ESCROW AGREEMENT
among
GSC HOLDINGS CORP.,
GAMESTOP, INC.
and
CITIBANK, N.A.
as Escrow Agent and Trustee
Dated as of September 28, 2005
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Escrow Agreement") made this 28th day of September,
2005 by and among CITIBANK, N.A., a national banking institution incorporated
under the laws of the United States of America, as Escrow Agent (the "Escrow
Agent"), and as trustee (the "Trustee"), GSC Holdings Corp., a Delaware
corporation (the "Company"), and GameStop, Inc., a Minnesota corporation
("GameStop" and, collectively with the Company, the "Depositors" and each, a
"Depositor").
WHEREAS, pursuant to the Purchase Agreement (the "Purchase Agreement"),
dated as of September 21, 2005, among the Depositors, the Initial Guarantors (as
defined therein), Citigroup Global Markets Inc., Banc of America Securities LLC
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (collectively, the
"Initial Purchasers"), the Depositors have agreed to sell to the Initial
Purchasers $300 million aggregate principal amount of Senior Floating Rate Notes
due 2011 (the "Senior Floating Rate Notes") and $650 million aggregate principal
amount of 8% Senior Notes due 2012 (the "Senior Notes" and, together with the
Senior Floating Rate Notes, the "Notes").
WHEREAS, the Notes are being issued on the date hereof under that certain
Indenture (the "Indenture"), dated the date hereof, among the Depositors, the
Subsidiary Guarantors (as defined therein) party thereto and the Trustee.
WHEREAS, the Purchase Agreement provides that the gross proceeds from the
offering of the Notes (the "Offering") will be placed in escrow if the Offering
of the Notes is not concurrently consummated with the Mergers (as defined in the
Purchase Agreement), and since the Mergers are expected to be consummated on or
about October 7, 2005, such proceeds are being placed in escrow pursuant to the
terms of this Escrow Agreement.
WHEREAS, the Escrow Property (as defined herein) will be used either (a) in
connection with the consummation of the Mergers or (b) to redeem the Notes
pursuant to paragraph 8 of the Notes (the "Special Mandatory Redemption").
WHEREAS, concurrently with this Escrow Agreement, the Depositors and the
Trustee shall also enter into a Pledge and Assignment Agreement, pursuant to
which the Trustee shall have sole dominion and control over the Escrow Property
until the conditions for release of the security interest of the Trustee in the
Escrow Property have been satisfied as evidenced by the receipt by the Escrow
Agent of the deliverables set forth in Section 4(a) hereof.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Depositors jointly appoint Citibank, N.A. as the Escrow
Agent for the Escrow Property and direct Citibank, N.A. as the Escrow Agent to
maintain the Escrow Property in an account (the "Escrow Account") upon the terms
and conditions set forth in this Escrow Agreement. Citibank, N.A. hereby accepts
such appointment as the Escrow Agent for the Escrow Property and agrees to
maintain the Escrow Account and to act as the Escrow Agent for the Escrow
Property, in each case in accordance with and subject to the following
Instructions and Terms and Conditions:
I. INSTRUCTIONS:
1. Escrow Property
The property and/or funds deposited or to be deposited with Escrow Agent by
Depositors shall be as follows:
Concurrently with the closing of the sale of the Notes, the Depositors will
deposit with the Escrow Agent an aggregate amount of $951,172,000.00,
representing: (x) an amount of cash equal to the gross proceeds from the
sale of the Notes plus (y) an amount in excess of the gross proceeds, in
cash, sufficient to redeem the Notes at a price equal to 100% of the
principal amount of the Senior Floating Rate Notes and 98.688% of the
principal amount of the Senior Notes plus accrued and unpaid interest on
the Senior Floating Rate Notes and the Senior Notes at their interest rates
of 7.845% and 8.0%, respectively, to November 14, 2005 (the latest possible
date that a Special Mandatory Redemption (as defined in the Indenture) can
be carried out by the Depositors plus (z) an additional $48,302.56.
The foregoing property and/or funds, plus all interest, dividends and other
distributions and payments thereon (collectively the "Distributions")
received by Escrow Agent, less any property and/or funds distributed or
paid in accordance with this Escrow Agreement, are collectively referred to
herein as "Escrow Property."
2. Investment of Escrow Property
Escrow Agent shall invest or reinvest Escrow Property, without distinction
between principal and income, in accordance with written instructions
delivered to the Escrow Agent specifying any one or more of the following
investments from the Depositors designated herein. Initially, until
otherwise directed in writing the Escrow Property shall be invested in
Fidelity Institutional Prime Money Market Fund III (691).
The permitted investments shall be limited to money market funds having a
rating in the highest investment category granted thereby by a recognized
credit rating agency at the time of acquisition, including any fund for
which the Escrow Agent or an Affiliate of the Escrow Agent serves as an
investment advisor, administrator, shareholder servicing agent, custodian
or sub-custodian, notwithstanding that (A) the Escrow Agent or an Affiliate
of the Escrow Agent charges and collects fees and expenses from such funds
for services rendered (provided that such charges, fees and expenses are on
terms consistent with terms negotiates at arm's length) and (B) the Escrow
Agent charges and collects fees and expenses for services rendered,
pursuant to this Escrow Agreement.
The Escrow Agent shall have no obligation to invest or reinvest the Escrow
Funds if all or a portion of the Escrow Funds is deposited with the Escrow
Agent after 12:00 noon (E.S.T.) on the day of deposit. Instructions to
invest or reinvest that are received after 12:00 noon (E.S.T.) will be
treated as if received on the following business day in New York.
The Escrow Agent shall have the power to sell or liquidate the foregoing
investments or any Escrow Property whenever the Escrow Agent shall be
required to release the Escrow Property pursuant to the terms hereof. The
Escrow Agent shall have no responsibility for the sale of any Escrow
Property or for any investment losses resulting from the investment,
reinvestment or liquidation of the Escrow Property so long as invested,
reinvested or liquidated in accordance with the terms hereof. Any interest
or other income received on such investment and reinvestment of the Escrow
Property shall become part of the Escrow Property.
If a selection is not made, the Escrow Property shall remain uninvested
with no liability for interest therein.
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Any investment direction contained herein may be executed through an
affiliated broker dealer of the Escrow Agent and shall be entitled to such
usual and customary fee. Neither Citigroup nor any of its affiliates assume
any duty or liability for monitoring the investment rating.
3. Written Instruction
All instructions required under this Escrow Agreement will be delivered to
Escrow Agent in writing, in either original or facsimile form, executed by
an Authorized Person, as hereinafter defined, of Depositors. The identity
of such Authorized Persons, as well as their specimen signatures, will be
delivered to Escrow Agent in the form of Incumbency Certificates in the
form of Exhibit X-0, X-0 and A-3 and will remain in effect until Depositors
notify Escrow Agent of any change ("Authorized Persons"). In its capacity
as Escrow Agent, Escrow Agent will accept all instructions and documents
complying with the above under the indemnities provided in this Escrow
Agreement, and reserves the right to refuse to accept any instructions or
documents which fail, or appear to fail, to comply. Further to this
procedure, Escrow Agent reserves the right to telephone an Authorized
Person to confirm the details of such instructions or documents if they are
not already on file with us as standing instructions. Escrow Agent and
Depositors agree that the above constitutes a commercially reasonable
security procedure.
4. Distribution of Escrow Property
Escrow Agent is directed to hold and distribute the Escrow Property in the
following manner:
(a) In the event that the Mergers will be consummated, the Depositors
shall deliver a written notice (a "Merger Notice") to each of the
Trustee and the Escrow Agent on or before October 31, 2005,
instructing the Escrow Agent to release to the Depositors all of the
Escrow Property. The following materials shall accompany such notice:
(i) an Officer's Certificate from the Depositors certifying that:
1. the Mergers are ready to be consummated and, in connection
therewith, the Depositors will be entering into the Senior
Credit Facility (as defined in the Indenture) on or before
October 31, 2005 in substantially the manner described in
the offering memorandum relating to the Notes dated
September 21, 2005 (the "Offering Memorandum");
2. following the release of the Escrow Property, such Escrow
Property will be applied by the Depositors to fund the
Mergers substantially as summarized in the Offering
Memorandum; and
3. no Default or Event of Default has occurred and is
continuing.
(ii) a copy of the executed counterparts of a supplemental indenture
(the "Supplemental Indenture") substantially in the form of
Exhibit B hereto, pursuant to which each of the EB Guarantors (as
defined in the Purchase Agreement) guarantees the Depositors'
obligations under the Indenture and the Notes (the "EB
Guarantees") and the EB Guarantors will become parties to the
Indenture;
(iii) an executed counterpart of a joinder agreement (the "Joinder
Agreement") substantially in the form of Exhibit C hereto,
pursuant to which the EB Guarantors
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shall become parties to the Purchase Agreement and the
Registration Rights Agreement (as defined in the Purchase
Agreement); and
(iv) one or more opinions from counsel for the EB Guarantors,
reasonably satisfactory to the Representatives (as defined in the
Purchase Agreement) relating to authorization, execution and
delivery of the Joinder Agreement, authorization, execution and
delivery and enforceability of the Supplemental Indenture, and
authorization, execution and delivery and enforceability of the
EB Guarantees.
