Xbox 360 Publisher License Agreement

Exhibit 10.71 CONTRACT # 154486 XBOX 360 PUBLISHER LICENSE AGREEMENT This Xbox 360 Publisher License Agreement (" Agreement" ) is entered into and effective as of the later of the two signature dates below (the " Effective Date" ) by and between Microsoft Licensing, GP , a Nevada general partnership (" Microsoft" ), and Midway Home Entertainment Inc., a Delaware corporation (" Publisher" ). RECITALS A. Microsoft and its affiliated companies develop and license a computer game system known as the Xbox 360 game system and a proprietary online service accessible via the Xbox 360 game system known as Xbox Live. B. Publisher wishes to develop and/or publish one or more software products running on the Xbox 360 game system, which software products may also be made available to subscribers of Xbox Live, and to license proprietary materials from Microsoft on the terms and conditions set forth herein. Accordingly, for and in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, receipt of which each party hereby acknowledges, Microsoft and Publisher agree as follows: 1. Exhibits The following exhibits are hereby incorporated to this Agreement (some require completion and/or execution by one or both parties): Exhibit 1: Payments Exhibit 2: Xbox 360 Royalty Tier Selection Form Exhibit 3: Xbox 360 Publisher Enrollment Form Exhibit 4: Authorized Subsidiaries Exhibit 5: Non-Disclosure Agreement Exhibit 6: Japan/Asian Royalty Incentive Program Exhibit 7: Xbox Live Incentive Program 2. Definitions As further described in this Agreement and the Xbox 360 Publisher Guide (defined below), the following terms have the following respective meanings: 2.1 " Asian Manufacturing Region" means the region for manufacturing comprising Taiwan, Hong Kong, Singapore, Korea, Japan and any other countries that are included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide. 2.2 " Asian Sales Territory" means the territory for sales distribution comprising Taiwan, Hong Kong, Singapore, Korea, and any other countries that are included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide. The Asian Sales Territory does not include Japan. 2.3 " Authorized Replicator" means a software replicator certified and approved by Microsoft for replication of FPUs (defined below) that run on the Xbox 360. 2.4 " Branding Specifications" means the specifications as provided by Microsoft from time to time for using the Licensed Trademarks in connection with a Software Title and/or Online Content and on Marketing Materials as set forth in the Xbox 360 Publisher Guide. 2.5 " BTS" means a Microsoft designed break-the-seal sticker that will be issued to the Authorized Replicator for placement on the Packaging Materials (defined below) as specified in the Xbox 360 Publisher Guide. 2.6 " Certification" means the final stage of the approval process by which Microsoft approves or disapproves of a Software Title or Online Content for manufacture and/or distribution. Certification is further defined in this Agreement and the Xbox 360 Publisher Guide.

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2.7 " Commercial Release" with respect to a Software Title means the first commercial distribution of an FPU that is not designated as a Demo Version. With respect to Online Content, Commercial Release means its first availability via Xbox Live to Xbox Live Users. 2.8 " Concept" means the detailed description of Publisher' s proposed Software Title and/or Online Content in each case including such information as may be requested by Microsoft. 2.9 " Demo Versions" means a small portion of an applicable Software Title that is provided to end users to advertise or promote a Software Title. 2.10 " European Sales Territory" means the territory for sales distribution comprising the United Kingdom, France, Germany, Spain, Italy, Netherlands, Belgium, Sweden, Denmark, Norway, Finland, Austria, Switzerland, Ireland, Portugal, Greece, Australia, New Zealand and any other countries that are included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide 2.11 " European Manufacturing Region" means the region for manufacturing comprising the United Kingdom, France, Germany, Spain, Italy, Netherlands, Belgium, Sweden, Denmark, Norway, Finland, Austria, Switzerland, Ireland, Portugal, Greece, Australia, New Zealand and any other countries that are included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide. 2.12 " FPU" or " Finished Product Unit" means a copy of a Software Title in object code form that has passed Certification, has been affixed to a DVD disk and approved by Microsoft for release and manufacturing. Once the Packaging Materials have been added, and the BTS has been assigned or affixed to the FPU or its packaging, the FPU also includes its accompanying BTS and Packaging Materials. 2.13 " Japan Sales Territory" means the territory for sales distribution comprising the country of Japan. 2.14 " Licensed Trademarks" means the Microsoft trademarks identified in the Xbox 360 Publisher Guide. 2.15 " Marketing Materials" collectively means the Packaging Materials and all press releases, marketing, advertising or promotional materials related to the Software Title, FPUs and/or Online Content (including without limitation Web advertising and Publisher' s Web pages to the extent they refer to the Software Title(s), FPU(s) and/or Online Content) that will be used and distributed by Publisher in the marketing of the Software Title(s), FPU(s) and/or Online Content. 2.16 " Manufacturing Region" means the Asian Manufacturing Region, European Manufacturing Region, and/or North American Manufacturing Region. 2.17 " North American Sales Territory" means the territory for sales distribution comprising the United States, Canada, Mexico, Colombia and any other countries that may be included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide 2.18 " North American Manufacturing Region" means the region for manufacturing comprising the United States, Canada, Mexico, Colombia and any other countries that may be included by Microsoft from time to time as set forth in the Xbox 360 Publisher Guide 2.19 " Online Content" means any content, feature, or access to software or online service that is distributed by Microsoft pursuant to this Agreement. Online Content includes, but is not limited to, Online Game Features, Title Updates, Demo Versions, trailers, " themes," " gamer pictures" or any other category of online content or service approved by Microsoft from time to time. Trailers, " themes," " gamer pictures" and any other approved Online Content will be further described in the Xbox 360 Publisher Guide. 2.20 " Online Game Features" means a Software Title' s content, features and/or services that are available to Xbox Live Users via Xbox Live, whether included in the Software Title' s FPU or otherwise distributed via Xbox Live. 2.21 " Packaging Materials" means art and mechanical formats for a Software Title including the retail packaging, end user instruction manual with end user license agreement and warranties, end user warnings, FPU media label, and any promotional inserts and other materials that are to be included in the retail packaging.

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2.22 " Pre-Certification" means the first stage of the approval process wherein Microsoft tests to provide feedback and/or identify any issues that may prevent the Software Title from being approved during the Certification phase. Pre-Certification is further described in this Agreement and the Xbox 360 Publisher Guide. 2.23 " Sales Territory" means the Asian Sales Territory, European Sales Territory, Japan Sales Territory, and/or North American Sales Territory. 2.24 " Software Title" means the single software product as approved by Microsoft for use on Xbox 360, including any Title Updates thereto (if and to the extent approved by Microsoft) and all Online Game Features for such Software Title. If Microsoft approves one or more additional single software product(s) proposed by Publisher to run on Xbox 360, this Agreement, and the term " Software Title," will be broadened automatically to cover the respective new software product(s) as additional Software Title(s) under this Agreement. 2.25 " Subscriber" means an Xbox Live User that establishes an account with Xbox Live. 2.26 " Sub-Publisher" means an entity that has a valid Xbox 360 publisher license agreement with Microsoft or a Microsoft affiliate and with whom Publisher has entered an agreement to allow such entity to publish a Software Title or Online Content in specific Sales Territories. 2.27 " Suggested Retail Price" means the highest per unit price that Publisher or its agent recommends the FPU be made commercially available to end-users in a particular Sales Territory. If the Suggested Retail Price of a particular Software Title varies among the countries in a single Sales Territory, then the highest Suggested Retail Price established for any of the countries will be used to determine the appropriate royalty fees for the entire Sales Territory. 2.28 " Title Update" means an update, upgrade, or technical fix to a Software Title that Xbox Live Users can automatically download to the Xbox Live User' s Xbox 360. 2.29 " Wholesale Price" means the highest per unit price that Publisher charges retailers and/or distributors in bona fide third party transactions for the right to distribute and sell the Software Title within a Sales Territory, it being agreed that (i) any transactions involving affiliates of Publisher (entities controlling, controlled by or under common control of, Publisher) are not to be considered in determining the Wholesale Price; (ii) if Publisher enters into an agreement with a third party (such as a Sub-Publisher) providing the third party with the exclusive right to distribute the Software Title in a Sales Territory, the Wholesale Price is governed by the price charged by the third party rather than the terms of the exclusive distribution agreement between Publisher and such third party; and (iii) if the Wholesale Price varies among countries in a single Sales Territory, the highest Wholesale Price used in the Sales Territory will be used to determine the appropriate royalty fees for the entire Sales Territory. 