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EXHIBIT 10.45
BRERA CAPITAL PARTNERS, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
August 10, 1998, but
effective as of October 1, 1997
XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to a Lease dated as of March 1, 1997, as amended by
Amendment dated July 21, 1997 (collectively, the "Prime Lease") between 000
Xxxxxxx Xxxxxx Associates, L.P. (the "Prime Landlord"), as Landlord, and Brera
Capital Partners, LLC ("Brera"), as Tenant, in respect of premises in the
building (the "Building") located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
consisting of a portion of the 18th floor more particularly described therein
(the "Premises"). We have given you a true copy of the Prime Lease and you
acknowledge receipt thereof.
You have requested the right to share occupancy of the Premises with Brera
on a license basis and we have agreed, subject to the terms of this agreement
("Agreement"). Accordingly, it is appropriate that we each execute this
Agreement to set forth our understandings and our respective rights and
obligations with respect to the Premises and the Prime Lease, as follows:
1. Commencing and effective as of October 1, 1997 (the "Commencement
Date"), XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc. ("MCM") is entitled to occupy that
portion of the Premises shown cross-hatched on the floor plan annexed hereto as
Exhibit A (the "Floor Plan"), and Brera will be entitled to occupy the balance
of the Premises, subject to the following sentence. The reception area and
conference rooms shall be under the direction and control of Brera, but MCM may
make reasonable use thereof in common with Brera. Subject to the consent of the
Prime Landlord, to the extent required, Brera, MCM and each Affiliate (as
hereinafter defined) of MCM occupying any portion of the Premises, may maintain
its respective firm name on the entry door to the Premises and, in addition,
Brera will request the Prime Landlord to cause the Building Directory to
reflect all such firm names, it being expressly agreed, however, that the
failure or refusal of the Prime Landlord to consent to such signage or to cause
the Building Directory to so reflect
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such names shall not be a default of Brera or provide MCM with any claim or
right of offset hereunder.
2. MCM will occupy and use its area within the Premises only for
executive and administrative offices and for no other purposes.
3. The term of this Agreement and MCM's right to share occupancy of the
Premises pursuant hereto (hereinafter, the "Term") shall commence as of the
Commencement Date (subject to the provisions of Paragraph 24 hereof) and shall
end and expire on April 30, 2000 unless sooner terminated as provided in
Paragraph 17 or Paragraph 21 below. MCM shall have no right or option to renew
or extend the Term for periods after April 30, 2000.
4. Effective from and after the Commencement Date, MCM shall make license
payments to Brera at (i) the rate of $3,133.50 per month from the Commencement
Date through January 31, 1998, and (b) at the rate of $6,267.00 per month during
the balance of the Term of this Agreement. MCM will make payments to Brera
within five (5) days after Brera has delivered to MCM the Prime Landlord's
consent referred to in Paragraph 24 hereof for the period from the Commencement
Date through the end of the then current month, and thereafter on the first day
of each and every month during the Term.
5. Monies payable under this Agreement shall be paid to Brera, without
notice or demand, in lawful money of the United States of America, at the
address of Brera set forth above or at such other address as may be designated
by Brera from time to time. Except as set forth in Section 15 below, there shall
be no abatement of, deduction from, or counterclaim or setoff against the
payments provided for herein.
6. MCM acknowledges that it has inspected the Premises and the personal
property located therein (the "Personalty"), knows the condition thereof and
agrees to accept the same "AS IS" on the Commencement Date, in the condition in
which they exist as of the Commencement Date. MCM further acknowledges that
Brera has made no representations or warranties whatsoever with respect to the
Premises or the Personalty, and agrees that Brera has no obligation to alter or
repair the Premises or the Personalty or to prepare the same in any way for
MCM's occupancy or use. MCM will purchase and install any additional furniture
and furnishings it may require for its offices (other than Xxxxx Xxxxx'x
office), all of which furniture and furnishings will be selected by Brera to
match or be consistent with Brera's existing furniture and furnishings. Upon the
termination of this Agreement or the Term hereof, Brera shall have the right at
its election to purchase all such furniture and furnishings from MCM at the
depreciated book value thereof as reflected on MCM's books.
7. Except as otherwise provided below, MCM shall be entitled, during the
Term of this Agreement to receive all services, utilities, repairs and
facilities to be provided by the Prime Landlord under the Prime Lease, subject
to the
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provisions of the Prime Lease relating to the furnishing of such services,
utilities, repairs and facilities. However, Brera shall have no responsibility
or liability of any kind whatsoever for any default of or by the Prime Landlord
under the Prime Lease or for the furnishing to MCM of any services of any kind
whatsoever which the Prime Landlord is required to furnish to the Premises under
the Prime Lease. Brera agrees that in the event it shall receive notice from MCM
that any of the services to which MCM is entitled are not being furnished or are
improperly being furnished, Brera will use reasonable efforts (not including
litigation) to cause the Prime Landlord to cause such services to be resumed or
properly furnished. In addition to the monthly license fee set forth in Section
4 hereof, MCM hereby agrees to pay to Brera within ten (10) days after demand
therefor twenty percent (20%) of all of the costs and expenses related to the
aforementioned services payable by Brera as tenant under the Prime Lease with
respect to such utilities, repairs and facilities, together with the same
percentage of all tax and operating escalation payments and charges for
electricity payable by Brera as tenant under the Prime Lease which accrue during
the Term.
8. Each of Brera and MCM shall provide, at its own sole cost and
expense, its own personnel employed at the Premises, except that Brera shall
provide a receptionist who will act as such for both parties. MCM will, within
ten (10) days after demand therefor, pay to Brera a share of the receptionist's
salary and benefits reasonably determined by Brera, together with MCM's fair and
reasonable share of other variable office expenses (telephone, fax, copying,
postage, etc.), and, if Brera shall provide insurance coverage pursuant to
Paragraph 13 hereof, a fair and reasonable share of the premiums for such
insurance.
9. Each of Brera and MCM will utilize the Premises in such manner as
not to interfere with the other's use of the Premises. Each of Brera and MCM
shall be entitled to use its respective area at all times that it is entitled to
occupy the Premises.
10. Brera agrees that it will not amend, modify or alter the Prime
Lease in any respect which would have a materially adverse impact on MCM without
MCM's written consent, which consent MCM agrees shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, MCM understands and agrees
that Brera may at some future time enter into an agreement with the Prime
Landlord terminating the Prime Lease prior to the stated expiration date
thereof, and in such event this Agreement shall terminate simultaneously with
the termination of the Prime Lease, as provided in Paragraph 21 hereof. Brera
will use reasonable efforts to give MCM as much advance notice of such
termination as is practical under the circumstances.
11. (a) MCM agrees not to do or permit to be done any act or thing
or neglect to take any action which act or thing or neglect will constitute or
cause a breach or violation of any of the terms, covenants, conditions or
provisions of the Prime Lease or which will make Brera liable for any damages,
claims, fines, costs or penalties under the Prime Lease. MCM agrees to indemnify
and hold harmless the
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Prime Landlord and Brera from and against all loss, liability, obligation,
damage, penalty, cost, charge and expense of any kind whatsoever (including,
but not limited to, reasonable attorneys' fees and disbursements) (any or all
of which being hereinafter referred to as "Damages"), whensoever asserted or
occurring, which the Prime Landlord and/or Brera may incur or pay out, or which
may be asserted against the Prime Landlord and/or Brera (a) by reason of any
failure by MCM to perform or comply with any of the terms, covenants,
conditions and provisions of this Agreement, (b) by reason of any breach or
violation by MCM of the terms, covenants, conditions and provisions of the
Prime Lease (other than the obligation to pay rent or additional rent
thereunder), (c) by reason of any work or thing of whatsoever kind done in, on
or about the Premises by MCM's employees, contractors, agents, licensees or
invitees (including, but not limited to, construction, alterations, repairs or
similar acts of any kind whatsoever, and whether or not authorized by this
Agreement), (d) by reason of any negligence or willful act or omission by MCM
or any of MCM's employees, contractors, agents, licensees or invitees or (e) by
reason of any injuries to persons or property occurring in, on or about the
Premises to the extent such injuries are due to MCM's wrongful acts or
omissions; provided, however, that nothing herein shall obligate MCM to
indemnify the Prime Landlord or Brera for Damages caused by the wrongful acts,
omissions or negligence of the Prime Landlord or Brera or its or Brera's
employees, contractors, agents, licensees or invitees. If any action or
proceeding shall be brought against Brera or the Prime Landlord by reason of any
claim covered by the indemnification set forth above, MCM, upon notice from
Brera, agrees to resist or defend such action or proceeding and to employ
counsel therefor reasonably satisfactory to Brera. MCM shall pay to Brera within
ten (10) days after demand therefor all sums which may be owing to Brera and/or
the Prime Landlord by reason of the provisions of this Paragraph 11.
(b) Brera agrees to indemnify and hold harmless MCM and each
affiliate of MCM occupying any portion of the Premises (collectively, the "MCM
Parties") for Damages which any of the MCM Parties may incur or pay out, or
which may be asserted against any of the MCM Parties (a) by reason of any
failure of Brera to perform or comply with any of the terms of this Agreement,
(b) by reason of any breach or violation by Brera of the terms, covenants,
conditions and provisions of the Prime Lease (other than the obligation to
obtain Prime Landlord's consent to this Agreement), (c) by reason of any work
or thing of whatsoever kind done in, on or about the Premises by Brera's
employees, contractors, agents, licensees (other than the MCM Parties) or
invitees (including, but not limited to, construction, alterations, repairs or
similar acts of any kind whatsoever, and whether or not authorized by this
Agreement), (d) by reason of any negligence or willful act or omission by Brera
or any of Brera's employees, contractors, agents, licensees or invitees or (e)
by reason of any injuries to persons or property occurring in, on or about the
Premises to the extent such injuries are due to Brera's wrongful acts or
omissions; provided, however, that nothing herein shall obligate Brera to
indemnify any of the MCM Parties for Damages caused by the wrongful acts,
omissions or negligence of the Prime Landlord or any of the MCM Parties or the
Prime Landlord's or an MCM Party's employees, contractors, agents, licensees or
invitees. If any action or
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proceeding shall be brought against any of the MCM Parties by reason of any
claim covered by the indemnification set forth above, Brera, upon notice from
MCM, agrees to resist or defend such action or proceeding and to employ counsel
therefor reasonably satisfactory to MCM. Brera shall pay to MCM within ten (10)
days after demand therefor all sums which may be owing to any MCM Party by
reason of the provisions of this Paragraph 11.
(c) The obligations of MCM and Brera under this Paragraph 11 shall
survive the expiration or earlier termination of this Agreement.
12. (a) MCM shall make no alterations, decorations, installations,
additions or improvements (collectively, "Alterations") in the Premises without
the prior written consent of Brera and, if required under the Prime Lease, the
consent of the Prime Landlord, which consent Brera shall not unreasonably
withhold provided MCM complies with all applicable provisions of the Prime
Lease. MCM agrees to indemnify and hold Brera harmless from and against any and
all Damages which Brera may incur or pay out to the Prime Landlord with respect
to any Alterations performed by MCM or on MCM's behalf in the Premises. Brera
similarly agrees to indemnify and hold MCM harmless from and against any and
all Damages which MCM may incur or pay out to the Prime Landlord with respect
to Alterations performed by Brera or on Brera's behalf in the Premises.