Upon receipt of a Merger Notice and the items referred to in clauses
(i) through (iv) above from the Depositors, the Escrow Agent shall
promptly, but in no event later than one (1) Business Day following
such receipt, distribute all of the Escrow Property to the Depositors,
net of (i) any outstanding expenses (including attorneys' fees)
payable to the Escrow Agent, (ii) the fee payable to Citibank, N.A.
specified in Section 6(a)(i) hereof and (iii) the fee payable to
Citigroup Global Markets Inc. specified in Section 6(a)(ii) hereof.
The Escrow Agent shall have no duty or obligation to review the
content of the items referenced in clauses (i) through (iv) above,
shall have no responsibility for their validity or sufficiency, and
shall be entitled to rely conclusively upon the written direction of
the Depositors without further inquiry.
(b) In the event that the Notes are to be redeemed pursuant to a Special
Mandatory Redemption, the Depositors shall, at least two (2) Business
Days prior to the Special Mandatory Redemption Date (as defined
below), deliver a written notice (a "Redemption Notice") to each of
the Trustee and the Escrow Agent setting forth the redemption price
(the "Special Mandatory Redemption Price") and the date on which such
Notes will be redeemed (the "Special Notice Redemption Date"). Upon
receipt of a Redemption Notice, the Escrow Agent shall:
(i) liquidate all Escrow Property then held by it no later than the
Business Day prior to the Special Mandatory Redemption Date; and
(ii) on or before 10:00 a.m. on the Special Mandatory Redemption Date,
release and deliver to the Trustee, net of any outstanding
expenses (including attorneys' fees) payable to the Escrow Agent,
the amount of Escrow Property equal to the Special Mandatory
Redemption Price (to the extent available), and promptly
following such release, the Escrow Agent shall release any
remaining Escrow Property to the Depositors.
(c) Notwithstanding Sections 4(a) and 4(b) above, if the Escrow Agent
receives a written notice (an "Acceleration Notice") from the Trustee
that the principal amount of, and accrued and unpaid interest on, the
Notes has become immediately due and payable pursuant to Section 6.02
of the Indenture (an "Acceleration Event"), the Escrow Agent shall
liquidate all Escrow Property then held by it within one (1) Business
Day after it receives such Acceleration Notice, and shall release to
the Trustee, net of any outstanding fees and expenses (including
attorneys' fees) payable to the Escrow Agent, the amount of Escrow
Property as specified by the Trustee in the Acceleration Notice (to
the extent available) for payment of the Notes. The Escrow Agent shall
release all remaining Escrow Property to the Depositors.
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5. Addresses and Account Information
Notices, instructions, other communications and payments shall be sent as
follows:
Address Account Information
If to the Depositors, to:
GSC Holdings Corp. Bank Name: BANK OF AMERICA N.A.
GameStop, Inc. ABA No.: 111 000 025
000 Xxxxxxxx Xxxxxxx Xxxx. Name: GAMESTOP TEXAS LP
Xxxxxxxxx Xxxxx 00000 Acct. No.: 4785756523
Facsimile No.: (000) 000-0000 For Credit To: GAMESTOP TEXAS LP
Telephone: (000) 000-0000
Attention: Chief Financial Officer
If to Escrow Agent, to:
Citibank, N.A., Bank Name: Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx XXX No.: 021 000 089
New York, New York 10013 Acct. Name: Escrow Concentration
Facsimile No.: (000) 000-0000 Acct. No.: 00000000
Telephone: (000) 000-0000 For Credit To: 795744/GameStop Escrow
Attn: Xxxx Xxxxx Xxxxxxxx
If to the Trustee, to:
Citibank, N.A., Bank Name: Citibank, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx XXX No.: 021 000 089
New York, New York 10013 Acct. Name: Corp. Trust Inc. Fed
Wire
Facsimile No.: (000) 000-0000 Acct. No.: 00000000
Telephone: (000) 000-0000 Reference: GameStop Indenture
Attn: Xxxxx Xxxxxxxxxx
6. Distribution of Escrow Property Upon Termination
Upon termination of this Escrow Agreement, Escrow Property then held
hereunder shall be distributed as follows:
(a) If Escrow Property is to be released pursuant to Section 4(a) above,
then the Escrow Agent shall wire the following amounts to the
following recipients:
(i) $7,125,000 to Citibank, N.A. at:
Bank Name: Citibank, N.A.
ABA No.: 021 000 089
Acct. Name: CITICORP INDUSTRIAL CREDIT
Acct. No.: 3885-8061
Reference: GameStop
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(ii) $13,550,000 to Citigroup Global Markets Inc. at:
Bank Name: XX XXXXXX XXXXX BANK CHICAGO ILL
Location: Chicago, IL
ABA No.: 071 000 013
Acct. Name: CITIGROUP GLOBAL MARKETS INC.
