Exhibit 10.3
This document was prepared by
and following recording return to:
Xxxx Xxxx-Xxxxxxx
Lord, Xxxxxxx & Brook
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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Space above reserved for use by Recorder of Deeds
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the "Agreement") is made as of this 28th day of
June, 2002, by and between Midway Amusement Games, LLC, a Delaware limited
liability company (hereinafter referred to as "Midway") and Xxxxxxxx Electronics
Games, Inc., a Delaware corporation (hereinafter referred to as "Xxxxxxxx").
The following recitals of fact are a material part of this Agreement:
A. Midway is the holder of legal title to a certain parcel of land in the
City of Chicago (the "City"), described on EXHIBIT A attached hereto and made a
part hereof (hereinafter referred to as the "Midway Parcel");
X. Xxxxxxxx is the holder of legal title to a certain parcel of land in the
City which is adjacent to and contiguous with the Midway Parcel and is legally
described on EXHIBIT B attached hereto and made a part hereof (hereinafter
referred to as the "Xxxxxxxx Parcel");
C. Midway wishes to grant an exclusive easement for, on, over and across a
certain portion of the Midway Parcel for Xxxxxxxx' quiet use and enjoyment, as
more fully set forth below; and
D. The parties wish to make certain agreements regarding such easement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the following grants, agreements,
covenants and restrictions are made:
SECTION 1. EXCLUSIVE UNRESTRICTED EASEMENT OVER THE MIDWAY PARCEL
Midway hereby grants, gives and conveys to Xxxxxxxx and its Affiliates
only, as an easement appurtenant to the Xxxxxxxx Parcel, an exclusive
unrestricted easement for, on, over, upon and across that certain portion of the
Midway Parcel described in EXHIBIT C (the "Easement
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Area") for its quiet use and enjoyment; provided however, that the easement
shall terminate and cease to exist in the event that (i) there is a "Change in
Control" of Xxxxxxxx, or (ii) Xxxxxxxx assigns or otherwise transfers, by lease,
license or otherwise, its rights or obligations under this Agreement to any
third party, and provided further that Xxxxxxxx may not construct any
improvements or permit the Easement Area to be blocked or obstructed
unreasonably so as to hinder and impede the free flow of access to Midway,
reserved in this Agreement. In addition, Midway may not construct any
improvements or permit the Easement Area to be blocked or obstructed
unreasonably so as to hinder and impede Xxxxxxxx' quiet use and enjoyment of the
Easement Area.
In addition to the foregoing, Midway expressly grants, gives and conveys to
Xxxxxxxx and its Affiliates only, the express right to make any permanent
alterations, improvements or additions, in, on or to the Buildable Area (as
defined below) in Xxxxxxxx' sole discretion; provided, however, that (i) such
alterations, improvements or additions, taken together, shall not occupy greater
than fifty percent (50%) of the total area of the Buildable Area, (ii) all such
alterations, improvements or additions are contiguous to the Xxxxxxxx Parcel or
other such alternations, improvements or additions made prior thereto in
accordance with this paragraph, and (iii) such alterations, improvements or
additions do not prevent ingress or egress from the North side of the
improvements located on the Midway Parcel to and from the "Alley" shown on
Exhibit C (the portion of the Buildable Area on which such alterations,
improvements or additions are located is an "Improved Area"). Further, in event
of any such alterations, improvements or additions, Midway shall sell, transfer
and convey to Xxxxxxxx, and Xxxxxxxx shall purchase, the Improved Area at fair
market value (evaluated using the current zoning and use of the Buildable Area
as of the date of execution of this Agreement), in which case the parties shall
amend Exhibit C and Xxxxxxxx Proportionate Share (as hereinafter defined) to
reflect a new "Easement Area" with the Improved Area removed therefrom. The
"Buildable Area" shall mean that portion of the Easement Area, as the Easement
Area is defined as of the date of execution of this Agreement, excluding the
area labeled as "Alley" on Exhibit C.
For the purposes of this Agreement, "Change in Control" shall mean any of
the following: (i) acquisition of Control of a party, directly or indirectly, in
a single transaction or a series of related transactions, by a person that was
not an Affiliate of a party prior to the execution of this Agreement; (ii) the
merger, consolidation or other business combination of a party into or with
another entity that was not an Affiliate of a party prior to the execution of
this Agreement; or (iii) the acquisition of all or substantially all of the
assets of a party, directly or indirectly, in a single transaction or series of
related transactions. As used herein, "Control" shall mean (x) the legal,
beneficial or equitable ownership, directly or indirectly, of 50% or more of the
aggregate of all voting equity interests in an entity, or (y) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise. As used herein
"Affiliate" means, as to any person, any other person which, directly or
indirectly, is in Control of, is Controlled by, or is under common Control with,
such person. Xxxxxxxx may not assign or otherwise transfer its rights or
obligations under this Agreement to any third party. In furtherance of the
above, no person shall avoid the provisions of this Agreement by assigning any
right or delegating any obligation under this Agreement to one or more
Affiliates and then disposing of all or any portion of such person's interest in
any such Affiliate.
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SECTION 2. RESERVATION OF EASEMENT BY MIDWAY.
Midway expressly reserves the right of ingress and egress, on, over and
upon the Easement Area, as needed for Midway to gain entry to and from fire,
emergency and other doorways of the improvements located on the Midway Parcel.
SECTION 3. MAINTENANCE AND REPAIR OF EASEMENT AREA.
Xxxxxxxx shall, at Xxxxxxxx sole cost and expense, maintain the Easement
Area in good repair and clean condition (i.e., reasonably free of dirt, debris,
ice and snow). Midway shall have no obligation for any cost of maintenance or
repair to the Easement Area and any amenities or facilities constructed or
installed therein by or on behalf of Xxxxxxxx as otherwise permitted by this
Agreement.
SECTION 4. CONDUCT AND COORDINATION OF MAINTENANCE, REPAIR AND REPLACEMENT.
All maintenance and repair of the Easement Area shall be made so as to
interfere as little as practicable with Midway's use of the Midway Parcel and
the rights reserved by Midway hereunder.
Xxxxxxxx shall not place, or permit to be placed, any liens on the Easement
Area or the Midway Parcel due to any maintenance, repair or construction work or
other work performed by Xxxxxxxx or on Xxxxxxxx' behalf on the Easement Area.
Xxxxxxxx shall be responsible for damage caused to the Midway Parcel by
Xxxxxxxx, or any party under its control, following any construction or
maintenance work and pay the cost of any required restoration or repair to the
Midway Parcel.
SECTION 5. DEFAULT AND REMEDIES.
In the event of an emergency requiring maintenance or repair of the
Easement Area and if Xxxxxxxx does not undertake the same within a period of
time which is reasonable under the circumstances or it does not appear that
Xxxxxxxx will, or will be able to, undertake such maintenance or repair, then
Midway may, at its option with notice to Xxxxxxxx, perform such maintenance or
repair and pay any and all costs and charges associated therewith.
Failure by a Xxxxxxxx to perform any provision of this Agreement to be
performed by Xxxxxxxx shall constitute a default if the failure to perform is
not cured within 30 days after the Xxxxxxxx receives written notice thereof from
Midway. If such default cannot reasonably be cured within 30 days, Xxxxxxxx
shall not be in default of this Agreement if Xxxxxxxx commences to cure the
default within such 30-day period and diligently and in good faith continues to
cure the default until completion (but in no event more than 120 days), provided
the same is capable of being cured by Xxxxxxxx.
If Xxxxxxxx shall have failed to cure a default after the expiration of the
applicable time for cure of a particular default, Midway may, at its election,
but without obligation therefor, (a) seek specific performance of any obligation
of Xxxxxxxx; (b) pursue an action for injunctive or declaratory relief; (c) from
time to time without releasing Xxxxxxxx in whole or in part from its obligation
to perform any and all covenants, conditions and agreements to be performed by
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Xxxxxxxx hereunder, cure the default at Xxxxxxxx'x cost; or (d) exercise any
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute. All such remedies may be exercised alternatively or cumulatively.
Any reasonable cost incurred by Midway in order to cure such a default by
Xxxxxxxx shall be due upon demand from Xxxxxxxx, and shall constitute a lien on
the property of Xxxxxxxx which may be enforced in the manner of enforcement of
judgment liens. Midway may record a memorandum of such lien against the Xxxxxxxx
Parcel.
SECTION 6. FORCE MAJEURE; INTERRUPTION OF SERVICES.
If either party hereto fails to perform in a timely manner any of the
obligations to be performed by such party under this Agreement, and such failure
is due in whole or in part to any strike, lockout, labor trouble, civil
disorder, inability to procure materials, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages,
accidents, casualties, acts of God, acts caused directly or indirectly by the
other party (or such other party's employees, agents, licensees, invitees or
contractors) or any other cause beyond the reasonable control of the
non-performing party, then the non-performing party shall not be deemed in
default hereunder as a result of such failure. The foregoing shall not excuse
any failure to make any payment of money in a timely manner.
Midway shall not be liable in damages for any interruption of utility
services to the Easement Area which may arise out of or be occasioned by
maintenance or repair of the Easement Area unless such interruption of service
results from the wanton or willful misconduct of Midway.
SECTION 7. COVENANTS RUNNING WITH THE LAND.
