WAIVER, CONSENT AND FIFTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.89
WAIVER, CONSENT AND FIFTEENTH AMENDMENT TO
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, XXXXX 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
liability private company, registered with company number 3292274.
(c) Section 7.9 of the Loan Agreement is hereby amended and restated as follows:
7.9 Consignments
Consign any of their Inventory or sell any of their Inventory on xxxx and hold, sale
or return, sale on approval, or other conditional terms of sale; provided that
Midway and UK Company may consign Inventory for sale in France with their
distributor Nobilis S.A. with a value (based upon the cost of such Inventory to
Midway or UK Company) not to exceed $1,000,000 at any time.
5. Ratification. This Amendment, subject to satisfaction of the conditions provided
below, shall constitute an amendment to the Loan Agreement and all of the Loan Documents as
appropriate to express the agreements contained herein. In all other respects, the Loan Agreement
and the Loan Documents shall remain unchanged and in full force and effect in accordance with their
original terms.
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6. Conditions to Effectiveness. This Amendment shall become effective as of the date
hereof and upon the satisfaction of the following conditions precedent:
(a) Each party hereto shall have executed and delivered this Amendment to Agent;
(b) Companies shall have delivered to Agent such documents, agreements and instruments as may
be requested or required by Agent in connection with this Amendment, each in form and content
acceptable to Agent;
(c) Except for such Defaults as may be waived by this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof or as of the date of the
effectiveness of this Amendment; and
(d) All proceedings taken in connection with the transactions contemplated by this Amendment
and all documents, instruments and other legal matters incident thereto shall be satisfactory to
Agent and its legal counsel.
7. Miscellaneous.
(a) Warranties and Absence of Defaults. In order to induce Agent to enter into this
Amendment, each Company hereby warrants to Agent, as of the date hereof, that, except for such
Defaults as may be waived by this Amendment, the representations and warranties of Companies
contained in the Loan Agreement are true and correct as of the date hereof as if made on the date
hereof (other than those which, by their terms, specifically are made as of certain dates prior to
the date hereof).
(b) Expenses. Companies, jointly and severally, agree to pay on demand all costs and
expenses of Agent (including the reasonable fees and expenses of outside counsel for Agent) in
connection with the preparation, negotiation, execution, delivery and administration of this
Amendment and all other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith. All obligations provided herein shall survive any
termination of this Amendment and the Loan Agreement as amended hereby.
(c) Governing Law. This Amendment shall be a contract made under and governed by the
internal laws of the State of Illinois.
(d) Counterparts. This Amendment may be executed in any number of counterparts, and
by the parties hereto on the same or separate counterparts, and each such counterpart, when
executed and delivered, shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
8. Release.
(a) In consideration of the agreements of Agent and Lenders contained herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each
Company, on behalf of itself and its successors, assigns, and
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other legal representatives, hereby absolutely, unconditionally and irrevocably releases,
remises and forever discharges Agent and Lenders, and their successors and assigns, and their
present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such
other Persons being hereinafter referred to collectively as the “Releasees” and individually as a
“Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any
and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities
whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or
unknown, suspected or unsuspected, both at law and in equity, which such Company or any of its
successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim
to have against the Releasees or any of them for, upon, or by reason of any circumstance, action,
cause or thing whatsoever which arises at any time on or prior to the day and date of this
Amendment, including, without limitation, for or on account of, or in relation to, or in any way in
connection with any of the Loan Agreement, or any of the other Loan Documents or transactions
thereunder or related thereto.
(b) Each Company understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.
(c) Each Company agrees that no fact, event, circumstance, evidence or transaction which could
now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute
and unconditional nature of the release set forth above.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized and delivered as of the date first above written.
| MIDWAY HOME ENTERTAINMENT INC., | ||||||
| a Delaware corporation | ||||||
| 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 | ||||||
| MIDWAY STUDIOS — LOS ANGELES INC., | ||||||
| a California corporation | ||||||
| Each By | Xxxxxx X. Xxxxxx | |||||
| Title | EVP-Finance, CFO & Treasurer | |||||
Signature page to Waiver, Consent and Fifteenth Amendment to Loan and Security Agreement
| XXXXX FARGO FOOTHILL, INC., | ||||||
| a California corporation, as Agent, as UK Security Trustee and as a Lender | ||||||
| By | Xxxx Xxxxxxx | |||||
| Title Vice President | ||||||
Signature page to Waiver, Consent and Fifteenth Amendment to Loan and Security Agreement