2.30 " Xbox 360" means the second version of Microsoft' s proprietary game system, successor to the Xbox game system, including operating system software and hardware design specifications. 2.31 " Xbox 360 Publisher Guide" means a document (in physical, electronic or Web site form) created by Microsoft that supplements this Agreement and provides detailed requirements regarding the Pre-Certification and Certification approval process, Branding Specifications, replication requirements, royalty payment process, marketing guidelines, technical specifications and certification requirements, Demo Version requirements, packaging requirements and other operational aspects of the Xbox 360 and Xbox Live. Microsoft may supplement, revise or update the Xbox 360 Publisher Guide from time to time in its reasonable discretion as set forth in this Agreement. Notwithstanding anything to the contrary in this Agreement, under no circumstances shall the Xbox 360 Publisher Guide alter any terms or conditions found in this document entitled " Xbox 360 Publisher License Agreement" in a manner that is unfavorable to Publisher. 2.32 " Xbox Live" means the proprietary online service offered by Microsoft to Xbox Live Users. 2.33 " Xbox Live User" means any individual that accesses and uses Xbox Live. 2.34 Other Terms . All other capitalized terms have the definitions set forth with the first use of such term as described in this Agreement.

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3. Xbox 360 Development Kit License Publisher shall enter into one or more development kit license(s) for the applicable territory(ies) to which Xbox 360 game development kits will be shipped for use by Publisher (each an " XDK License" ) pursuant to which Microsoft or its affiliate may license to Publisher software development tools and hardware to assist Publisher in the development and testing of Software Titles, including redistributable code that Publisher must incorporate into Software Titles pursuant to the terms and conditions contained in the XDK License. 4. Approval Process 4.1 Standard Approval Process . The standard approval process for a Software Title is divided into four phases comprised of Concept approval, Pre-Certification, Certification, and Marketing Materials approval. Unless Publisher elects the EU Approval Option for a European FPU (described below), Publisher is required to submit its Software Title to Microsoft for evaluation at all four phases. Each phase is identified below and further described in the Xbox 360 Publisher Guide. Additional or alternate approval processes for Online Content may be further described in the Xbox 360 Publisher Guide 4.1.1 Concept. For each Software Title, Publisher shall deliver to Microsoft a completed Concept submission form (in the form provided by Microsoft to Publisher) that describes the Software Title. In the event that Publisher desires to host or have a third party host or provide to Xbox Live Users any of Publisher' s Online Game Features, Publisher shall so indicate on the Concept submission form and must execute an addendum to this Agreement, which addendum is available upon request and will be incorporated into this Agreement upon execution. Following evaluation of Publisher' s Concept submission, Microsoft will notify Publisher of whether the Concept is approved or rejected. If approved, the Concept submission form, in the form submitted by Publisher and approved by Microsoft, is incorporated herein by reference and adherence to its terms is a requirement for Certification. Publisher may propose Online Content at any time after a Concept has been approved, in which case Publisher shall deliver to Microsoft a separate Concept submission for each proposed piece of Online Content. 4.1.2 Pre-Certification. If the Concept is approved, Publisher shall deliver to Microsoft a code-complete version of the Software Title or Online Content that includes all current features of the Software Title and such other content as may be required under the Xbox 360 Publisher Guide. Upon receipt, Microsoft shall conduct technical screen and/or other testing of the Software Title or Online Content consistent with the Xbox 360 Publisher Guide and will subsequently provide Publisher with advisory feedback regarding such testing. 