All provisions of this Agreement, including the benefits and burdens set
forth herein, shall run with the land and are binding upon and shall inure to
the benefit of the successors and assigns of the parties hereto.
SECTION 8. REAL ESTATE TAXES.
Within ten (10) days following the receipt of the xxxx for the real estate
taxes for Midway Parcel (the "Midway Tax Xxxx"), Midway shall deliver the Midway
Tax Xxxx to Xxxxxxxx. Within ten (10) days following Midway's delivery to
Xxxxxxxx of the Midway Tax Xxxx, Xxxxxxxx shall remit to Midway the amount equal
to Xxxxxxxx Proportionate Share of the Midway Tax Xxxx. Xxxxxxxx Proportionate
Share shall be 2.1132%.
SECTION 9. TERMINATION.
Xxxxxxxx may terminate the easement granted pursuant to this Agreement by:
(i) recording a release thereof with the Office of Recorder of Deeds of Xxxx
County, Illinois with directions for delivery of the same to the grantor of such
easement at its address given pursuant hereto, (ii) written agreement with the
grantor, (iii) a Change in Control of Xxxxxxxx as provided above, or (iv) an
assignment or transfer of its rights or obligations under this Agreement to a
third party, in any case, the easements granted to Xxxxxxxx pursuant to this
Agreement shall terminate and all rights, duties and liabilities hereby created
shall terminate as to such easement except for liabilities incurred hereunder
prior to such termination.
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SECTION 10. INDEMNITY AND INSURANCE.
Xxxxxxxx shall indemnify and hold harmless Midway, its successors, officers
and assigns and their agents, tenants and occupants of the Midway Parcel, from
and against any and all claims, losses, damages, injuries, liability, costs and
expenses, including reasonable attorneys' fees) arising form the death of or any
accident, occurrence, injury, loss or damage whatsoever caused to any person or
to the property of any person or entity as shall occur arising out of or
resulting from Xxxxxxxx'x use of the Midway Parcel and Easement Area, except to
the extent any such liability, loss, damage, costs and expenses arises from the
acts of Midway or its agents or the acts of other parties who have been granted
any easement by Midway upon, over and across the Midway Parcel.
SECTION 11. NOTICES.
All notices and other communications given pursuant to this Agreement shall
be in writing and shall be deemed properly served if delivered in person to the
party to whom it is addressed or two (2) days after deposit in the U.S. mail if
sent postage prepaid by United States registered or certified mail, return
receipt requested, addressed as follows:
(a) If to Midway: Midway Amusement Games, LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
(b) If to Xxxxxxxx: Xxxxxxxx Electronics Games, Inc.
000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 000000
Attention: Xxxxx X. Xxxxxx
Either party may change the name of the person or address to which notices and
other communications are to be given by so notifying the other party.
SECTION 12. NON-TERMINABLE AGREEMENT.
Except as otherwise provided herein, no breach of the provisions of this
Agreement shall entitle any party to cancel, rescind or otherwise terminate this
Agreement, but such limitation shall not effect, in any manner, any other rights
or remedies which any party may have hereunder by reason of any breach of the
provisions of this Agreement. No breach of the provisions of this Agreement
shall defeat or render invalid the lien of any mortgage or deed of trust made in
good faith for value covering any part of the other Parcel and any improvements
thereon.
SECTION 13. NON-DEDICATION.
Nothing contained in this Agreement shall be deemed to be a gift or
dedication of any portion of any Parcel to the general public or for any public
use or purpose whatsoever, it being the intention of the parties hereto and
their successors and assigns that nothing in this
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Agreement, expressed or implied, shall confer upon any person, other than the
parties hereto and their successors and assigns, rights or remedies under or by
reason of this Agreement.
SECTION 14. MISCELLANEOUS.
Unless otherwise provided herein to the contrary, this Agreement may be
terminated, extended, modified or amended by written agreement of all Parties,
signed and recorded in the Office of the Recorder of Deeds for Xxxx County,
Illinois.
This Agreement and all easement and other rights granted to Xxxxxxxx
hereunder are subject and subordinate to all existing licenses, leases, grants,
easements, rights of way, mortgages, exceptions, encumbrances, title defects,
matters of record, reservations, and conditions affecting the Easement Area and
access thereto and lands adjacent thereto.
SECTION 15. MULTIPLE COUNTERPARTS.
This Agreement may be executed and delivered in multiple counterparts, all
of which taken together shall be one and the same instrument binding against all
parties when all have so executed and delivered.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Midway Amusement Games, LLC
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President and Secretary
Xxxxxxxx Electronics Games, Inc.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: President and CEO
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List of Exhibits
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Notary Public Seals.
Exhibit A - Description of Midway Parcel.
Exhibit B - Description of Xxxxxxxx Parcel.
Exhibit C - Description of Easement Area.
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