Exhibit 10.2
PROMISSORY NOTE
$74,019,991.80 New York, New York
October 1, 2004
FOR VALUE RECEIVED, GameStop Corp., a Delaware corporation ("Payor"),
promises to pay to the order of B&N GameStop Holding Corp., a Delaware
corporation ("Payee"), in lawful money of the United States of America and in
immediately available funds, (i) the sum of $74,019,991.80 (Seventy-Four Million
Nineteen Thousand Nine Hundred Ninety-One Dollars and Eighty Cents), payable
$37,500,000 on January 14, 2005 and the remaining $36,519,991.80 in three equal
installments on the first, second and third anniversaries of the date hereof,
respectively (each, a "Payment Date"), and (ii) interest on the outstanding
unpaid principal amount due hereunder on each Payment Date at the interest rate
of 5.5% per annum.
This Note may be voluntarily prepaid in whole or in part without premium or
penalty and without the prior consent of Payee, provided that concurrently
therewith, all accrued interest under this Note is paid through the date of such
prepayment.
Payor hereby waives presentment for payment, notice of dishonor, protest,
notice of protest and any other demand, notice or formality with respect to this
Note.
This Note is the Promissory Note referred to in the Stock Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), pursuant to
which Payee has sold to Payor 6,107,338 shares of Payor's Class B Common Stock.
In the event of the nonpayment of any principal or interest payment due
hereunder, which continues for more than thirty (30) days after any Payment
Date, then at the option of Payee by written notice to Payor, all amounts then
remaining unpaid on this Note may be declared to be immediately due and payable.
In addition, this Note shall automatically become due, and the outstanding
principal amount of this Note, together with all accrued and unpaid interest
thereon, shall automatically become payable without any action on the part of
the Payee, (a) upon the written request of Payee in the event that any
representation or warranty made by the Payor in the Purchase Agreement shall
prove to have been incorrect in any material respect on or after the date
hereof, (b) if Payor is involved in a proceeding relating to, or which may
result in, a forfeiture of all or substantially all of Payor's assets, or (c) if
the Payor (i) shall generally not, or be unable to, or shall admit in writing
its inability to, pay its debts as its debts become due, (ii) shall commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation, (iii) shall have had any such petition filed,
or any such proceeding shall have been commenced against it, in which an
adjudication is made or order for relief is entered or which remains undismissed
for a period of at least 30 days, (iv) shall have had a receiver, custodian or
trustee appointed for all or a substantial part of its property, or (v) takes
any action effectuating, approving or consenting to any of the events described
in the foregoing clauses (i) through (iv).
Payor agrees to pay all reasonable costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred by Payee in collecting or
enforcing payment of this Note in accordance with its terms.
If any payment under this Note becomes due and payable on a Saturday,
Sunday or a legal holiday under the laws of the State of New York, the date for
payment shall be extended to the next succeeding business day, provided that any
such payment bearing interest shall continue to accrue interest until paid.
All notices and other communications hereunder must be in writing and will
be deemed to have been duly given or made as follows: (i) if sent by registered
or certified mail in the United States, return receipt requested upon receipt,
five business days after being so sent; (ii) if sent by reputable overnight air
courier, two business days after being so sent; (iii) if sent by telecopy
transmission, with a copy mailed on the same day in the manner provided in
clause (i) or (ii) above, when transmitted and receipt is confirmed by
telephone; or (iv) if otherwise actually personally delivered, when delivered,
and shall be sent or delivered to the respective addresses of the Payee and the
Payor set forth in the Purchase Agreement or such other address as Payee or
Payor, as the case may be, shall have given to the other by notice in accordance
herewith.
This Note may be modified or cancelled only by the written agreement of
Payor and Payee. No failure on the part of Payee to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law. This Note shall be binding on Payor and its successors and
assigns and shall inure to the benefit of Payee and its successors and assigns,
except that Payor may not delegate any of its obligations hereunder without the
prior written consent of Payee. Notwithstanding anything to the contrary
contained herein, Payee shall be entitled to assign its rights hereunder in its
sole and absolute discretion.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York. Payor hereby irrevocably and
unconditionally submits to the nonexclusive personal jurisdiction of the Supreme
Court of the State of New York sitting in New York County and to the United
States District Court for the Southern District of New York, and any appellate
court thereof in any action or proceeding arising out of or relating to this
Note or for the recognition or enforcement of any judgment arising out of or
relating to this Note, and hereby waives any objection as to venue and forum non
conveniens with respect to any such actions brought in any of such courts.
Process in any such action or proceeding may be served by certified mail on the
Payor anywhere in the world where Payor is found and may also be served upon
Payor in the manner provided for the service of process under the laws of the
State of New York or the laws of the place or jurisdiction where such party is
found.
GAMESTOP CORP.
By:/s/ David W. Carlson
----------------------------
David W. Carlson
Executive Vice President and
Chief Financial Officer