<Page>
"[*]" DENOTES CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 10.56
CONTRACT NO.: 69931
XBOX(TM) LIVE DISTRIBUTION AMENDMENT
TO THE
XBOX(TM) PUBLISHER LICENSING AGREEMENT
This Xbox(TM) Live Distribution Amendment
(the "Amendment") is entered into and
effective as of the latter of the two
signature dates below (the "Effective
Date") by and between MICROSOFT LICENSING,
GP a Nevada general partnership
("Microsoft"), and MIDWAY HOME
ENTERTAINMENT INC. ("Licensee"), and supplements
the Xbox(TM) Publisher License Agreement
between the parties dated as of October
30, 2000 ("PLA").
RECITALS
A. Whereas,
Microsoft and its affiliated companies develop and license
a computer game system, known as the
Xbox(TM) game system; and
B. Whereas,
Microsoft and its affiliated companies intend to develop
and maintain a proprietary online service
accessible via the Xbox(TM) game
system; and
C. Whereas,
Licensee is an experienced publisher of software products
and is developing and publishing one or
more software products to run on the
Xbox(TM) game system pursuant the parties'
PLA; and
D. Whereas,
Licensee wishes to participate in the Xbox Live service by
making such software products available to
subscribers of such service.
Accordingly, for and in consideration of
the mutual covenants and conditions
contained herein, and for other good and
valuable consideration, receipt of
which each party hereby acknowledges,
Microsoft and Licensee agree as follows:
1. DEFINITIONS;
INTERPRETATION
1.1 Except as
expressly provided otherwise in this Amendment,
capitalized terms shall have the same
meanings ascribed to them in the PLA.
1.2 The terms of the
PLA are incorporated by reference, and except and
to the extent expressly modified by this
Amendment, the PLA shall remain in full
force and effect and is hereby ratified and
confirmed.
1.3 "XBOX LIVE"
shall mean the proprietary online service offered by
Microsoft to End Users. The Xbox Live
service may change from time to time, and
may include, without limitation, the Base
Service and Premium Service(s).
1.4 "ONLINE
FEATURES" shall mean a Software Title's content, features
and services that will be available to End
Users via Xbox Live. Online Features
may be Base Online Features and/or Premium
Online Features.
1.5 "BASE SERVICE"
shall mean a base level of Xbox Live services
available to End Users for a fee payable to
Microsoft or its affiliates. The
Base Service, and the terms and conditions
for Licensee's Base Online Features,
is further defined in this Amendment and
the Xbox Guide.
<Page>
1.6 "BASE ONLINE
FEATURES" shall mean a Software Title's Online
Features that are available to End Users as
part of the Base Service.
1.7 "PREMIUM
SERVICE(S)" shall mean Xbox Live services (other than the
Base Service) available to End Users for
additional fee(s) above and beyond the
Base Service fee. The Premium Service, and
the terms and conditions for
Licensee's Premium Online Features, is
further defined in this Amendment and the
Xbox Guide.
1.8 "PREMIUM ONLINE
FEATURES" shall mean a Software Title's Online
Features that are available to End Users as
part of the Premium Service.
1.9 "END USER" shall
mean any individual or entity that accesses and
uses Xbox Live, whether as a guest of a
Subscriber, via a user account
established by a Subscriber, or
otherwise.
1.10
"SUBSCRIBER" shall mean an End User that establishes a
subscription
billing account to Xbox Live.
1.11
"COMMERCIAL RELEASE" shall mean (a) with respect to Xbox, the
first
commercial availability of Xbox Live in the
United States to the general public,
and (b) with respect to a the Online
Features of a Software Title, the first
availability of such features via Xbox Live
to the general public.
1.12
"TRIAL
VERSION" shall mean a time-limited or feature-limited
version of a Software Title's Online
Features that is available to End Users
only to advertise or promote the applicable
Software Title, and is further
defined in this Amendment and the Xbox
Guide.
1.13
"ONLINE
TERRITORY" shall be determined on an Online
Feature-by-Online Feature basis, and shall
mean such geographic regions or
countries as may be specified in writing
when the Concept of the applicable
Online Feature is approved. The Online
Territories for Online Features of a
Software Title may differ in scope from the
Territories for the Software Title's
Finished Product Units.
