of its duties
under, or on the validity or enforceability of this Agreement and the provisions of any of the
Collateral Manager Agreements or the Indenture applicable to the Assignee as Collateral Manager;



     (v)     The Assignee is authorized to carry on its business in the United States;



     (vi)     The Assignee is not in violation of its Governing Instruments or in breach or violation
of or in default under any contract or agreement to which it is a party or by which it or any of
its property may be bound, or any applicable statute or any rule, regulation or order of any court,
government agency or body having jurisdiction over the Assignee or its properties, the breach or
violation of which or default under which would have a material adverse effect on the validity or
enforceability of this Agreement or the provisions of any of the Collateral Manager Agreements or
the Indenture applicable to the Assignee as Collateral Manager hereunder, or the performance by the
Assignee of its duties hereunder or thereunder;



     4.     Further Actions. The parties hereto agree that, from time to time after the
execution and delivery hereof, each will, upon the reasonable request of any of the other parties,
take all such action and execute and deliver all such documents, instruments and conveyances which
may be commercially reasonably necessary or desirable to carry out and give effect to the
assignment, transfer and assumption of each of the Collateral Manager Agreements, and the releases
therefrom and from the provisions of the Indenture applicable to the Collateral Manager,
contemplated hereunder. Without limiting the generality of the foregoing, the parties agree to use
their commercially reasonable efforts to obtain the consents of any other parties or persons who
may have a direct or indirect, legal or beneficial interest (whether as a third party beneficiary
or otherwise) in the assignment, transfer, assumption and releases contemplated hereunder.



     5.     Collateral Management Fees. Notwithstanding anything contained herein to the
contrary, the Assignor shall be entitled to receive on the Payment Date in June 2007 (and on each



 









 







Payment Date thereafter, to the extent unpaid) the Collateral Management Fees accruing to and
including March 6, 2007 under the Indenture and Collateral Management Agreement, and shall not be
entitled to receive the Collateral Management Fees accruing thereunder after such date.



     6.     Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW
PRINCIPLES OF SUCH STATE THAT MIGHT REFER THE GOVERNANCE, CONSTRUCTION OR INTERPRETATION OF THIS
AGREEMENT TO THE LAWS OF ANOTHER JURISDICTION.



     7.     Submission to Jurisdiction. Each of the parties hereto agrees irrevocably and
unconditionally to:



     (a)     submit itself and its property in any action relating to this Agreement, or for
recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of
the courts of the State of New York sitting in the County of New York, the court of the United
States of America for the Southern District of New York, and appellate courts having jurisdiction
of appeals from any of the foregoing, and agree that all claims in respect of any such action shall
be heard and determined in such New York State courts or, to the extent permitted by law, in such
federal courts;



     (b)     consent that any such action may and shall be brought in such courts and waive any
objection that it may now or hereafter have to the venue or jurisdiction of any such action in any
such court or that such action was brought in an inconvenient court and agree not to plead or claim
the same;



     (c)     waive all right to trial by jury in any action (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement, or its performance under or the
enforcement of this Agreement;



     (d)     agree that service of process in any such action may be effected by mailing a copy of such
process by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address as provided in Section 8; and



     (e)     agree that nothing in this Agreement shall affect the right to effect service of process
in any other manner permitted by the laws of the State of New York.



     8.     Notices. Any notice or information to be given, delivered or provided pursuant to
this Agreement to any of the parties shall be in writing and be deemed received, served, delivered
or provided if it is delivered (a) by hand, when delivered in person against written receipt, (b)
by recognized overnight courier, on the next day after deposit with such courier, or (c) by
facsimile transmission, on the date of transmission, upon confirmation of transmission, to the
following address or facsimile number:



 









 





     (a)     in the case of the Assignor, by giving, delivering or providing the original notice or
information to:


GSCP (NJ), L.P.

300 Campus Drive, Suite 110

Florham Park, NJ 07932

Telecopy: 973-593-5454

Attention: Richard T. Allorto




     (b)     in the case of the Assignee, by giving, delivering or providing the original notice or
information to:


GSC Investments LLC

535 Madison Avenue, Floor 17

New York, New York 10022

Telecopy: 212-884-6184

Attention: Thomas V. Inglesby




     or, in each case, to such other address or facsimile number and/or for the attention of any
other individual and/or copied to any other person designated pursuant to a written notice provided
in accordance with this Section 8.



     9.     Headings; Context. The headings of the sections contained in this Agreement are
for convenience of reference only and do not form a part hereof and in no way modify, interpret or
construe the meaning of this Agreement.



     10.     Counterparts. This Agreement may be executed in multiple counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties hereto and delivered to the others.



     11.     Binding Nature of Agreement; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns as provided herein.



     12.     Entire Agreement and Amendment. This Agreement contains the entire understanding
of the parties hereto with regard to the subject matter contained herein, and supersedes all prior
agreements, understandings or letters of intent between or among any of the parties hereto. This
Agreement shall not be amended, modified or supplemented except by a written instrument signed by
an authorized representative of each of parties hereto.