4.1.3 Certification. Following Pre-Certification, Publisher shall deliver to Microsoft the proposed final release version of the applicable Software Title that is complete, ready for access via Xbox Live (if applicable), release, manufacture, and commercial distribution. Such version must include the final content rating certification required by Section 4.4, have identified program errors corrected, and have any and all changes previously required by Microsoft implemented. Microsoft shall conduct compliance, compatibility, functional and other testing consistent with the Xbox 360 Publisher Guide (" Certification Testing" ) and shall subsequently provide Publisher with the results of such testing, including any required fixes required prior to achieving Certification. Release from Certification for a Software Title (and for Online Content as applicable) is based on (1) passing the Certification Testing; (2) conformance with the approved Concept and any required submission materials as stated in the Xbox 360 Publisher Guide; (3) Packaging Materials approval; (4) consistency with the goals and objectives of the Xbox 360 console platform and Xbox Live; and (5) continuing and ongoing compliance with all Certification requirements and other requirements as set forth in the Xbox 360 Publisher Guide and this Agreement. 4.1.4 Marketing Materials Approval. Publisher shall submit all Marketing Materials to Microsoft and shall not distribute such Marketing Materials unless and until Microsoft has approved them in writing. Prior to use or publication of any Marketing Materials, Publisher agrees to incorporate all changes relating to use of the Licensed Trademarks that Microsoft may request and will use its commercially reasonable efforts to incorporate other changes reasonably suggested by Microsoft (provided, however, that in any event Publisher shall at all times comply with the Branding Specifications). 4.1.5 Notwithstanding anything to the contrary in this Agreement (including, without limitation, any version of the Xbox Guide), Publisher shall have no liability to Microsoft whatsoever under this Agreement should Publisher cancel or delay the development of a Software Title.

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4.2 EU Approval Option . For a Software Title that Publisher intends to distribute solely in the European Sales Territory (a " European FPU" ), Publisher may choose to forego Concept approval (Section 4.1.1), Pre-Certification (Section 4.1.2) and/or Marketing Materials approval (Section 4.1.4) and submit such Software Title to Microsoft only for Certification approval. This option is referred to herein as the " EU Approval Option." The EU Approval Option applies solely to distribution of European FPUs, and is not available for Online Content intended to be available in the European Sales Territory. If Publisher chooses the EU Approval Option, Publisher shall not use the Licensed Trademarks on the European FPU and the license grant set forth in Section 12.1 is withdrawn as to such European FPU. In addition, Publisher shall make no statements in advertising, marketing materials, packaging, Web sites or otherwise that the European FPU is approved or otherwise sanctioned by Microsoft or is an official Xbox 360 Software Title. The European FPU may not be distributed outside the European Sales Territory without complying with all terms of this Agreement concerning approvals and the release of the FPU as deemed relevant by Microsoft. Microsoft may provide additional information in the Xbox 360 Publisher Guide regarding the European Approval Option. Notwithstanding Publisher' s choice of the EU Approval Option, all other portions of this Agreement other than those specifically identified above shall remain in effect. 4.3 Resubmissions and Additional Review . If a Software Title or Online Content fails Certification, and if Publisher has made good faith efforts to address any issues raised by Microsoft, Microsoft will give Publisher the opportunity to resubmit such Software Title or Online Content for Certification. Microsoft may charge Publisher a reasonable fee designed to offset the costs associated with testing upon resubmission. Publisher may request the ability to submit versions of the Software Title or Online Content at stages of development other than as identified above for review and feedback by Microsoft. Such review is within the discretion of Microsoft and may require the payment of reasonable fees by Publisher to offset the costs associated with the review of such Software Titles or Online Content. 