2. DEVELOPMENT; DELIVERY;
APPROVAL
2.1 DEVELOPMENT
SUPPORT. Microsoft shall provide Licensee a reasonable
level of support in connection with the
development and testing of Licensee's
Online Features in a manner consistent with
the guidelines and requirements set
forth in the Xbox Guide.
2.2 APPROVAL
PROCESS. The approval process for Online Features is as
set forth in the PLA (i.e., the stages for
Concept approval, pre-Certification,
Certification and Marketing Materials shall
apply to all aspects of the Software
Title, including without limitation, its
Online Features). Additional approval
criteria specific to Online Features are as
set forth below and in the Xbox
Guide.
2.2.1
CONCEPT. Licensee's Concept submission form shall include
a description of the Online Features,
including, without limitation, a
description of any incremental content
(i.e., to be made available following the
Commercial Release of the Finished Product
Units of the Software Title) and
proposed distribution schedule. Licensee
shall designate, in its sole
discretion, which Online Features shall be
included in the Base Service and in
the Premium Service. Subject to the
foregoing, Microsoft may require that all
Online Feature Concept submissions include,
at a minimum, certain basic
functionality necessary to achieve
certification (e.g., all features must
support user authentication), and any such
requirements shall be set forth in
the Xbox Guide. Licensee may additionally
propose Online Features at any time
after a Software Title Concept has been
approved, in which case Licensee shall
deliver to Microsoft a separate Concept
submission addendum form for each Online
Feature proposal. Evaluation of the
proposed Online Features will be based on
criteria including, but not limited to, the
criteria set forth in the Xbox
Guide. To the extent Licensee desires that
Online Features be available in the
Territory comprising European Union
countries, the EU Approval Option shall not
apply.
2
<Page>
2.2.2
CLIENT-SERVER GAMES. The Online Features of certain
Software Titles may require that all or
part of the Online Features be hosted on
game server(s) ("Game Servers"). Such Game
Servers shall be maintained and
operated by Microsoft or its affiliate
unless Licensee desires to maintain and
operate (or have a third party maintain and
operate) its own game server(s) for
Premium Online Services ("Licensee Game
Servers"), in which case Licensee Game
Servers must be Certified in accordance
with Section 2.2.5 below; provided that
Licensee shall enter into an agreement with
such third party that maintains and
operates its game server(s) ("3rd Party
Host") causing the 3rd Party Host to be
bound by the provisions of this Amendment.
Licensee shall obtain Microsoft's
written consent as to such 3rd Party Host,
such consent not to be unreasonably
withheld. Notwithstanding the foregoing,
given the necessity of creating a
secure and reliable online service to
ensure the success of the Xbox Live
platform, the option for Licensee to
maintain and operate (or have a third party
maintain and operate) its own Licensee Game
Servers may not be available until
at least one year following the Online
Commercial Release of Xbox Live. All
maintenance and operation of Game Servers,
if any, for Base Online Features
shall be conducted solely by Microsoft or
its affiliate. All information
regarding Licensee Game Servers and Game
Server software disclosed by Licensee
or its affiliate or contractor shall be
considered to be related to Licensee's
video games for purposes of the
Non-Disclosure Agreement, and Xbox Live shall be
considered part of the Xbox program for
purposes of the Non-Disclosure
Agreement.
2.2.3
PRE-CERTIFICATION. At the Pre-Certification submission,
Licensee shall deliver to Microsoft a
version of the Online Features, and such
other content as may be required by the
Xbox Guide. Microsoft shall also conduct
certain testing of the Online Features,
which may vary depending on the nature
of the Online Features. If applicable,
Licensee shall also provide access to
Licensee Game Servers and/or the Game
Server software for Pre-Certification
testing in accordance with the Xbox Guide.
Online Features must receive
satisfactory Pre-Certification testing
results prior to the Software Title
proceeding to Beta Trials.
As set forth in the PLA, all feedback
provided by Microsoft to Licensee as a
result of Microsoft's Pre-Certification
testing shall be advisory in nature.