(b) Brera has consented, subject to approval by the Prime Landlord,
to the Alterations heretofore performed by MCM in the Premises in contemplation
of its shared occupancy of the Premises. MCM shall pay the entire cost of such
Alterations, including all fees of architects and other so-called "soft costs,"
and MCM shall also pay for the removal of such Alterations and the restoration
of the Premises necessitated by such removal upon any refusal of consent
thereto by the Prime Landlord and/or upon the expiration or sooner termination
of the Prime Lease, if required under the terms of the Prime Lease. Such
obligation shall survive the expiration of the Term or other termination of
this Agreement.
13. MCM shall obtain and maintain in full force and effect during the
Term of this Agreement at its own cost and expense, to protect Brera, the Prime
Landlord, any superior lessor or superior mortgagee under the Prime Lease, and
any of Brera's or their respective agents, as insureds, a policy of
comprehensive commercial general public liability insurance with respect to the
Premises and other insurance pursuant to the Prime Lease for the Personalty
located in the Premises, in each instance in accordance with such terms and in
such amounts as reasonably required by or as specified in the Prime Lease, as
applicable. Alternatively, if available and mutually agreeable, Brera will
obtain coverage for MCM under Brera's policies.
14. Each of Brera and MCM shall look first to any insurance in its favor
prior to making any claim against the other for recovery for loss or damage
resulting from fire or other casualty. To the extent that such insurance is in
force and collectible and to the extent permitted by law, each of Brera and MCM
hereby
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releases and waives all right of recovery against the other and against the
Prime Landlord or any one claiming through or under either of Brera and MCM by
way of subrogation or otherwise. The foregoing release and waiver shall be in
force only if the respective insurance policies of Brera and MCM provide that
such release or waiver does not invalidate the insurance. Each of Brera and MCM
agrees to use its reasonable efforts to include in its applicable insurance
policy such provision.
15. Notwithstanding any contrary provisions of this Agreement or law, MCM
shall have no right to an abatement of the payment obligation provided for
herein by reason of a casualty or condemnation or failure of services affecting
the Premises unless Brera receives an abatement with respect to its rental
obligation under the Prime Lease. In furtherance of the foregoing, Brera agrees
to use commercially reasonable efforts to obtain any abatement to which it is
entitled under the Prime Lease by reason of the occurrence of any casualty or
condemnation or failure of services affecting the Premises.
16. Supplementing the provisions of Paragraph 7 above, MCM agrees to pay
to Brera, as additional payment hereunder, within ten (10) days after demand
therefor, all amounts payable by Brera to the Prime Landlord for any special
cleaning, overtime HVAC or other supplemental services ordered by MCM.
17. In the event that MCM shall default in the payment when due of any
payment provided for in this Agreement or in the event MCM shall otherwise
default in the performance of any other term of this Agreement on its part to
be performed and, in such latter event, shall fail to remedy such default by
the date which is the earlier of five (5) days prior to the time for curing
thereof pursuant to the Prime Lease, or longer period, to the extent permitted
under the Prime Lease, if MCM has commenced and is diligently pursuing cure
after notice from Brera to MCM specifying in what manner MCM has defaulted,
Brera shall have the right, without further notice, to terminate the license
hereby granted and re-enter the portion of the Premises occupied by MCM
hereunder either by force or otherwise, and dispossess MCM or any occupant
claiming from or under you, by summary proceedings or otherwise, and remove
MCM's effects and hold the Premises as if this Agreement had not been made, and
MCM hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. Notwithstanding any such action, MCM
shall remain liable for all Damages suffered or incurred by Brera due to MCM's
default, including, without limitation, all costs of securing possession of the
Premises.
18. All notices, requests, demands, elections, consents, approvals and
other communications hereunder ("Notices") must be in writing and addressed to
a party as follows (or to any other address which such party may designate by
Notice):
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If to Brera: Brera Capital Partners, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
If to MCM: XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
1 Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Any notice required by this Agreement to be given or made within a
specified period of time, or on or before a date certain, shall be deemed duly
given or made only if sent by hand, evidenced by written receipt, by reputable
overnight courier, or by certified mail, return receipt requested, and postage
and registry fees prepaid. A Notice sent by certified mail (as above) shall be
deemed given three (3) days after the date of mailing. All other Notices shall
be deemed given when received.