4.4 Content Rating . For those Sales Territories that utilize a content rating system, Microsoft will not accept submission of a Software Title for Certification approval unless and until Publisher has obtained, at Publisher' s sole cost, a rating not higher than " Mature (17+)" or its equivalent from the appropriate rating bodies and/or any and all other independent content rating authority/authorities for the applicable Sales Territory(ies) reasonably designated by Microsoft (such as ESRB, ELSPA, CERO, etc. ). Publisher shall include the applicable rating(s) prominently on FPUs and Marketing Materials, in accordance with the applicable rating body guidelines, and shall include the applicable rating in a header file of the Software Title and in Online Content, as described in the Xbox 360 Publisher Guide. For those Sales Territories that do not utilize a content rating system, Microsoft will not approve any Software Title or Online Content that, in its opinion, contains excessive sexual content or violence, inappropriate language or other elements deemed unsuitable for the Xbox 360 platform. If, after Commercial Release, a Software Title is determined by the ESRB, ELSPA, or CERO (or its equivalent agency in other Sales Territories) as suitable for adults only or otherwise indecent, obscene or otherwise prohibited by law, the Publisher shall at its own costs recall all FPUs. If, after Commercial release, a Software Title distributed in a Sales Territory without a ratings body is determined by Microsoft, in its reasonable discretion, as suitable for adults only, or otherwise indecent or obscene, or otherwise prohibited by law, the Publisher shall at its own cost recall all FPUs. If, after Commercial release, a Software Title is determined by Microsoft, in its reasonable discretion, as suitable for adults only or otherwise indecent or obscene, or otherwise prohibited by law due to content that was not disclosed to Microsoft during the Certification process, then Publisher shall at its own costs recall all FPUs. Publisher hereby represents and warrants that any Online Game Features and other game-related Online Content not included in the initial Software Title FPU will not be inconsistent with the content rating (or, in those countries that do not utilize a content rating system, with the overall nature of the content) of the underlying Software Title. Content rating information and requirements may be further described in the Xbox 360 Publisher Guide. 4.5 Publisher Testing . Publisher shall perform its own testing of the Software Title and FPUs. Upon Microsoft' s request, Publisher shall provide Microsoft with copies of, or reasonable access to inspect the FPUs and Software Title (either in pre-Commercial Release or Commercial Release versions, as Microsoft may request). 4.6 Mutual Approval Required . Publisher shall not distribute the Software Title, nor manufacture any FPU intended for distribution, unless and until Microsoft has given its final approval and release from Certification version of the Software Title and both parties have approved the FPU in writing.

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4.7 Title Updates 4.7.1 All Title Updates for Software Titles are subject to approval by Microsoft. Publisher may release [*] Title Update [*] per Software Title free of charge. Any additional Title Updates proposed by Publisher may be subject to a reasonable charge. 4.7.2 Microsoft may require Publisher to develop and provide a Title Update if (a) a Software Title or Online Content adversely affects Xbox Live, (b) if a change to the Xbox 360 Publisher Guide requires a Title Update, (c) if Certification is revoked for Online Content, or (d) for any other reason at Microsoft' s reasonable discretion. Microsoft will not charge Publisher for the Certification, hosting, and distribution of Title Updates to Xbox Live Users for the first Title Update (if any) per Software Title or Online Content required by a specific change in the Xbox 360 Publisher Guide, or for any other reason at Microsoft' s reasonable discretion. Microsoft reserves the right to charge Publisher a reasonable fee to offset the costs associated with the Certification, hosting, and distribution of Title Updates to Xbox Live Users that are required because of revocation of Certification or a Software Title or Online Content adversely affecting Xbox Live. 5. Xbox 360 Publisher Guide Publisher acknowledges that the Xbox 360 Publisher Guide is an evolving document and subject to change during the term of this Agreement. Publisher agrees to be bound by all provisions contained in the then-applicable version of the Xbox 360 Publisher Guide. Publisher agrees that upon Publisher' s receipt of notice of availability of the applicable supplement, revision, or updated version of the Xbox 360 Publisher Guide (which may be via a publisher newsletter or other electronic notification), Publisher automatically is bound by all provisions of the Xbox 360 Publisher Guide as supplemented, revised, or updated. Publisher' s continued distribution of FPUs after a notice of supplement, revision or update is included in the Xbox 360 Publisher Guide or made available to Publisher constitutes Publisher' s agreement to the then-current Xbox 360 Publisher Guide as supplemented, revised or updated. Microsoft will