EXHIBIT 10.213
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated as
of November 9, 1998 is made between GREAT-WEST & ANNUITY LIFE INSURANCE
COMPANY (the "Assignor") and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (the "Assignee").
R E C I T A L S
WHEREAS, the Assignor is party to that certain Credit Agreement
dated as of November 10, 1997, as amended by the First Amendment to
Credit Agreement and Release of Guaranty dated as of April 24, 1998 (as
the same may be further amended, modified or restated from time to time,
the "Credit Agreement"), among DEEPWATER DRILLING II L.L.C. ("Company"),
the several financial institutions from time to time party thereto (the
"Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent (the "Administrative Agent") for the Banks, and
NATIONAL WESTMINSTER BANK PLC, as Documentation Agent (the "Documentation
Agent") for the Banks (terms defined in the Credit Agreement are used
herein with the same meaning);
WHEREAS, as provided in the Credit Agreement, the Banks have
committed to extend credit to the Company;
WHEREAS, pursuant to Section 10.08 of the Credit Agreement, the
Assignor wishes to assign to the Assignee all of the rights and
obligations of the Assignor under the Credit Agreement in respect of its
Commitment, together with its outstanding Revolving Loans in a total
amount equal to Twenty Million Dollars (U.S. $20,000,000.00) (the
"Assigned Amount") on the terms and subject to the conditions set forth
herein and in the Credit Agreement, and the Assignee wishes to accept
assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Assumption.
(a) Before giving effect to this Agreement, Assignor's (a)
Commitment is $20,000,000.00, (b) aggregate principal amount of its
outstanding Revolving Loans is $20,000,000.00, and (c) Pro Rata Share is
11.42857143%. With effect on and after the Effective Date (as defined in
Section 4 hereof), the Assignor hereby sells, transfers and assigns to
the Assignee, and the Assignee hereby purchases, assumes and undertakes
from the Assignor, without recourse, and without representation or
warranty (except as provided in this Agreement) the Assigned Amount,
which shall be equal to all of Assignee's share of (i) the Commitment,
(ii) outstanding Revolving Loans, and (iii) all related rights, benefits,
obligations, liabilities and indemnities of the Assignor under and in
connection with the Credit Agreement and the other Loan Documents. After
giving effect to this Agreement on the Effective Date, the Commitment,
outstanding Revolving Loans, and Pro Rata Share of Assignor and Assignee,
respectively, are set forth as follows:
Outstanding Pro Rata
Revolving Share Commitments
Loans
Assignor $ 0 0% $ 0
Assignee $52,500,000.00 30% $52,500,000.00
(b) It is the intent of the parties hereto that (i) the
Commitment of the Assignor shall, as of the Effective Date, be reduced to
zero and (ii) the Assignor shall relinquish its rights and be released
from its obligations under the Credit Agreement; provided, however, that
the Assignor shall not relinquish its rights under Section 10.04 and
10.05 of the Credit Agreement to the extent such rights relate to the
time prior to the Effective Date.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor
on the Effective Date in immediately available funds an amount equal to
Twenty Million Dollars ($20,000,000.00), representing the Assignee's Pro
Rata Share of the principal amount of all Loans previously made, and
currently owned, by the Assignor under the Credit Agreement and
outstanding on the Effective Date.
(b) To the extent payment to be made by the Assignee pursuant
to Section 2(a) hereof is not made when due, the Assignor shall be
entitled to recover such amount together with interest thereon at the
Federal Funds Rate per annum accruing from the date such amounts were
due.
3. Reallocation of Payments. Any interest, fees and other
payments accrued to but excluding the Effective Date with respect to the
Assignor's Pro Rata Share of the Revolving Loans shall be for the account
of the Assignor. Any interest, fees and other payments accrued on and
after the Effective Date with respect to the Assigned Amount shall be for
the account of the Assignee. Each of the Assignor and the Assignee agree
that it will hold in trust for the other party any interest, fees and
other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentence and pay to the other party any such
amounts which it may receive promptly upon receipt.