Acct. No.: 5143322
Attn: Xxxx Xxxxxx 000 000 0000
Reference: GameStop, CUSIP #s 00000XXX0/X0000XXX0/00000XXX0
/X0000XXX0
(iii) all remaining amounts of Escrow Property to the Depositors.
(b) If Escrow Property is to be released pursuant to Section 4(b) or 4(c)
above, the Escrow Agent shall wire an amount equal to the amount
specified in the Redemption Notice or Acceleration Notice, as
applicable, to the Trustee, and shall wire all such remaining amounts,
if any, to the Depositors.
7. Compensation
(a) The Depositors agree to pay the Escrow Agent's compensation in
accordance with the fee schedule attached as Exhibit D and made a part
hereof. In addition, Depositors agree to reimburse the Escrow Agent
for all reasonable expenses, disbursements and advances incurred or
made by the Escrow Agent in performance of its duties hereunder
(including reasonable fees, expenses and disbursements of its
counsel). The obligations contained in this paragraph (a) shall be a
joint and several obligation of the Depositors.
(b) Depositors shall be responsible for and shall reimburse Escrow Agent
upon demand for all expenses and disbursements incurred or made by
Escrow Agent in connection with this Escrow Agreement.
II. TERMS AND CONDITIONS
1. Escrow Property shall be held by the Escrow Agent either directly or
through the Federal Reserve/Treasury Book-Entry System for United States
and federal agency securities (the "Book-Entry System"), The Depository
Trust Company, a clearing agency registered with the Securities and
Exchange Commission ("DTC"), or through any other clearing agency or
similar depository (a "Clearing Agency"). The Escrow Agent shall have no
responsibility and shall not be liable for ascertaining or acting upon any
calls, conversions, exchange offers, tenders, interest rates changes, or
similar matters relating to securities held at DTC or with any Clearing
Agency unless the Escrow Agent shall have received actual and timely notice
of the same, nor shall the Escrow Agent have any responsibility or
liability for the actions or omissions to act of the Book-Entry System, DTC
or any Clearing Agency.
2. The duties, responsibilities and obligations of Escrow Agent shall be
limited to those expressly set forth herein and no duties, responsibilities
or obligations shall be inferred or implied. Escrow Agent shall not be
subject to, nor required to comply with, any other agreement between or
among any or all of the Depositors or to which any Depositor is a party,
even though reference thereto may be made herein, or to comply with any
direction or instruction (other than those contained herein or delivered in
accordance with this Escrow Agreement) from any Depositor or an entity
acting on its behalf. Escrow Agent shall not be required to expend or risk
any of its own
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funds or otherwise incur any financial or other liability in the
performance of any of its duties hereunder.
3. This Escrow Agreement is for the exclusive benefit of the parties hereto
and their respective permitted successors hereunder, and shall not be
deemed to give, either express or implied, any legal or equitable right,
remedy, or claim to any other entity or person whatsoever except as
provided in paragraph 14 hereof with respect to the resignation of the
Escrow Agent.
4. If at any time Escrow Agent is served with any judicial or administrative
order, judgment, decree, writ or other form of judicial or administrative
process which in any way affects the Escrow Property (including but not
limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of the Escrow Property),
Escrow Agent is authorized to comply therewith in any manner it or legal
counsel of its own choosing deems appropriate; and if Escrow Agent complies
with any such judicial or administrative order, judgment, decree, writ or
other form of judicial or administrative process, Escrow Agent shall not be
liable to any of the parties hereto or to any other person or entity even
though such order, judgment, decree, writ or process may be subsequently
modified or vacated or otherwise determined to have been without legal
force or effect.
5. (a) Escrow Agent shall not be liable for any action taken or omitted
or for any loss or injury resulting from its actions or its
performance or lack of performance of its duties hereunder in the
absence of gross negligence or willful misconduct on its part. In no
event shall Escrow Agent be liable (i) for acting in accordance with
or relying upon any instruction, notice, demand, certificate or
document from any Depositor or any entity acting on behalf of any
Depositor, (ii) for any indirect, consequential, punitive or special
damages, regardless of the form of action and whether or not any such
damages were foreseeable or contemplated, (iii) for the acts or
omissions of its nominees, correspondents, designees, agents,
subagents or subcustodians, (iv) for the investment or reinvestment of
any cash held by it hereunder, in each case in good faith, in
accordance with the terms hereof, including without limitation any
liability for any delays (not resulting from its gross negligence or
willful misconduct) in the investment or reinvestment of the Escrow
Property, or any loss of interest incident to any such delays, or (v)
for an amount in excess of the value of the Escrow Property, valued as
of the date of deposit, but only to the extent of direct money
damages.
