AMENDMENT NO. 1 to LOAN AND SECURITY AGREEMENT
EXHIBIT 10.57
EXECUTION COPY
AMENDMENT NO. 1 to LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 to LOAN AND SECURITY AGREEMENT (this “Amendment”) is being
executed and delivered as of August 19, 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.
WITNESSETH:
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”); 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) The definition of “Permitted Investments” appearing in Section 1.1 of the Credit
Agreement is hereby amended (i) to insert the additional clauses, “(o) Investments
constituting loans made by any Foreign Company to the Parent or any other Subsidiary of the
Parent,” and “(p) Loans from any Company to any Foreign Company which re-evidence
Investments made prior to the Closing Date (so long the proceeds of any such Loan are used
at the time of such Loan to repay such prior Investments),” immediately after clause (n)
therein and (ii) to renumber the final clause in such definition from “(o)” to “(q)”.
(b) The definition of “LIBOR Rate” appearing in Section 1.1 of the Credit Agreement is
hereby amended to insert the words “(or such other independent source as
the Administrative Borrower and the Lender may agree upon from time to time)”
immediately after the words “Bank of America, N.A.” appearing therein.
(c) The definition of “Maximum Revolver Amount” appearing in Section 1.1 of the Credit
Agreement is hereby amended to delete the number “$1,047,619” appearing therein and to
replace such figure with the following language: “the aggregate face amount as of any date
of determination of (i) that Letter of Credit issued by Xxxxx Fargo Bank, N.A. on January 5,
2006, initially in favor of RREEF Domain, LP, with an initial face amount of $833,333, and
(ii) that Letter of Credit issued by Xxxxx Fargo Bank, N.A. on November 6, 2006, initially
in favor of Crystal Pier Partners, LP, San Diego, CA, with an initial face amount of
$214,285.75, in each case, together with any Letter of Credit as may renew, refinance,
restructure, replace, or extend either such Letter of Credit, and in each case, as the same
may be amended, restated, supplemented or otherwise modified and in effect”.
(d) Section 1.1 of the Credit Agreement is hereby amended to insert the following new
definition in proper alphabetical order:
“German Intercompany Loan” means, collectively, one or more
loans in an aggregate principal amount of up to €2,137,100 made on or after
August 19, 2008 by the German Company to the Parent and evidenced by that
certain Agreement dated as of August 19, 2008, as amended, restated,
supplemented or otherwise modified, as such loan or loans may be refinanced,
renewed or extended.
(e) The definition of “Permitted Lien” appearing in Section 1.1 of the Credit Agreement
is hereby amended (i) to insert the additional clause “(n) Liens granted in favor of the
German Company and securing the obligations of the Parent under the German Intercompany
Loan” immediately after clause (m) therein and (ii) to renumber the final clause in such
definition from “(n)” to “(o)”.
(f) Article VIII of the Credit Agreement is hereby amended to insert the following
Section 8.14 immediately following Section 8.13 appearing therein, and to renumber Sections
8.14 and 8.15 as Sections “8.15” and “8.16”, respectively:
8.14 The German Company shall sell, assign, pledge, or otherwise transfer its
interest in the German Intercompany Loan without the prior consent of the Lender or
the German Company’s security interest in the collateral pledged by the Parent in
connection with such German Intercompany Loan shall be enforced or foreclosed upon.
2. Representations and Warranties. Midway hereby represents and warrants that after
giving effect to the terms of this Amendment (i) no Default or Event of Default has occurred and is
continuing and (ii) the representations and warranties contained in the Credit Agreement and the
other Loan Documents shall be true and correct in all material respects on and as of the date
hereof, as though made on and as of such date (except to the extent that such representations and
warranties relate solely to an earlier date).
3. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and
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delivered
shall be deemed to constitute one and the same instrument. A signature page sent to the Lender or
its counsel by facsimile or other electronic means (including in portable document format (.pdf))
shall be effective as an original counterpart signature.
4. Section Titles. The section titles contained in this Amendment are and shall be
without substance, meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto.
5. Governing Law. The validity of this Amendment, the construction, interpretation,
and enforcement hereof, and the rights of the parties hereto with respect to all matters arising
hereunder or related hereto shall be determined under, governed by, and construed in accordance
with the laws of the State of Illinois.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above
written.
| MIDWAY HOME ENTERTAINMENT INC., as Administrative Borrower |
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| By | /s/ Xxxxxxx X. Booty | |||
| Title Interim President and Chief Executive Officer | ||||
| NATIONAL AMUSEMENTS, INC., a Maryland corporation, as Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Title: Vice President | ||||