19. On the expiration of the Term or any earlier termination of this
Agreement, MCM shall quit and surrender that portion of the Premises which MCM
occupies, together with all of Brera's Personalty located therein, to Brera,
broom-clean and in good order, condition and repair, except for ordinary wear
and tear, and with respect to the Prime Lease, in accordance with the
applicable provisions of the Prime Lease. If the Premises are not surrendered
upon the expiration of the Term or any earlier termination of this Agreement,
MCM agrees to indemnify and hold harmless Brera from and against all Damages
resulting from MCM's delay in so surrendering the Premises and, at Brera's
option, MCM shall be deemed to be occupying the Premises as a licensee from
month to month, at a monthly license fee equal to two (2) times the fixed
license fee and all additional charges payable hereunder on account of the
Premises during the last month of the Term of this Agreement and subject to all
of the other terms of this Agreement insofar as the same are applicable to a
month-to-month licensed occupancy. The obligations of MCM under this Paragraph
19 shall survive the expiration of the Term or other termination of this
Agreement.
20. This Agreement is subject and subordinate in all respects to the
Prime Lease, and to all terms and provisions thereof. Neither this Agreement
nor the license rights hereby granted shall be assigned, sublet, sublicensed,
mortgaged, pledged, encumbered or otherwise transferred by MCM, by operation of
law or otherwise, and neither the Premises, nor any part thereof, nor any of
MCM's personal property in the Premises shall be encumbered or sublet or used
or occupied or permitted to be used or occupied, or utilized for desk space or
for mailing privileges by anyone other than MCM and Brera, except that MCM may
permit any
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entity controlled by, controlling or under common control with it (each such
entity, an "Affiliate") to use and occupy such portions of the Premises as MCM
is permitted to use and occupy hereunder.
21. In the event of and upon the termination, cancellation or surrender of
the Prime Lease pursuant to the terms and provisions thereof or otherwise, this
Agreement shall automatically cease and terminate.
22. The parties agree that there is no broker, finder or similar person
entitled to a commission, fee or other compensation in connection with this
Agreement.
23. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of New York without regard to the conflict of
law provisions of such State. This Agreement contains the entire agreement and
understanding between Brera and MCM with respect to the Premises and all prior
negotiations and agreements are merged in this Agreement. This Agreement may not
be modified or amended or any term or provision hereof waived or discharged
except in a writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced.
24. Notwithstanding anything to the contrary contained in Paragraph 2
above, in the event the Prime Landlord shall refuse to consent to the sharing of
occupancy contemplated by this Agreement, Brera shall have the right to declare
this Agreement null and void effective from and after such date of refusal of
consent, in which event MCM shall make payment to Brera within five (5) days
thereafter of all license payments due in respect of the period from the
Commencement Date through said date of termination, and neither party hereto
shall have any further obligation to the other hereunder or in connection with
the transaction contemplated hereby, other than with respect to obligations
which shall have theretofore accrued hereunder.
25. The terms, covenants and conditions contained in this Agreement whether
so expressed or not shall be binding upon and inure to the benefit of and be
enforceable by the parties to this Agreement and their respective successors and
assigns, except that no violation of the provisions of Paragraph 20 hereof shall
operate to vest any rights in any successor or assign of MCM.
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Please indicate your acceptance of this Agreement as of the date on the
first page hereof by signing a copy of this letter in the place indicated below
and by returning the same to the undersigned.
Very truly yours,
BRERA CAPITAL PARTNERS, LLC
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Member
Accepted and agreed to:
XxXXXXXX, XXXXXXXX & XXXXXX, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President and Chief
Executive Officer