(b) If any fees, expenses or costs incurred by, or any obligations owed
to, Escrow Agent or its counsel hereunder are not promptly paid when
due, Escrow Agent may reimburse itself therefore from the Escrow
Property and may sell, convey or otherwise dispose of any Escrow
Property for such purpose. The Escrow Agent may in its sole discretion
withhold from any distribution of Escrow Property an amount of Escrow
Property it believes would, upon sale or liquidation, produce proceeds
equal to any unpaid amounts to which Escrow Agent is entitled to
hereunder.
(c) As security for the due and punctual performance of any and all of
Depositor's, or Depositors', as the case may be, obligations to Escrow
Agent hereunder, now or hereafter arising, Depositors, individually
and collectively, hereby pledge, assign and grant to Escrow Agent a
continuing security interest in, and a lien on, the Escrow Property
and all Distributions thereon or additions thereto (whether such
additions are the result of deposits by Depositors or the investment
of Escrow Property). The security interest of Escrow Agent shall at
all times be valid, perfected and enforceable by Escrow Agent against
Depositors and all third parties in accordance with the terms of this
Escrow Agreement.
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(d) Escrow Agent may consult with legal counsel of its own choosing at the
expense of the Depositors as to any matter relating to this Escrow
Agreement, and Escrow Agent shall not incur any liability in acting in
good faith in accordance with any advice from such counsel.
(e) Escrow Agent shall not incur any liability for not performing any act
or fulfilling any duty, obligation or responsibility hereunder by
reason of any occurrence beyond the control of Escrow Agent (including
but not limited to any act or provision of any present or future law
or regulation or governmental authority, any act of God, war or
terrorism, or the unavailability of the Federal Reserve Bank wire or
facsimile or other wire or communication facility).
(f) The Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered
to it hereunder without being required to determine the authenticity
or the correctness of any fact stated therein or the propriety or
validity or the service thereof. The Escrow Agent may act in reliance
upon any instrument or signature believed by it to be genuine and may
assume that any person purporting to give receipt or advice to make
any statement or execute any document in connection with the
provisions hereof has been duly authorized to do so.
6. Unless otherwise specifically set forth herein Escrow Agent shall proceed
as soon as practicable to collect any checks or other collection items at
any time deposited hereunder. Should Escrow Agent in its sole discretion or
otherwise credit Distributions before the same are finally collected, such
credits shall be provisional and may be reversed by Escrow Agent without
notice until such time as the same shall be finally collected. All such
collections shall be subject to Escrow Agent's usual collections practices
or terms regarding items received by Escrow Agent for deposit or
collection. Escrow Agent shall not be required, or have any duty, to notify
anyone of any payment or maturity under the terms of any instrument
deposited hereunder, nor to take any legal action to enforce payment of any
check, note or security deposited hereunder or to exercise any right or
privilege which may be afforded to the holder of any such security.
7. Escrow Agent shall provide to Depositors monthly statements identifying
transactions, transfers or holdings of Escrow Property and each such
statement shall be deemed to be correct and final upon receipt thereof by
the Depositors unless the Depositor notifies Escrow Agent in writing to the
contrary within thirty (30) business days of the date of such statement.
8. Escrow Agent shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities
deposited hereunder, or for any description therein, or for the identity,
authority or rights of persons executing or delivering or purporting to
execute or deliver any such document, security or endorsement. The Escrow
Agent shall not be called upon to advise any party as to the wisdom in
selling or retaining or taking or refraining from any action with respect
to any securities or other property deposited hereunder.
9. The Escrow Agent shall not be under any duty to give the Escrowed Property
held by it hereunder any greater degree of care than it gives its own
similar property and shall not be required to invest any funds held
hereunder except as directed in this Escrow Agreement. Uninvested funds
held hereunder shall not earn or accrue interest.
10. When the Escrow Agent is instructed in writing to deliver securities
against payment, or to effect payment against delivery, delivery and
receipt of payment may not be completed simultaneously, and each Depositor
agrees that the Escrow Agent shall incur no liability for any credit risk
in-
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volved, and that the Escrow Agent may deliver and receive securities, and
arrange for payments to be made and received, in accordance with customs
prevailing from time to time among brokers or dealers in such securities.
11. At any time the Escrow Agent may request an instruction in writing in
English from the Depositors and may, at its own option, include in such
request the course of action it proposes to take and the date on which it
proposes to act, regarding any matter arising in connection with its duties
and obligations hereunder. The Escrow Agent shall not be liable for acting
in accordance with such a proposal on or after the date specified therein,
provided that the specified date shall be at least one business day after
the Depositors receive the Escrow Agent's request for instructions and its
proposed course of action, and provided further that, prior to so acting,
the Escrow Agent has not received the written instructions requested.
12. Notices, instructions or other communications shall be in writing in
English and shall be given to the address set forth in the "Addresses"
provision herein (or to such other address as may be substituted therefore
by written notification to Escrow Agent or Depositors). Notices to Escrow
Agent shall be deemed to have been given when actually received by Escrow
Administration (Global Agency Trust). Escrow Agent is authorized to comply
with and rely upon any notices, instructions or other communications
believed by it to have been sent or given by Depositors or by a person or
persons authorized by Depositors. Whenever under the terms hereof the time
for giving a notice or performing an act falls upon a Saturday, Sunday, or
a banking holiday in New York, such time shall be extended to the next day
on which the Escrow Agent is open for business.
13. Depositors, jointly and severally, shall be liable for and shall reimburse
and indemnify Escrow Agent (and any predecessor Escrow Agent) and hold
Escrow Agent harmless from and against any and all claims, losses, actions,
liabilities, costs, damages or expenses (including reasonable attorneys'
fees and expenses) (collectively "Losses") arising from or in connection
with its administration of this Escrow Agreement, provided, however, that
nothing contained herein shall require Escrow Agent to be indemnified for
Losses caused by its own gross negligence or own willful misconduct for
which Escrow Agent has assumed liability pursuant to preceding subparagraph
(a) of paragraph 5 hereof. In addition, when the Escrow Agent acts on any
information, instructions, communications, (including, but not limited to,
communications with respect to the delivery of securities or the wire
transfer of funds) sent by telephone, telex or facsimile, the Escrow Agent,
absent gross negligence, shall not be responsible or liable in the event
such communication is not an authorized or authentic communication of the
Depositors or is not in the form the Depositors sent or intended to send
(whether due to fraud, distortion or otherwise). The Depositors shall
jointly and severally indemnify the Escrow Agent against any loss,
liability, claim or expense (including legal fees and expenses) it may
incur with its acting in accordance with any such communication. This
paragraph shall survive the termination of this Escrow Agreement or the
removal of the Escrow Agent.
14. (a) Depositors may remove Escrow Agent at any time by giving to Escrow
Agent thirty (30) calendar days' prior notice in writing signed by all
Depositors. Escrow Agent may resign at any time by giving the
Depositors fifteen (15) calendar days' prior written notice thereof.
(b) Within ten (10) calendar days after giving the foregoing notice of
removal to Escrow Agent or receiving the foregoing notice of
resignation from Escrow Agent, all Depositors shall jointly agree on
and appoint a successor Escrow Agent. If a successor Escrow Agent has
not accepted such appointment by the end of such 10-day period, Escrow
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Agent may, in its sole discretion, deliver the Escrow Property to the
Depositors at the address provided herein or may apply to a court of
competent jurisdiction for the appointment of a successor Escrow Agent
or for other appropriate relief. The costs and expenses (including
reasonable attorneys' fees and expenses) incurred by Escrow Agent in
connection with such proceeding shall be paid by, and be deemed a
joint and several obligation of, the Depositors. In the event of any
such resignation or removal, the Escrow Agent shall have no further
obligation with respect to the Escrow Property.
(c) Upon receipt of the identity of the successor Escrow Agent, Escrow
Agent shall either deliver the Escrow Property then held hereunder to
the successor Escrow Agent, less Escrow Agent's fees, costs and
expenses or other obligations owed to Escrow Agent, or hold such
Escrow Property (or any portion thereof), pending distribution, until
all such fees, costs and conclusively expenses or other obligations
are paid.
(d) Upon delivery of the Escrow Property to the success or Escrow Agent,
Escrow Agent shall have no further duties, responsibilities or
obligations hereunder.
15. (a) In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by Escrow Agent
hereunder, Escrow Agent may, in its sole discretion, refrain from
taking any action other than retain possession of the Escrow Property,
unless Escrow Agent receives written instructions, signed by all
Depositors, which eliminates such ambiguity or uncertainty.
(b) In the event of any dispute between or conflicting claims by or among
the Depositors and/or any other person or entity with respect to any
Escrow Property, Escrow Agent shall be entitled, in its sole
discretion, to refuse to comply with any and all claims, demands or
instructions with respect to such Escrow Property so long as such
dispute or conflict shall continue, and Escrow Agent shall not be or
become liable in any way to the Depositors for failure or refusal to
comply with such conflicting claims, demands or instructions. Escrow
Agent shall be entitled to refuse to act until, in its sole
discretion, either (i) such conflicting or adverse claims or demands
shall have been determined by a final order, judgment or decree of a
court of competent jurisdiction, which order, judgment or decree is
not subject to appeal, or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to Escrow Agent or (ii)
Escrow Agent shall have received security or an indemnity satisfactory
to it sufficient to hold it harmless from and against any and all
Losses which it may incur by reason of so acting. Any court order,
judgment or decree shall be accompanied by a legal opinion by counsel
for the presenting party, satisfactory to the Escrow Agent, to the
effect that said order, judgment or decree represents a final
adjudication of the rights of the parties by a court of competent
jurisdiction, and that the time for appeal from such order, judgment
or decree has expired without an appeal having been perfected. The
Escrow Agent shall act on such court order and legal opinions without
further question. Escrow Agent may, in addition, elect, in its sole
discretion, to commence an interpleader action or seek other judicial
relief or orders as it may deem, in its sole discretion, necessary.
