AMENDMENT TO THE CONTRIBUTION AND EXCHANGE AGREEMENT DATED AS OF MARCH 20, 2007 AMONG GSC INVESTMENT LLC, GSC CDO III L.L.C., GSCP (NJ), L.P., AND THE OTHER INVESTORS PARTY HERETO
Exhibit 10.5
AMENDMENT TO THE
DATED AS OF MARCH 20, 2007
AMONG
GSC INVESTMENT LLC,
GSC CDO III L.L.C.,
GSCP (NJ), L.P.,
AND
THE OTHER INVESTORS PARTY HERETO
This AMENDMENT TO THE CONTRIBUTION AND EXCHANGE AGREEMENT (the “Amendment”) dated as of March
20, 2007 by and among GSC Investments LLC, a Maryland limited liability company (“Newco”), GSC CDO
III, L.L.C., a Delaware limited liability company (the “Class A Investor”) and the persons
identified below (collectively, the “Class B Investors,” together with the Class A Investor, the
“Investors”) and GSCP (NJ), L.P., a Delaware limited partnership (the “Manager,” together with
Newco and the Investors, the “Parties”).
WHEREAS the Parties entered into the Contribution and Exchange Agreement dated October 17,
2006 (the “Agreement”) with respect to the contribution to Newco (i) of certain general partner and
limited partner interests in GSC Partners CDO GP III, L.P., a Cayman Islands exempted limited
partnership ( “CDO III GP”), by the Investors and the Manager, and (ii) of the rights and
obligations of the Manager under the Collateral Management Agreement dated as of November 5, 2001
(the “Collateral Management Agreement”) in exchange for common shares of Newco (“Common Shares”);
WHEREAS CDO III GP is the general partner of GSC Partners CDO Investors III, L.P., a Cayman
Island exempted limited partnership, which owns all of the outstanding Subordinated Notes of GSC
Partners CDO Fund III, Limited, a Cayman Islands company (“CDO Fund III”); and
WHEREAS the Parties wish to amend the Agreement in accordance with Section 5.01 of the
Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereby agree as follows:
Section 1.01. Purchase of Role as Collateral Manager. In lieu of Newco’s obligation to
deliver Common Shares to the Manager in consideration of the Manager’s assignment of the Collateral
Management Agreement to Newco pursuant to and in accordance with Section 1.01(b) of the Agreement,
Newco shall, subject to the following terms and conditions, pay to the Manager cash consideration
in the amount equal to the fair value of the role as collateral manager of CDO Fund III. The fair
value of the role as collateral manager of CDO Fund III shall be calculated by a majority of
Newco’s independent directors acting in good faith by considering the aggregate value of the
management fees that would be payable to Newco under the Collateral Management Agreement from the
date of the assignment through the date of maturity of the financing entered into by CDO Fund III.
The cash payable by Newco to the Manager pursuant to the immediately preceding sentence shall be
delivered on such date as may be agreed between Newco and the Manager.
Section 1.02. Waiver of Conditions to Transfer Limited Partner Interests. (a) As general
partner of CDO III GP, the Class A Investor hereby agrees to waive the conditions set forth in
Sections 10.1(b)(i), 10.1(b)(ii), 10.1(b)(iii), 10.1(b)(iv), 10.1(b)(v), 10.1(b)(vi), 10.1(b)(vii)
and 10.1(c) of the Amended and Restated Limited Partnership Agreement of CDO III GP dated October
16, 2001 with respect to the transfer of the Class B Investors limited partner interests.
(b) Power of Attorney. Each of the Class B Investors hereby appoints the Class A Investor to
act as attorney-in-fact for such Class B Investor for the purpose of effecting the transfer of such
Class B Investor’s limited partner interests in CDO III GP and any other documents in connection
therewith.
Section 1.03. Deficit Amount. The Class A Investor and the Class B Investors hereby
severally agree to make an additional contribution to Newco in cash equal to such Investor’s Pro
Rata Share of the Deficit Amount, if any, within five business days following receipt of a written
demand by Newco; provided that no Investor shall be obligated under this provision to pay an amount
in aggregate in excess of such Investor’s Pro Rata Share of $5,000,000. Newco shall make a written
demand with respect to the Deficit Amount not less than 120 days nor more than 150 days after the
date hereof. No additional Common Shares will be issued to the Investors.
“Deficit Amount” means an amount, if any, as determined by Newco, by which the actual
aggregate distributions received by Newco with respect to the GP Interest and LP Interests are less
than the fair value of such Interests as of the date hereof.
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“Pro Rata Share” means, with respect to each Investor, a percentage determined by dividing the
number of Common Shares issued pursuant to Section 1.01 of the Agreement to such Investor by the
total number of Common Shares issued under Section 1.01 of the Agreement to all of the Investors.
Section 1.04. Governing Law. This Amendment is made and shall be governed by and construed
in all respects in accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws thereof.
Capitalized terms used and not otherwise defined herein shall have the respective meanings
ascribed in the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| GSC INVESTMENT LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx
|
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| Title: Chief Financial Officer | ||||||
| GSC CDO III L.L.C. | ||||||
| By: GSCP (NJ) Holdings, L.P. as its sole member | ||||||
| By: GSCP (NJ), Inc., as its General Partner | ||||||
| By: | /s/ Xxxxx X. Xxxxx
|
|||||
| Title: Managing Director and Secretary | ||||||
| GSCP | (NJ), L.P. | |||||
| By: GSCP (NJ), Inc., as its General Partner | ||||||
| By: | /s/ Xxxxx X. Xxxxx
|
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| Title: Managing Director and Secretary | ||||||
| Class B Investors: | ||||||
| /s/ Xxxxxx X. Xxxxxxx
|
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| /s/ Xxxxxxx X. Xxxxxx
|
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| /s/ Xxxxxx X. Xxxxxxxx
|
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| /s/ Xxxxxx X. Xxxxxx
|
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| /s/ Xxxxx X. Xxxxx
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| XXXXX XXXXX INVESTMENTS LLC | ||||||
| By: | /s/ Xxxxx Xxxxx
|
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| Title: Managing Member | ||||||
| GREENWICH STREET CAPITAL PARTNERS II, L.P. | ||||||
| By: Greenwich Street Investments II, L.L.C., as its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx
|
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| Title: Managing Member | ||||||
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