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
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