The costs and expenses (including reasonable attorneys' fees and
expenses) incurred in connection with such proceeding shall be paid
by, and shall be deemed a joint and several obligation of, the
Depositors.
(c) The Escrow Agent shall have no responsibility for the contents of any
writing of the arbitrators or any third party contemplated herein as a
means to resolve disputes and may conclusively rely without any
liability upon the contents thereof.
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16. This Escrow Agreement shall be interpreted, construed, enforced and
administered in accordance with the internal substantive laws (and not
the choice of law rules) of the State of New York. Each of the
Depositors hereby submits to the personal jurisdiction of, and each
agrees that all proceedings relating hereto shall be brought in,
courts located within the City and State of New York. Each of the
Depositors hereby waives the right to trial by jury and to assert
counterclaims in any such proceedings. To the extent that in any
jurisdiction any Depositor may be entitled to claim, for itself or its
assets, immunity from suit, execution, attachment (whether before or
after judgment) or other legal process, each hereby irrevocably agrees
not to claim, and hereby waives, such immunity. Each Depositor waives
personal service of process and consents to service of process by
certified or registered mail, return receipt requested, directed to it
at the address last specified for notices hereunder, and such service
shall be deemed completed ten (10) calendar days after the same is so
mailed. Any court order shall be accompanied by a legal opinion by
counsel for the presenting party satisfactory to the Escrow Agent to
the effect that said opinion is final and non-appealable. The Escrow
Agent shall act on such court order and legal opinions without further
question.
17. (a) The Escrow Agent does not have any interest in the Escrowed
Property deposited hereunder but is serving as escrow holder only and
having only possession thereof. The Depositors shall pay or reimburse
the Escrow Agent upon request for any transfer taxes or other taxes
relating to the Escrowed Property incurred in connection herewith and
shall indemnify and hold harmless the Escrow Agent from any amounts
that it is obligated to pay in the way of such taxes. Any payments of
income from this Escrow Account shall be subject to withholding
regulations then in force with respect to United States taxes. The
Depositors will provide the Escrow Agent with appropriate W-9 forms
for tax I.D., number certifications, or W-8 forms for non-resident
alien certifications. This paragraph shall survive notwithstanding any
termination of this Escrow Agreement or the resignation or removal of
the Escrow Agent.
(b) IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To
help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions
to obtain, verify, and record information that identifies each person
who opens an account. When an account is opened, we will ask for
information that will allow us to identify relevant parties.
18. Except as otherwise permitted herein, this Escrow Agreement may be modified
only by a written amendment signed by all the parties hereto, and no waiver
of any provision hereof shall be effective unless expressed in a writing
signed by the party to be charged.
19. The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any such right or remedy shall
not preclude or inhibit the exercise of any additional rights or remedies.
The waiver of any right or remedy hereunder shall not preclude the
subsequent exercise of such right or remedy.
20. Each Depositor hereby represents and warrants (a) that this Escrow
Agreement has been duly authorized, executed and delivered on its behalf
and constitutes its legal, valid and binding obligation and (b) that the
execution, delivery and performance of this Escrow Agreement by the
Depositors do not and will not violate any applicable law or regulation.
21. The invalidity, illegality or unenforceability of any provision of this
Escrow Agreement shall in no way effect the validity, legality or
enforceability of any other provision; and if any provision is
-11-
held to be enforceable as a matter of law, the other provisions shall not
be affected thereby and shall remain in full force and effect.
22. This Escrow Agreement shall constitute the entire agreement of the parties
with respect to the subject matter and supersedes all prior oral or written
agreements in regard thereto.
23. This Escrow Agreement shall terminate upon the distribution of all Escrow
Property from the account established hereunder. The provisions of these
Terms and Conditions and paragraph 6 of Part I shall survive termination of
this Escrow Agreement and/or the resignation or removal of the Escrow
Agent.
24. No printed or other material in any language, including prospectuses,
notices, reports, and promotional material which mentions "Citibank, N.A."
by name or the rights, powers, or duties of the Escrow Agent under this
Escrow Agreement shall be issued by any other parties hereto, or on such
party's behalf, without the prior written consent of Escrow Agent.
25. The headings contained in this Escrow Agreement are for convenience of
reference only and shall have no effect on the interpretation or operation
hereof.
26. This Escrow Agreement may be executed by each of the parties hereto in any
number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all such counterparts
shall together constitute one and the same agreement.
27. No party may assign any of its rights or obligations under this Escrow
Agreement without the written consent of the other parties.