However, Licensee acknowledges that the
Pre-Certification and Certification
submissions evaluate different aspects of
the Online Features and at different
stages in Licensee's development schedule
and therefore satisfactory feedback
regarding Pre-Certification is not an
indication that the Online Features will
be approved following the Certification
submission. Licensee shall be given the
opportunity to resubmit Online Features
that fail the Pre-Certification approval
process. In Microsoft's discretion,
Licensee may be charged a reasonable fee
designed to offset the costs associated
with the Pre-Certification testing of
Software Titles in the event of
resubmission(s).
2.2.4 BETA
TRIALS. If the Pre-Certification submission receives
satisfactory results, Microsoft may require
that internal and public beta
testing be conducted by or on behalf of
Microsoft (the "Beta Trials"). All
feedback provided by Microsoft to Licensee
as a result of the Beta Trials shall
be advisory in nature, and satisfactory
feedback from the Beta Trials is not an
indication that the Online Features will be
approved following the Certification
submission. Likewise, Beta Trial feedback
may include information regarding
violations of Technical Certification
Requirements that could, if not addressed
by Licensee, result in Certification
failure. The Beta Trial process shall be as
further described in the Xbox Guide.
2.2.5
CERTIFICATION. In addition to the deliverables set forth
in the PLA, Licensee shall deliver to
Microsoft a proposed final release version
of the Software Title with Online Features
that is complete and ready for access
via Xbox Live, in addition to such other
content as may be required by the Xbox
Guide. Such version shall provide the final
content rating certification and
with all identified program errors
corrected. If applicable, Licensee shall also
provide Microsoft access to Licensee's Game
Servers and Game Server software.
Microsoft shall conduct compliance,
compatibility, functional and other testing
consistent with the Xbox Guide
("Certification Testing") and shall subsequently
provide Licensee with the results of such
testing. As set forth in the Xbox
Guide, Certification Testing may vary
depending on the nature of the Online
Features (e.g., a series of episodic
downloads for a client-to-client game may
have different Certification criteria and
testing times than the features of a
multiplayer client-server game).
2.2.5.1
Certification for Online Features may be
conditioned upon (1) successful completion
of the Certification Testing; (2)
conformance with the approved Online
Feature Concept as identified in the
Concept Summary; (3) demonstration of
conformance with the Technical
Certification Requirements as described in
the Xbox Guide; (4) consistency with
the goals and objectives of the Xbox Live
service; and (5) continuing and
ongoing compliance with all Certification
requirements and other requirements as
set forth in the Xbox Guide and this
Amendment.
3
<Page>
2.2.5.2
Certification for Licensee Game Servers may be
conditioned upon: (1) successful completion
of the Certification Testing, (2)
demonstration of conformance with the
Service Level Requirements as described in
the Xbox Guide, and (3) continuing and
ongoing compliance with all Certification
requirements, Service Level Requirements,
and other requirements as set forth in
the Xbox Guide and this Amendment.
2.2.5.3 If
warranted on the basis of its tests,
Microsoft shall make reasonable efforts to
provide Licensee with feedback
regarding the Online Features and Licensee
Game Servers and modifications that
must be made prior to approval of the
Certification submission. Provided that
Licensee has made good faith efforts to
address issues raised by Microsoft,
Licensee shall be given the opportunity to
resubmit Online Features and Licensee
Game Servers that fail the Certification
approval process. In Microsoft's
discretion, Licensee may be charged a
reasonable fee designed to offset the
costs associated with the testing of Online
Features and Licensee Game Servers
upon resubmission.