specify in each such supplement, revision or update a reasonable effective date of each change if such change is not required to be effective immediately. Only with respect to a Software Title that has passed Pre-Certification prior to the applicable revision or update, Publisher will not be obligated to comply with any changes made to the technical or content requirements for Software Titles in the Xbox 360 Publisher Guide, except in circumstances where such change is deemed by Microsoft to be vitally important to the success of the Xbox 360 platform (e.g. changes due to piracy, technical failure) and such change would apply broadly to other Software Titles and Publishers (i.e., rather than applying only to a single Software Title or publisher) or Publisher will not incur any significant expense to accommodate such change. In addition, changes made in Branding Specifications or other Marketing Materials requirements will be effective as to a Software Title that has passed Certification only on a " going forward" basis ( i.e., only to such Marketing Materials and/or FPUs as are manufactured after Microsoft notifies Publisher of the change). Notwithstanding the foregoing, Publisher shall comply with such changes to the Xbox 360 Publisher Guide related to Branding Specifications or other Marketing Materials requirements retroactively if Microsoft agrees to pay for Publisher' s direct, out-of-pocket expenses necessarily incurred as a result of its retrospective compliance with the change. 6. Post-Release Compliance 6.1 Correction of Bugs or Errors . Notwithstanding Microsoft' s Certification, all Software Titles must remain in compliance with all Certification requirements and requirements set forth in the Xbox 360 Publisher Guide on a continuing and ongoing basis. Publisher must correct any material program bugs or errors in conformance with the Xbox 360 Publisher Guide whenever discovered and Publisher agrees to correct such material bugs and errors as soon as possible after discovery. With respect to bugs or errors discovered after Commercial Release of the applicable Software Title, Publisher will, at Microsoft' s request or allowance, correct the bug or error in all FPUs to be manufactured after discovery and Microsoft may charge a reasonable amount to cover the costs of Certifying the Software Title again. 6.2 Online Content; Minimum Commitment 6.2.1 Publisher agrees that each Online Game Feature of a Software Title will be made available via Xbox Live for at least [ * ] following the respective Commercial Release of the FPUs of the Software Title in each Sales Territory in which Xbox Live is available (the " Minimum Commitment" ). Publisher is obligated to provide all necessary support for such Online Game Feature during its availability and for [*] after discontinuation. Following the Minimum Commitment period, Publisher may terminate Microsoft' s license associated with such Online Game Feature upon [*] prior * Information has been omitted from this document and filed separately with the SEC under a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

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written notice to Microsoft; and/or Microsoft may discontinue the availability of any or all such Online Game Feature via Xbox Live upon [*] prior written notice to Publisher. Publisher is responsible for communicating the duration of Online Game Feature availability to Xbox Live Users, and for providing reasonable advance notice to Xbox Live Users of any discontinuation of such Online Game Feature. 6.2.2 Subject to Section 10.3, and unless otherwise agreed upon by the Parties,, Publisher agrees that Microsoft has the right to make Online Content other than Online Games Features submitted by Publisher available to Xbox Live Users for the Term of this Agreement. Publisher agrees to provide all necessary support for such Online Content as long as such Online Content is made available to Xbox Live Users and for [*] thereafter. 6.2.3 Archive Copies. Publisher agrees to maintain, and to possess the ability to support, copies in object code, source code and symbol format, of all Online Content available to Xbox Live Users during the term of this Agreement and for no less than [ * ] thereafter. 7. Manufacturing 7.1 Authorized Replicators . Publisher will use only Authorized Replicators to produce FPUs. Prior to placing an order with a replicator for FPUs, Publisher shall confirm with Microsoft that such entities are Authorized Replicators. Microsoft will endeavor to keep an up-to-date list of Authorized Replicators in the Xbox 360 Publisher Guide. Publisher will notify Microsoft in writing of the identity of the applicable Authorized Replicators and the agreement for such replication services shall be as negotiated by Publisher and the applicable Authorized Replicators, subject to the requirements in this Agreement. Publisher ac ...