28. Any corporation into which the Escrow Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Escrow Agent shall be a
party, or any corporation succeeding to the business of the Escrow Agent
shall be the successor of the Escrow Agent hereunder without the execution
or filing of any paper with any party hereto or any further act on the part
of any of the parties hereto except where an instrument of transfer or
assignment is required by law to effect such succession, anything herein to
the contrary notwithstanding.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties have caused this Escrow Agreement
to be executed by a duly authorized officer as of the day and year first written
above.
GSC HOLDINGS CORP., GAMESTOP, INC.,
as Depositor as Depositor
By: By:
------------------------- --------------------------
Name: Name:
Title: Title:
CITIBANK, N.A., CITIBANK, N.A.,
as Trustee as Escrow Agent
By: By:
------------------------- --------------------------
Name: Name: Xxxx Xxxxx Xxxxxxxx
Title: Title: Assistant Vice President
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EXHIBIT A-1
FORM OF INCUMBENCY CERTIFICATE
OF GSC HOLDINGS CORP.
The undersigned certifies that [he][she] is the Secretary or Assistant
Secretary of each of GSC Holdings Corp., a Delaware corporation (the
"Company"), and as such [he][she] is authorized to execute this Certificate
and further certifies that the following persons have been elected or
appointed, are qualified, and are now acting as officers of the Company in
the capacity or capacities indicated below, and that the signatures set
forth opposite their respective names are their true and genuine
signatures. [He][She] further certifies that any of the persons listed
below is authorized individually to sign agreements and give written
instructions with regard to any matters pertaining to the Escrow Agreement
dated September 28, 2005 and the appointment of Citibank N.A. as Escrow
Agent (an "Authorized Person"):
Name Title / Phone Signature
/
-------------------- ----------------------- -------------------------
/
-------------------- ----------------------- -------------------------
/
-------------------- ----------------------- -------------------------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal of the Company this 28th day of September, 2005.
-------------------
Name:
Title:
Call Back Authorized Individuals:
The below listed persons (must list at least two individuals) have been
designated Call Back Authorized Individuals of GSC Holdings Corp. and will
be notified by Citibank N.A. upon the release of Escrow Property from the
escrow accounts unless an original "Standing or Predefined Instruction"
letter is on file with Escrow Agent.
Name: Telephone #:
---------------------------------- ---------------------------------------
---------------------------------- ---------------------------------------
EXHIBIT A-2
FORM OF INCUMBENCY CERTIFICATE
OF GAMESTOP, INC.
The undersigned certifies that [he][she] is the Secretary or Assistant
Secretary of each of GameStop, Inc., a Minnesota corporation (the
"Company"), and as such [he][she] is authorized to execute this Certificate
and further certifies that the following persons have been elected or
appointed, are qualified, and are now acting as officers of the Company in
the capacity or capacities indicated below, and that the signatures set
forth opposite their respective names are their true and genuine
signatures. [He][She] further certifies that any of the persons listed
below is authorized individually to sign agreements and give written
instructions with regard to any matters pertaining to the Escrow Agreement
dated September 28, 2005 and the appointment of Citibank N.A. as Escrow
Agent (an "Authorized Person"):
Name Title / Phone Signature
/
-------------------- ----------------------- -------------------------
/
-------------------- ----------------------- -------------------------
/
-------------------- ----------------------- -------------------------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal of the Company this 28th day of September, 2005.
---------------------
Name:
Title:
Call Back Authorized Individuals:
The below listed persons (must list at least two individuals) have been
designated Call Back Authorized Individuals of GameStop, Inc. and will be
notified by Citibank N.A. upon the release of Escrow Property from the
escrow accounts unless an original "Standing or Predefined Instruction"
letter is on file with Escrow Agent.
Name: Telephone #:
---------------------------------- ---------------------------------------
---------------------------------- ---------------------------------------
EXHIBIT A-3
LIST OF AUTHORIZED PERSONS TO ACT INDIVIDUALLY
FOR CITIBANK, N.A. in its capacity as TRUSTEE
FOR SENDING INSTRUCTIONS TO
Citibank, N.A., as Escrow Agent
------------------- ------------------- ------------------- -------------------
SAMPLE
NAME TITLE PHONE SIGNATURE
------------------- ------------------- ------------------- -------------------
(b)
------------------- ------------------- ------------------- -------------------
(c)
------------------- ------------------- ------------------- -------------------
(d)
------------------- ------------------- ------------------- -------------------
(e)
------------------- ------------------- ------------------- -------------------
(f)
------------------- ------------------- ------------------- -------------------
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
[to be provided under separate cover]
EXHIBIT C
FORM OF JOINDER AGREEMENT
[to be provided under separate cover]
EXHIBIT D
FEE SCHEDULE
[to be provided under separate cover]