2.2.6
POST-RELEASE COMPLIANCE. As set forth in Section 2.2.5
above, Online Features (and Licensee Game
Servers, as applicable) must remain in
compliance with all Certification
requirements on a continuing and ongoing
basis. If, following Certification and
Commercial Release, the Online Features
thereafter fail at any time to comply with
any of the Certification criteria set
forth herein, Microsoft reserves the right,
at its option, to terminate this
Amendment with respect to such Online
Features, or to revoke Certification and
suspend the availability of such Online
Features in whole or in part until such
time that such Online Features are
re-Certified in accordance with Section
2.2.5. Re-Certification may be conditioned
upon Licensee's delivery to Microsoft
of Auto-Updates (as defined in Section
2.3.3) in accordance with and within the
time frames set forth in the Xbox Guide. If
Licensee Game Servers fail at any
time to comply with any of the
Certification criteria set forth herein, (i)
Microsoft reserves the right, at its
option, to suspend Licensee's maintenance
and operation of such Licensee Game Servers
until such time that such Licensee
Game Servers achieve Certification again
and/or terminate Licensee's right to
maintain and operate Licensee Game Servers
and, (ii) if such noncompliance of
such Licensee Game Servers is caused by a
change by Microsoft to the
Certification requirements and Licensee
does not bring such Licensee Game
Servers back in to compliance with such
changed Certification requirements
within a reasonable time period to cure any
such noncompliance (provided that
Licensee acknowledges that the cure period
may vary depending on the nature of
the noncompliance), then Microsoft further
reserves the right to host the Online
Features on its own Game Servers for the
remainder of the period of
noncompliance (or the expiration or
termination of Microsoft's license to such
Online Features under this Amendment, if
earlier) if such hosting would not
place Licensee in breach of any agreement
with Licensee's third party suppliers
of code or content for the Online Features
(provided that Licensee shall use all
commercially reasonable efforts to secure
permission from Licensee's third party
suppliers for Microsoft to host the Online
Features on its own Game Servers), in
which case Licensee shall cooperate as
reasonably requested by Microsoft in
effecting a smooth and prompt transition of
the Online Features from Licensee
Game Servers to Microsoft's Game Servers,
and Licensee shall be responsible for
the costs of hosting of the Online Features
by Microsoft, and Microsoft agrees
to charge Licensee a commercially
reasonable fee for hosting fees, as
competitively priced against (compared to)
other providers of like game server
hosting services, but not to exceed [* ] of
the hosting fees being charged to
Midway by the 3rd Party Host of such
Licensee Game Servers if such Licensee Game
Servers are being operated by a 3rd Party
Host.
2.3 OTHER APPROVAL
CONSIDERATIONS.
2.3.1
OTHER VERSIONS. The parties may mutually agree that
Licensee submit versions of the Online
Features or Licensee Game Servers at
stages of development other than as
identified above for review and feedback by
Microsoft. Such review shall be within the
discretion of Microsoft and may
require the payment of processing fees by
Licensee to offset the costs
associated with the review of such Software
Titles.
2.3.2
CHANGES OF REQUIREMENTS BY MICROSOFT. Licensee
acknowledges that the Xbox Live service is
a new and evolving network
environment, and as a result, it and the
portions of the Xbox Guide pertaining
to Online Features and/or Licensee Game
Servers are subject to change during the
Term of this Amendment. Notwithstanding
Microsoft's Certification of Online
Features and/or Licensee Game Servers under
this Amendment, nothing herein shall
be deemed to relieve Licensee of its
obligation to correct material program bugs
and errors with respect to Online Features,
Licensee Game Servers and/or FPU's
(as to FPU's, subject to Section 2.4.5 of
the PLA) in
*INFORMATION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 24b-2 UNDER THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED.
4
<Page>
conformance with the Xbox Guide, whenever
discovered (including without
limitation after Commercial Release of the
Online Features), and Licensee agrees
to correct such material bugs and errors as
soon as possible after discovery,
regardless of whether the bug or error
necessitates a correction to Online
Features, Licensee Game Servers and/or
FPU's (as to FPU's, subject to Section
2.4.5 of the PLA). Microsoft will make
commercially reasonable efforts to
promptly notify Licensee of any changes to
the Xbox Guide, and the time frames
for implementing changes to its Online
Features, Licensee Game Servers and FPU's
(as to FPU's, subject to Section 2.4.4. of
the PLA) to comply with the updated
requirements of the Xbox Guide.
2.3.3
POST-RELEASE UPDATES. Licensee understands that certain
changes to the Xbox Guide as it pertains to
Xbox Live, or the revocation of
Certification with respect to Online
Features or Licensee Game Servers, may
require that Licensee develop and make
available for download to End Users or to
Microsoft various updates, upgrades, or
fixes thereto (collectively,
"Auto-Updates"). Microsoft reserves the
right to charge Licensee a re
