ASSIGNMENT, XXXX OF SALE AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT, XXXX OF SALE AND ASSUMPTION AGREEMENT (this
"ASSIGNMENT") is made effective the 31st day of May, 1998, by and between THE
ELECTRONICS BOUTIQUE, INC., a Pennsylvania corporation having its principal
office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, XX (the "ASSIGNOR"), and
ELECTRONICS BOUTIQUE OF AMERICA INC., a Pennsylvania corporation having its
principal office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, XX (the
"ASSIGNEE").
WHEREAS, Electronics Boutique Holdings Corp. ("EB HOLDINGS") was
incorporated under the laws of the State of Delaware in March 1998 as a
holding company for the operating activities of the Assignor;
WHEREAS, in contemplation of an initial public offering of shares of
Common Stock of EB Holdings, Assignor and Assignee have determined that it
will be in their best interests for Assignor to transfer its business as a
going concern to Assignee;
NOW THEREFORE, in consideration of one hundred (100) shares of common
stock of Assignee to be issued to Assignor and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. ASSIGNMENT, SALE AND ASSUMPTION
(a) Assignor, on behalf of itself, its agents, employees,
representatives, directors, officers, insurers, predecessors, successors and
assigns, or any of them, hereby assigns, sells, transfers, grants and sets
over unto Assignee all of Assignor's right, title and interest in the
following property owned by the Assignor (collectively the "ASSIGNED
PROPERTY"):
(i) Inventory;
(ii) Prepaid expenses;
(iii) Leaseholds and leasehold improvements, including all
distribution centers leased by the Assignor and excluding the distribution
center owned by the Assignor in West Chester, Pennsylvania; and
(iv) Each of the items listed on Schedule A attached hereto,
which, together with the property in Section 1(a)(i)-(iii) hereof constitute
the transfer of a going concern from Assignor to Assignee; and
(b) Assignee, on behalf of itself, its agents, employees,
representatives, directors, officers, insurers, predecessors, successors and
assigns, or any of them, hereby accepts the Assignment and, as part of the
consideration therefor, assumes all of the liabilities and obligations
of Assignor, to be performed and satisfied from and after the date hereof,
including, without limitation, the following liabilities and obligations of
the Assignor:
(i) Accounts payable;
(ii) Accrued expenses;
(iii) Bank debt.
By acceptance of this Assignment, Assignee assumes any and all
liabilities and obligations relating to any of the items described in Section
1(a) and on Schedule A. Assignee also assumes all liability for any claims,
demands, actions, debts, rights, judgments, contracts, covenants, agreements,
bonds, and expenses, whether known or unknown, that may arise in the ordinary
course of business or otherwise after the date of this Assignment regardless
of whether they relate to actions occurring before or after the date of this
Assignment. Because substantially all of the leasehold interests of Assignor
(the "Leases") expressly require the consent of the landlord to assign, and
because Assignor will not obtain such consents, Assignee expressly assumes
the risk of any potential claims by such landlords (the "Landlord Claims").
(c) Assignee acknowledges that Assignor is not assigning to it cash,
receivables and intellectual property previously utilized by Assignor in
conduct of its business.
In furtherance of the foregoing, the parties hereto further agree as
follows:
2. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants that
a true, complete and accurate list of Assigned Property is contained in
Section 1(a) of this Agreement and on Schedule A attached hereto; that
Assignor has good title to the Property and, except for the Leases, the power
and authority to assign and transfer the Assigned Property; that Assignor has
made no prior assignment of the Assigned Property; that, to the best of
Assignor's knowledge, the Assigned Property is free and clear of all liens
(except bank liens), encumbrances and, except for Landlord Claims, any
adverse claims. Assignor covenants that if any of the Assigned Property is
not assignable, Assignor will cooperate to the extent reasonably requested by
Assignee, at Assignee's expense, in any enforcement action taken by Assignee.
3. INDEMNITY. Assignee shall indemnify, defend and hold Assignor harmless
from and against any and all cost, liabilities, damage or expense, including,
reasonable attorneys' fees, originating from any failure by Assignee to pay
any liability assumed hereunder or any act or omission by Assignee, its
employees or agents, occurring or arising after the date of this Assignment,
and arising out of any right, title or interest of Assignee in the Assigned
Property.
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4. SUCCESSORS AND ASSIGNS. The rights, interests and benefits granted
hereby and the burdens and obligations imposed hereby shall inure to the
benefit of and be binding upon, as the case may be, the parties hereto and
their respective successors and assigns.
5. GOVERNING LAW. This Assignment shall be governed by the laws of the
Commonwealth of Pennsylvania without regard to its choice of laws principles.
6. COUNTERPARTS. This Assignment may be signed in any number of
counterparts, each of which shall be an original, and all of which taken
together shall constitute a single agreement.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be
duly executed as of the day and year first above written.
WITNESS OR ATTEST: ASSIGNOR:
THE ELECTRONICS BOUTIQUE, INC.
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxxx Xxxxxxxx, Assistant Secretary Xxxxxx X. Xxxxxxxxx, President
ASSIGNEE:
ELECTRONICS BOUTIQUE OF
AMERICA INC.
/s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxxx, Secretary Xxxxxx X. Xxxxxxxxx, President
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