4. Effective Date; Notices; Notes.
(a) The effective date for this Agreement shall be
November 9, 1998 (the "Effective Date"); provided that the following
conditions precedent have been satisfied on or before the Effective Date:
(i) this Agreement shall be executed and delivered by the Assignor and
the Assignee; (ii) the consent of each of the Company and of the
Administrative Agent shall have been duly obtained and shall be in full
force and effect as of the Effective Date; and (iii) the Assignee shall
pay to the Assignor all amounts due to the Assignor under this Agreement.
(b) Promptly following payment by the Assignee of the
consideration as provided in Section 2 hereof, the Assignor shall deliver
its promissory note(s) to the Administrative Agent.
5. Representations and Warranties.
(a) The Assignor represents and warrants that (i) 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 lien, security interest
or other adverse claim; (ii) it is duly organized and existing and it has
the full power and authority to take, and has taken, all action necessary
to execute and deliver this Agreement and any other documents required or
permitted to be executed or delivered by it in connection with this
Agreement and to fulfill its obligations hereunder.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document
furnished pursuant thereto. The Assignor makes no representation or
warranty in connection with, and assumes no responsibility with respect
to, the solvency, financial condition or statements of the Company or any
guarantor or the performance or observance by the Company or any
guarantor of any of its respective obligations under the Credit Agreement
or any other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and
has taken, all action necessary to execute and deliver this Agreement and
any other documents required or permitted to be executed or delivered by
it in connection with this Agreement, and to fulfill its obligations
hereunder; (ii) it is eligible under the Credit Agreement to be an
assignee in accordance with the terms hereof; and (iii) that it has
received a copy of the Credit Agreement and the exhibits and schedules
thereto, and has received (or waived the requirement that it receive)
copies of each of the documents which were required to be delivered under
the Credit Agreement as a condition to the making of the Loans
thereunder.
6. Further Assurances. The Assignor and the Assignee each hereby
agree to execute and deliver such other instruments, and take such other
action, as either party may reasonably request in connection with the
transactions contemplated by this Agreement, including, without
limitation, the delivery of any notices or other documents or instruments
to the Company, the Administrative Agent or any guarantor which may be
required in connection with the assignment and assumption contemplated
hereby.
7. Miscellaneous.
(a) Any amendment or waiver of any provision of this Agreement
shall be in writing signed by the parties hereto. No failure or delay by
either party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Agreement shall be without prejudice to any rights
with respect to any other or further breach hereof.
(b) All payments made hereunder shall be made without any set-
off or counterclaim.
(c) Neither the Assignor nor the Assignee shall be responsible
to each other for payment of their costs and expenses incurred in
connection with the negotiation, preparation, execution and performance
of this Agreement.
(d) The representations and warranties made herein shall
survive the consummation of the transactions contemplated hereby.
(e) This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed
to constitute one and the same instrument.
(f) This Agreement shall be governed by and construed in
accordance with the law of the State of New York (without regard to
principles of conflicts of law). The Assignor and the Assignee each
irrevocably submits to the non-exclusive jurisdiction of any New York
State or Federal court sitting in the Southern District of New York over
any suit, action or proceeding arising out of or relating to this
Agreement or the Credit Agreement and irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in
such New York State or Federal court. Each party to this Agreement
hereby irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of such
action or proceeding.
(g) This Agreement and any agreement, document or instrument
attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto, and together with the
Credit Agreement constitutes the entire agreement and understanding
between the parties hereto and supersedes any and all prior agreements
and understandings related to the subject matter hereof. In the event of
any conflict between the terms, conditions and provisions of this
Agreement and the Credit Agreement, the terms, conditions and provisions
of the Credit Agreement shall prevail.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duly authorized officers
as of the date first above written.
ASSIGNOR:
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By_________________________
Name:
Title:
By_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE ASSIGNMENT AND ACCEPTANCE AGREEMENT]
ASSIGNEE:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By_________________________
Xxxxxx X. Xxx
Managing Director
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent, herby grants
its consent to the foregoing assignment
By_________________________
Xxxxxx X. Xxx
Managing Director
[THIS IS A SIGNATURE PAGE TO THE ASSIGNMENT AND ACCEPTANCE AGREEMENT]
DEEPWATER DRILLING II L.L.C.
hereby grants its consent to the
foregong assignment
By_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE ASSIGNMENT AND ACCEPTANCE AGREEMENT]
