Collateral Assignment Agreement - First Union National Bank, Infogrames Entertainment SA, and GT Interactive Software Corp.
COLLATERAL ASSIGNMENT AGREEMENT
COLLATERAL ASSIGNMENT AGREEMENT (this "Agreement"), dated as
of February 15, 2000, by and among the parties listed on the signature pages
hereof.
STATEMENT OF PURPOSE:
The Existing Agent referred to below is also party to a
certain Credit Agreement, dated as of September 11, 1998 (as heretofore amended,
supplemented or otherwise modified, the "Credit Agreement"), by and among GT
Interactive Software Corp. (the "Borrower"), the banks, financial institutions
and other entities party thereto (the "Existing Lenders"), NationsBanc
Montgomery Securities, LLC, as syndication agent, Fleet Bank, N.A., as
documentation agent, and First Union National Bank ("First Union"), as
administrative agent for the Existing Lenders (in such capacity, the "Existing
Agent").
First Union (a) has acted as Administrative Agent under the
Credit Agreement, (b) is the designated grantee under the agreements identified
on Schedule 1 (each such agreement as heretofore amended, supplemented or
otherwise modified, collectively, the "Security Documents") of Liens, for the
benefit of the Existing Lenders, (c) is the designated beneficiary under the
Guaranty Agreement (as heretofore amended, supplemented or otherwise modified,
the "Guaranty"; and, together with the Security Documents, collectively, the
"Collateral Documents") of a guaranty, for the benefit of the Existing Lenders,
of the Obligations and (d) has possession of the collateral identified on
Schedule 2 (the "Pledged Stock").
Pursuant to a Master Assignment and Acceptance Agreement,
dated as of the date hereof (the "Assignment and Acceptance"), Infogrames
Entertainment SA ("Infogrames") will acquire all of the Commitments of each of
the Existing Lenders under the Credit Agreement (Infogrames, in its capacity as
the assignee of all such Commitments under the Assignment and Acceptance, the
"Assignee").
In connection with the acquisition by the Assignee of the
Commitments under the Credit Agreement pursuant to the Assignment and
Acceptance, the Existing Agent will resign as Administrative Agent under the
Credit Agreement and the other Loan Documents, and the Borrower has informed the
Existing Agent that the Borrower and the Assignee, as the sole Lender under the
Credit Agreement on the Assignment Effective Date (as defined in the Assignment
and Acceptance), will appoint Infogrames as successor Administrative Agent under
the Credit Agreement and the other Loan Documents (in such capacity, the
"Successor Agent") pursuant to Section 12.9 of the Credit Agreement.
In connection with the resignation of the Existing Agent, the
Borrower and the Assignee have requested that the Existing Agent enter into this
Agreement, among other things,
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to assign all of the Existing Agent's right, title and interest in the
Collateral (as defined in the Security Documents) and the Collateral Documents
to the Successor Agent pursuant to Section 12.9 of the Credit Agreement.
NOW, THEREFORE, each of the parties hereto hereby agrees as
follows:
SECTION 1.
DEFINITIONS
Section 1.1. Capitalized terms used herein and not otherwise
defined shall have their respective meanings set forth in the Credit Agreement.
SECTION 2.
RESIGNATION OF EXISTING AGENT;
APPOINTMENT OF SUCCESSOR AGENT
Section 2.1. Confirmation of Resignation. The Existing Agent
hereby confirms its resignation as Administrative Agent pursuant to Section 12.9
of the Credit Agreement, effective as of the Assignment Effective Date. The
Borrower and the Assignee, as the sole Lender under the Credit Agreement on the
Assignment Effective Date, hereby waive any requirement for prior notice of such
resignation pursuant to Section 12.9 of the Credit Agreement.
Section 2.2. Appointment of Successor. The Assignee, as the
sole Lender under the Credit Agreement on the Assignment Effective Date, hereby
appoints Infogrames, effective as of the Assignment Effective Date, to be
successor Administrative Agent pursuant to Section 12.9 of the Credit Agreement
and hereby waives any requirement under Section 12.9 of the Credit Agreement of
the Successor Agent having minimum capital and surplus of $500,000,000.
Section 2.3. Acceptance by Successor. Infogrames hereby
accepts its appointment as successor Administrative Agent under the Credit
Agreement, effective as of the Assignment Effective Date.
SECTION 3.
ASSIGNMENT AND ACCEPTANCE
Section 3.1. Assignment. The Existing Agent hereby assigns, as
of the Assignment Effective Date, to the Successor Agent, for the benefit of the
Lenders (including without limitation, the Assignee), all of the Existing
Agent's right, title and interest in, to and under (a) the Collateral, the
Security Documents and any other Loan Document evidencing the grant of any lien
or security interest in any property of the Borrower or any Guarantor, (b) the
Guaranty and (c) the Pledged Stock (all of the foregoing described in clauses
(a), (b) and (c), collectively, the "Assigned Collateral").
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Section 3.2. Acceptance. The Successor Agent hereby accepts,
as of the Assignment Effective Date, all of the Existing Agent's right, title
and interest in, to and under the Assigned Collateral.
Section 3.3. Effect on Collateral Documents. Effective as of
the Assignment Effective Date, all references in the Collateral Documents to
First Union or the Administrative Agent shall be deemed, where appropriate, to
be references to Infogrames or the Successor Agent, as the case may be. The
parties hereto hereby agree that nothing contained in this Agreement or in the
Assignment and Acceptance shall affect the ability of the Assignee to amend,
modify or terminate any Loan Document pursuant to the terms thereto.
Section 3.4. Further Assurances. The Existing Agent shall
promptly execute and deliver, at any time and from time to time, upon the
reasonable written request of the Successor Agent and at the expense of the
Borrower, any and all such further instruments and documents and take such
further reasonable action as the Successor Agent may reasonably deem necessary
in obtaining the full benefits of this Agreement and the Collateral Documents
and of the rights and powers herein and therein granted.
SECTION 4.
CERTAIN OBLIGATIONS AND DUTIES OF THE EXISTING AGENT;
REPRESENTATIONS AND WARRANTIES
Section 4.1. Delivery of Pledged Stock. The Existing Agent
shall promptly deliver to the Successor Agent, and the Successor Agent shall
acknowledge in writing receipt of, all of the Pledged Stock.
Section 4.2. Certain Representations and Warranties. (a) The
Existing Agent hereby represents and warrants as follows:
(i) It is a national bank duly organized, validly existing and
in good standing and has all requisite power and authority to enter
into and perform its obligations under this Agreement.
(ii) The execution, delivery and performance by it of this
Agreement has been duly authorized by all necessary action on its part.
(iii) This Agreement has been duly executed and delivered by
it.
(b) Each of the Borrower and the Guarantors hereby represents
and warrants as follows:
(i) It is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization
and has all requisite power and authority to enter into and perform its
obligations under this Agreement.
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(ii) The execution, delivery and performance by it of this
Agreement has been duly authorized by all necessary action on its part.
(iii) This Agreement has been duly executed and delivered by
it.
(c) The Successor Agent hereby represents and warrants as
follows:
(i) It is a societe anonyme duly formed, validly existing and
in good standing under the laws of France and has all requisite power
and authority to enter into and perform its obligations under this
Agreement.
(ii) The execution, delivery and performance by it of this
Agreement has been duly authorized by all necessary action on its part.
(iii) This Agreement has been duly executed and delivered by
it.
SECTION 5.
EXPENSES
Section 5.1. Expenses. All reasonable expenses of the Existing
Agent incurred in connection with this Agreement or the assignment of the
Assigned Collateral to the Successor Agent, as and when described herein,
including, without limitation, any required filing of record of any instrument
effecting or giving notice of the assignment evidenced hereby shall be at the
expense of and are for the account of the Borrower, payable upon demand therefor
by the Existing Agent.
Section 5.2. Indemnification. The Borrower hereby confirms and
agrees that the provisions of Section 13.2 of the Credit Agreement only as they
pertain to the Existing Agent shall survive its resignation as Administrative
Agent and that any obligations of the Borrower under such Section shall
constitute "Borrower Obligations" and "Obligations" under the Credit Agreement
and Collateral Documents or any successor documents thereto. The parties hereto
hereby confirm and agree that the provisions of Section 12.7 of the Credit
Agreement only as they pertain to the Existing Agent shall survive its
resignation as Administrative Agent.
Section 5.3. Exculpatory Provisions. The Existing Agent (a)
shall not be responsible in any manner whatsoever for the correctness of any
recitals, statements, representations or warranties contained in the Credit
Agreement or in the Loan Documents, (b) makes no representation or warranty
whatsoever as to the value or condition of the Assigned Collateral or any part
thereof, or as to the tide of any of the grantors thereto or as to the security
afforded by the Collateral Documents, the Assigned Collateral or this Agreement,
or as to the validity, execution, enforceability, legality or sufficiency of
this Agreement (except as set forth in Section 4.2(a) of this Agreement) or any
Collateral Documents, the Assigned Collateral or of the obligations and other
indebtedness secured thereby, or the validity, perfection or priority of any
lien or security interest in the Collateral, (c) makes no representation or
warranty or assumes any responsibility with respect to the financial condition
of the Borrower, any of its
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Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, and (d) shall not incur any
liability or responsibility whatsoever in respect of any of the foregoing.
SECTION 6.
EFFECTIVENESS OF AGREEMENT; MISCELLANEOUS
Section 6.1. Conditions. This Agreement shall be and become
effective as of the date first above written upon (a) execution and delivery of
this Agreement by each of the parties hereto and (b) the occurrence of the
Assignment Effective Date under the Assignment and Acceptance.
Section 6.2. Headings. Section and other headings used in this
Agreement are for convenience only and shall not affect the construction of this
Agreement.
Section 6.3. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall not invalidate
the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
Section 6.4. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their respective
permitted successors and assigns, and nothing herein or in any other agreement
executed or delivered in connection herewith is intended or shall be construed
to give any other Person any right, remedy or claim under, to or in respect of
this Agreement, any Collateral Document or the Assigned Collateral.
Section 6.5. Conflict with Other Agreements. The parties agree
that in the event of any conflict between the provisions of this Agreement and
the provisions of any of the Collateral Documents or agreements identified in
Schedule 1, the provisions of this Agreement shall control.
Section 6.6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 6.7. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written by their respective
duly authorized officers.
EXISTING AGENT:
FIRST UNION NATIONAL BANK,
as Existing Agent
By:
-------------------------------
Name:
Title:
SUCCESSOR AGENT:
INFOGRAMES ENTERTAINMENT, S.A.,
as Successor Agent
By:
-------------------------------
Name:
Title:
BORROWER:
GT INTERACTIVE SOFTWARE CORP.
By:
-------------------------------
Name:
Title:
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GUARANTORS:
HUMONGOUS ENTERTAINMENT, INC.
WIZARDWORKS GROUP, INC.
SINGLETRAC ENTERTAINMENT
TECHNOLOGIES, INC.
SWAN ACQUISITION CORP.
CANDEL INC.
FORMGEN, INC.
GOLD MEDALLION SOFTWARE INC.
MEDIATECHNICS, LTD.
LEGEND ENTERTAINMENT COMPANY LLC
By:
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Name:
Title:
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