     13.     Waivers. Any term or provision of this Agreement may be waived, or the time for
its performance may be extended, by the party or parties entitled to the benefit thereof. Any such
waiver shall be validly and sufficiently authorized for the purposes of this Agreement if, as to
any party, it is authorized in writing by an authorized representative of such party. The failure
of any party hereto to enforce at any time any provision of this Agreement shall not be construed
as a waiver of such provision, nor in any way affect the validity of this Agreement or any party
hereto or the right of any party thereafter to enforce each and every such provision. No waiver



 









 







of any breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.



     14.     Indemnification. The Assignor shall indemnify and hold harmless the Assignee from
and against any expenses, losses, damages, liabilities, demands, charges and claims of any nature
whatsoever (including reasonable attorneys’ and accountants’ fees and expenses) (collectively,
“Liabilities”) arising from or in connection with the Assignee’s acting as successor Collateral
Manager, or the performance of the Collateral Manager’s duties under the Collateral Management
Agreement or the Indenture, in each case to the extent such Liabilities are in respect of any acts
or omissions by the Assignor, or any events occurring, prior to the date hereof. The Assignee
shall indemnify and hold harmless the Assignor from and against any Liabilities arising from or in
connection with the Assignor’s acting as initial Collateral Manager, or the performance of the
Collateral Manager’s duties under the Collateral Management Agreement or the Indenture, in each
case to the extent such Liabilities are in respect of any acts or omissions by the Assignee, or any
events occurring, on or after the date hereof. Notwithstanding the foregoing, in no event shall
the Assignor or the Assignee be liable for consequential, special, exemplary or punitive damages.



     15.     Priority of Payments; Non-Recourse; Non-Petition.



     (a)     The Assignee agrees that the payment of all amounts to which it is entitled, pursuant to
this Agreement shall be subject to the Priority of Payments and shall be payable only to the extent
funds are available in accordance with the Priority of Payments.



     (b)     Notwithstanding any other provision of this Agreement and except as provided in the
preceding paragraph, the liability of the Issuer to the Assignee hereunder is limited in recourse
to the Collateral, and if the proceeds of the Collateral following the liquidation thereof, when
applied in accordance with the Priority of Payments, are insufficient to meet the obligations of
the Issuer hereunder in full, the Issuer shall have no further liability in respect of any such
outstanding obligations, and such obligations and all claims of the Assignee or any other Person
against the Issuer hereunder shall thereupon extinguish and not thereafter revive.



     (c)     The Assignee accepts that the obligations of the Issuer under the Collateral Management
Agreement are the corporate obligations of the Issuer and are not the obligations of any employee,
shareholder, officer, director or administrator of the Issuer and no action may be taken against
any such person in relation to the obligations of the Issuer under the Collateral Management
Agreement.



     (d)     Notwithstanding any other provision of this Agreement, the Assignee agrees not to
institute against, or join any other Person in instituting against, either of the Co-Issuers any
bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or
other proceedings under Cayman Islands bankruptcy laws, United States federal or state bankruptcy
laws, or similar laws of any jurisdiction until at least one year and one day or the then
applicable, if longer, preference period after the payment in full of all amounts payable in
respect of the Securities plus one day; provided, however, that nothing in this provision shall
preclude, or be deemed to stop, the Assignee (A) from taking any action prior to the expiration of
the aforementioned one year and one day period (or, if longer, the applicable preference period



 









 







then in effect plus one day) in (x) any case or proceeding voluntarily filed or commenced by
the Issuer or the Co-Issuer, as the case may be, or (y) any involuntary insolvency proceeding filed
or commenced against the Issuer or the Co-Issuer, as the case may be, by a Person other than the
Assignee or its Affiliates, or (B) from commencing against the Issuer or the Co-Issuer or any
properties of the Issuer or the Co-Issuer any legal action which is not a bankruptcy,
reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding.



     (e)     The Assignee hereby consents to the assignment of the Collateral Management Agreement as
provided in Section 15.1 of the Indenture.



     (f)     The provisions of this Section 15 shall survive termination of this Agreement for any
reason whatsoever.



[Remainder of page intentionally left blank]




 









 







IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to
be executed by their respective officers thereunto duly authorized, as of the date first above
written.




	 	 	 	 	 
	 	GSC (NJ), L.P.,

as Assignor

 	 
	 	By:  	GSCP (NJ), Inc. its General Partner
 	 
	 	 	 	 
	 	By:  	/s/ David L. Goret
 	 
	 	 	Name:  	David L. Goret 	 
	 	 	Title:  	Senior Managing Director and Secretary 	 
	 
	 	GSC Investment LLC

as Assignee

 	 
	 	By:  	/s/ Thomas V. Inglesby
 	 
	 	 	Name:  	Thomas V. Inglesby 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



 









 






	 	 	 	 	 
	Acknowledged and Agreed:



GSC Partners CDO III, Limited,

as Issuer

 	 
	By:  	/s/ Carlos Farjallah
 	 
	 	Name:  	Carlos Farjallah 	 
	 	Title:  	Director 	 
	 
	Financial Security Assurance Inc.,

as Insurer

 	 
	By:  	/s/ Steven M. Tremblay
 	 
	 	Name:  	Steven M. Tremblay 	 
	 	Title:  	Director 	 
	 
	U.S. Bank National Association.,

as Trustee

 	 
	By:  	/s/ C. Brand Hosford
 	 
	 	Name:  	C. Brand Hosford 	 
	 	Title:  	Vice President