[*] 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.
AMENDMENT NO. 2 to LOAN AND SECURITY
AGREEMENT
THIS
AMENDMENT NO. 2 to LOAN AND SECURITY AGREEMENT (this “
Amendment ”) is being executed and delivered as of
September 15, 2008, by and among MIDWAY HOME ENTERTAINMENT
INC., a Delaware corporation (“ Midway ”), as
Administrative Borrower on behalf of the “Companies”
(as defined in the Credit Agreement referred to below), and
NATIONAL AMUSEMENTS, INC., a Maryland corporation, as Lender (the
“ Lender ”). All capitalized terms used herein
without definition shall have the same meanings as set forth in the
hereinafter identified and defined Credit Agreement.
WHEREAS,
the Lender, Midway, Midway Amusement Games, LLC, a Delaware limited
liability company, Midway Games Inc., a Delaware corporation,
Midway Games West Inc., a California corporation, Midway
Interactive Inc., a Delaware corporation, Midway Sales Company,
LLC, a Delaware limited liability company, Midway Home Studios
Inc., a Delaware corporation, Surreal Software Inc., a Washington
corporation, Midway Studios — Austin Inc., a Texas
corporation, and Midway Studios — Los Angeles Inc., a
California corporation, have entered into that certain Loan and
Security Agreement, dated as of February 29, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”);
WHEREAS,
the Lender has agreed to factor certain accounts of Midway now
subject to the security interest of the Lender, as set forth in the
Credit Agreement; and
WHEREAS,
Midway, on behalf of the Companies, has requested that the Lender
agree to amend the Credit Agreement, as set forth herein, and the
Lender has agreed to so amend the Credit Agreement on the terms and
conditions of this Amendment;
NOW,
THEREFORE, in consideration of the foregoing premises, the terms
and conditions stated herein, the representations and warranties of
Midway in Section 2 hereof, and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by
Midway and the Lender, such parties hereby agree as
follows:
1.
Amendments. As of the date hereof, the Credit Agreement is
hereby amended as follows:
(a)
Section 1.1 of the Credit Agreement is hereby amended to
insert the following new definitions in their appropriate
alphabetical sequence:
“
Factoring Agreement ” shall mean that certain
Factoring Agreement, dated as of September 15, 2008, by and
among Midway, as seller, the Lender, as purchaser, and MAG, as
servicer, as amended, restated, supplemented or otherwise modified
and in effect.
“
Released Collateral ” shall mean all Accounts,
together with any unpaid seller’s rights, rights to
inventory, guarantees, collateral, supporting obligations, letter
of credit rights, insurance policies, and proceeds or rights
relating thereto, that are sold or transferred from time to time by
Midway to the Lender pursuant to the Factoring Agreement, and all
collections thereon and proceeds thereof (othe
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