WAIVER, CONSENT AND FIFTEENTH
AMENDMENT TO
LOAN AND SECURITY
AGREEMENT
THIS
WAIVER, CONSENT AND FIFTEENTH AMENDMENT TO LOAN AND SECURITY
AGREEMENT (this “Amendment”) is entered into as of
October 17, 2005, by and among Lenders, WELLS FARGO FOOTHILL,
INC., a California corporation, as the arranger and administrative
agent for the Lenders (“ Agent ”) and MIDWAY
HOME ENTERTAINMENT INC., a Delaware corporation (“
Midway ”), MIDWAY AMUSEMENT GAMES, LLC, a Delaware
limited liability company (“MAG”; Midway and MAG are
referred to hereinafter each individually as a “
Borrower ”, and individually and collectively, jointly
and severally, as the “ Borrowers ”), MIDWAY
GAMES INC., a Delaware corporation (“ Parent ”),
MIDWAY GAMES WEST INC., a California corporation (“
MGW ”), MIDWAY INTERACTIVE INC., a Delaware
corporation (“ MI ”), MIDWAY SALES COMPANY, LLC,
a Delaware limited liability company (“ MSC ”),
MIDWAY HOME STUDIOS INC., a Delaware corporation (“
MHS ”), SURREAL SOFTWARE INC., a Washington
corporation (“ Surreal ”), MIDWAY STUDIOS
– AUSTIN INC., a Texas corporation (“MSA”),
MIDWAY STUDIOS – LOS ANGELES INC., a California corporation
(“MSLA”; Parent, MGW, MI, MSC, MHS, Surreal, MSA and
MSLA, are referred to hereinafter each individually as a “
U.S. Credit Party ” and individually and collectively,
jointly and severally, as the “ U.S. Credit Parties
”).
WHEREAS,
Borrowers, U.S. Credit Parties, Agent, and Lenders are parties to
that certain Loan and Security Agreement dated as of March 3,
2004 (as amended, modified or supplemented from time to time, the
“ Loan Agreement ”);
WHEREAS,
Borrowers have advised Agent and Lenders that the names of certain
Australian Subsidiaries have been changed which actions are a
default under Section 7.5 of the Loan Agreement (the “
Name Change Defaults ”) and Borrowers and U.S. Credit
Parties have requested that Agent and Lenders waive the Name Change
Defaults and consent to such name changes;
WHEREAS,
Borrowers have advised Agent and Lenders that Parent desires to
cause the name of Pitbull to be changed to Midway Studios –
Newcastle Limited (the “ Pitbull Name Change ”)
and Borrowers and U.S. Credit Parties desire for Agent and Required
Lenders to consent to the Pitbull Name Change as set forth herein;
and
WHEREAS,
Borrowers, U.S. Credit Parties, Agent and Lenders have agreed to
amend the Loan Agreement in certain respects, subject to the terms
and conditions contained herein.
NOW
THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
1.
Defined Terms . Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in
the Loan Agreement.
2.
Waiver and Consent . Subject to the satisfaction of the
conditions set forth in Section 6 below, Agent and Required
Lenders hereby waive the Name Change Defaults and consent to the
change of name of certain of the Australian Subsidiaries as
reflected in Section 4(a) of this Amendment. This is a limited
waiver and consent and shall not be deemed to constitute a waiver
of, or consent to, any other future breach of the Loan Agreement
(as amended by this Amendment).
3.
Consent . Subject to the satisfaction of the conditions set
forth in Section 6 below, Agent and Required Lenders hereby
consent to the Pitbull Name Change. This is a limited consent and
shall not be deemed to constitute a waiver of, or consent to, any
other future breach of the Loan Agreement (as amended by this
Amendment).
4.
Amendment to Loan Agreement . Subject to the satisfaction of
the conditions set forth in Section 6 hereof, the Loan
Agreement is amended as follows:
(a) The
definition of “Australia Subsidiaries” in
Section 1.1 of the Loan Agreement is hereby amended and
restated as follows:
“
Australia Subsidiaries ” means Midway Studios —
Australia Pty Ltd. (ACN 066 907 266), Midway Games —
Australia Pty Ltd. (ACN 100 780 989), Midway Studios Development
— Australia Pty Ltd. (ACN 101 413 745), Ratbag Productions
Pty Ltd. (ACN 096 392 362) and Ratbag Studios Pty Ltd. (ACN 106 892
906).
(b) The
definition of “Pitbull” in Section 1.1 of the Loan
Agreement is hereby amended and restated as follows:
“
Pitbull ” means Midway Studios — Newcastle
Limited, an English limited lia
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