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Exhibit 10.73  


 
  CONSENT AND NINTH AMENDMENT TO
  LOAN AND SECURITY AGREEMENT    
    



        THIS CONSENT AND NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is entered into as of January 19, 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, U.S. Credit Parties, Agent and Lenders are parties to that certain Consent and Eighth Amendment to Loan and Security Agreement dated as of December 28, 2004
(the "Eighth Amendment") pursuant to which Required Lenders consented to the Share Acquisition and Midway Europe Transactions (each as defined in the Eighth Amendment) pursuant to Section 2 of
the Eighth Amendment; 


        WHEREAS,
Borrowers have informed Agent and Lenders that the Share Acquisition and Midway Europe Transaction will not be consummated and the consents related thereto may be terminated; 



        WHEREAS,
Borrowers have advised Agent and Lenders that Midway desires to acquire the equity interests of a new subsidiary, Blitz 04-174 GmbH (which name shall be changed to
Midway Games GmbH shortly after the date hereof), registered under the commercial registry of the Local Court (Amtsgericht) of Munich under reg. no. HRB 155 321 ("German
Company"), and capitalize such subsidiary (collectively, the "German Transaction"); 


        WHEREAS,
Borrowers and U.S. Credit Parties desire for Agent and Required Lenders to consent to the German Transaction 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.    Termination of Consents.    Borrowers, each other Company, Agent and Lenders hereby acknowledge and agree that
the consents of Agent and Required Lenders made pursuant to Section 2 of the Eighth Amendment are terminated, null and void and of no further force or effect. Borrowers 


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and
each other Company represent and warrant that no Borrower or Company has taken any action that would be a Default or Event of Default but for the effectiveness of such consents. 



        3.    Consent.    Subject to the satisfaction of the conditions set forth in Section 6 below, Agent and
Required Lenders hereby consent to the German Transaction; provided that (i) Investments in German Company do not exceed $2,500,000 at any time and (ii) the German Transaction is
completed within 180 days of the date hereof. 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 the term "German Company" that is set forth in Section 1.1 of the Loan Agreement is amended and restated in its entirety, as follows: 



        "German Company" means Blitz 04-174 GmbH (Midway Games GmbH upon completion of a name change under German law), a
German limited liability company, registered under the commercial registry of the Local Court (Amtsgericht) of Munich under reg. no. HRB 155 321. 





        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. 



        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)   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.    Additional Event of Default.    An Event of Default shall exist if Borrowers fail to deliver to Agent a
perfected pledge of the equity interests of German Company, effective under German law, within ten (10) business days of the completion of the German Company Capitalization, in form and
substance satisfactory to Agent. 


        8.    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 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 



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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. 




        9.    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 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:	

/s/  THOMAS E. POWELL      

	 	 	Title:	Executive Vice President—Finance,

Treasurer and CFO
	

 	
 	
WELLS FARGO FOOTHILL, INC.,

a California corporation, as Agent, as UK Security

Trustee and as a Lender
	

 	
 	

By:	

/s/  JOHN T. LEONARD      

	 	 	Title:	Vice President




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CONSENT AND NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT