Common use of Excess Cash Clause in Contracts

Excess Cash. (a) Unless otherwise agreed by the Lender, in the event that the aggregate outstanding principal amount of all “Term Loans” and “Advances” under and as defined in the Secured Loan Facility plus the aggregate outstanding principal amount of all Advances hereunder shall equal or exceed $40,000,000 as of the close of business on the Business Day immediately preceding the last Business Day of any calendar week (each such day, a “Testing Date”), on or before the close of business on the Business Day following such Testing Date the Borrower shall issue instructions to each depository bank or other financial institution at which the Borrower or any of its Subsidiaries maintains deposit accounts (other than deposit accounts maintained in Japan or Australia and excluding any amounts on deposit to cash collateralize any letter of credit reimbursement obligations) to cause an amount equal to any excess in increments of $1,000,000 of: (i) the then available cash balances in such accounts as of such Testing Date after giving effect to all receipts and other payments due or owing to or from such accounts, over (ii) $10,000,000 to be transferred to the Lender’s Account on or before the Business Day after such Testing Date (or, in the case of funds transferred from an account located outside of the United States, the second Business Day after such Testing Date) for application (i) first, to the outstanding obligations under the Unsecured Subordinated Loan Facility in accordance with the terms thereof, and (ii) second, to the outstanding Obligations hereunder in accordance with the terms hereof; provided that after giving effect to such application the aggregate outstanding principal amount of the Advances hereunder shall not be less than $10,000,000.

Excess Cash. (a) Unless otherwise agreed by the Lender, in the event that the aggregate outstanding principal amount of all “Term Loans” and “Advances” under and as defined in the Secured Loan Facility plus the aggregate outstanding principal amount of all Advances hereunder shall equal or exceed $40,000,000 as of the close of business on the Business Day immediately preceding the last Business Day of any calendar week (each such day, a “Testing Date”), on or before the close of business on the Business Day following such Testing Date the Borrower shall issue instructions to each depository bank or other financial institution at which the Borrower or any of its Subsidiaries maintains deposit accounts (other than any Segregated Account or any deposit accounts maintained in Japan or Australia and excluding any amounts on deposit to cash collateralize any letter of credit reimbursement obligations) to cause an amount equal to any excess in increments of $1,000,000 of: (i) i. the then available cash balances in such accounts as of such Testing Date after giving effect to all receipts and other payments due or owing to or from such accounts, over (iia) Prior to the date Midway has designated with the consent of the Lender a “Permanent Segregated Account” (as such term is defined in the definition of “Segregated Account” hereunder), $14,000,000; or (b) At any time thereafter, $10,000,000 to be transferred to the Lender’s Account on or before the Business Day after such Testing Date (or, in the case of funds transferred from an account located outside of the United States, the second Business Day after such Testing Date) for application (i) first, to the outstanding obligations under the Unsecured Subordinated Loan Facility in accordance with the terms thereof, and (ii) second, to the outstanding Obligations hereunder in accordance with the terms hereof; provided that after giving effect to such application the aggregate outstanding principal amount of the Advances hereunder shall not be less than $10,000,000. (e) Section 7.13 of the Credit Agreement is hereby amended to insert the words “for the Factoring Agreement, or” immediately after the word “Except” appearing therein. (f) Article 8 of the Credit Agreement is hereby amended to delete the word “or” appearing at the end of Section 8.15, to insert the word “; or” in place of the period at the end of Section 8.16, and to insert the following new section at the end of such Article:

Excess Cash. (a) Unless otherwise agreed by the Lender, in the event that the aggregate outstanding principal amount of all “Term Loans” and “Advances” under and as defined in the Secured Loan Facility plus the aggregate outstanding principal amount of all Advances hereunder “Advances” under and as defined in the Unsecured Loan Facility shall equal or exceed $40,000,000 as of the close of business on the Business Day immediately preceding the last Business Day of any calendar week (each such day, a “Testing Date”), on or before the close of business on the Business Day following such Testing Date the Borrower shall issue instructions to each depository bank or other financial institution at which the Borrower or any of its Subsidiaries maintains deposit accounts (other than deposit accounts maintained in Japan or Australia and excluding any amounts on deposit to cash collateralize any letter of credit reimbursement obligations) to cause an amount equal to any excess in increments of $1,000,000 of: (i) the then available cash balances in such accounts as of such Testing Date after giving effect to all receipts and other payments due or owing to or from such accounts, over (ii) $10,000,000 to be transferred to the Lender’s Account on or before the Business Day after such Testing Date (or, in the case of funds transferred from an account located outside of the United States, the second Business Day after such Testing Date) for application (i) first, to the outstanding obligations under the Unsecured Subordinated Loan Facility in accordance with the terms thereof, and (ii) second, to the outstanding Obligations hereunder in accordance with the terms hereof; provided that after giving effect to such application the aggregate outstanding principal amount of the Advances hereunder shall not be less than $10,000,000.

Excess Cash. (a) Unless otherwise agreed by the Lender, in the event that the aggregate outstanding principal amount of all “Term Loans” and “Advances” under and as defined in the Secured Loan Facility plus the aggregate outstanding principal amount of all Advances hereunder “Advances” under and as defined in the Unsecured Loan Facility shall equal or exceed $40,000,000 as of the close of business on the Business Day immediately preceding the last Business Day of any calendar week (each such day, a “Testing Date”), on or before the close of business on the Business Day following such Testing Date the Borrower shall issue instructions to each depository bank or other financial institution at which the Borrower or any of its Subsidiaries maintains deposit accounts (other than any Segregated Account or any deposit accounts maintained in Japan or Australia and excluding any amounts on deposit to cash collateralize any letter of credit reimbursement obligations) to cause an amount equal to any excess in increments of $1,000,000 of: (i) i. the then available cash balances in such accounts as of such Testing Date after giving effect to all receipts and other payments due or owing to or from such accounts, over (iia) Prior to the date Midway has designated with the consent of the Lender a “Permanent Segregated Account” (as such term is defined in the definition of “Segregated Account” hereunder), $14,000,000; or (b) At any time thereafter, $10,000,000 to be transferred to the Lender’s Account on or before the Business Day after such Testing Date (or, in the case of funds transferred from an account located outside of the United States, the second Business Day after such Testing Date) for application (i) first, to the outstanding obligations under the Unsecured Subordinated Loan Facility in accordance with the terms thereof, and (ii) second, to the outstanding Obligations hereunder in accordance with the terms hereof; provided that after giving effect to such application the aggregate outstanding principal amount of the Advances hereunder shall not be less than $10,000,000.