Exhibit 99.4
CONSENT TO AND ASSIGNMENT OF LEASE AND STORAGE LEASE
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Xxxxxxxx Properties Acquisition Partners, L.P. ("Landlord")hereby consents
to the Transfer (as defined in the that certain Office Lease (the "Lease"),
dated as of July 31, 1993, as amended and supplemented, by and between 1800
Xxxxxxx Associates (as assigned to the Landlord) and CASS Communications, Inc.
("Tenant")) to Alloy Online, Inc. ("Transferee") pursuant to that certain
Reorganization Agreement (the "Reorganization Agreement"), dated as of July 3,
2001, by and between Tenant and Transferee (attached as Exhibit B), of the
Tenant's interest under the Lease and under that certain Storage Lease
Agreement, dated as of April 21, 1994, by and between CASS and Landlord (the
"Storage Lease"), demising the leased premises ("Premises") located in the
building known as 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX ("Building"), for terms
expiring on July 31, 2003, which consent is subject to the terms and conditions
of this Consent to and Assignment of Lease (this "Consent") to which each of
Tenant and Transferee hereby agree:
1. Nothing herein contained shall be construed to (i) modify, waive,
impair or affect any of the provisions, covenants, agreements, terms or
conditions contained in the Lease or the Storage Lease, except as specifically
set forth herein, (ii) waive any breach of the Lease or the Storage Lease or any
rights of Landlord against Tenant or any other person, firm, association,
corporation or other entity liable or responsible for the performance of the
Tenant's obligations under the Lease or the Storage Lease, or (iii) enlarge or
increase Landlord's obligations or Transferee's rights under the Lease or the
Storage Lease or otherwise and all provisions, covenants, agreements, terms and
conditions of the Lease or the Storage Lease are hereby affirmed by Transferee
and declared to be in full force and effect and Transferee assumes performance
thereof and agrees to be bound thereby.
2. Other than as specifically set forth in this Consent, this Consent
shall not be construed as a consent by Landlord to, or as permitting, any other
or further assignment of the Lease or the Storage Lease or any rights under the
Lease or the Storage Lease by Tenants or Transferee, said assignments requiring
in each instance the prior written consent of Landlord. Neither this Consent nor
any rights created hereunder may be assigned by Xxxxxx or Transferee.
3. This Consent shall not be deemed to relieve, impair, release or
discharge Tenant from liability under the Lease or the Storage Lease and Tenant
shall be and remain fully and primarily liable for the performance of all of the
provisions, covenants, agreements, terms and conditions to be performed on the
part of the Tenant under the Lease and the Storage Lease.
4. Transferee represents and warrants that it will use and occupy the
Premises in accordance with the terms and conditions of the Lease or the Storage
Lease. Transferee acknowledges that the foregoing representation constitutes an
essential part of the consideration for the granting of the consent contained
herein.
5. Tenant and Transferee represent and warrant that (i) this Consent, in
connection with the Reorganization Agreement, constitutes the full assignment of
all of Tenant's rights and obligations pursuant to the Lease and the Storage
Lease, and (ii) there is no consideration being
paid by Transferee for the assignment of the Lease or the Storage Lease or the
transfer of any property in the Premises, except as specifically disclosed in
the Reorganization Agreement.
6. Tenant and Transferee each represent and warrant that Transferee is
financially responsible and of good reputation in keeping with the standards of
Landlord for the Building. Transferee represents that it is a corporation duly
incorporated and validly existing under the laws of the State of Delaware and
has full power and authority to execute this Consent and to keep and perform all
obligations of the Tenant under the Lease and the Storage Lease.
7. In the event of any default by Tenant or Transferee in the full
performance and observance of any of their respective obligations hereunder or
in the event any representation contained herein shall prove to be untrue, such
event may, at Landlord's option, be deemed a default under the Lease or the
Storage Lease, and Landlord shall have all of the rights, powers and remedies
provided for in the Lease or the Storage Lease, at law, in equity, by statute or
otherwise with respect to defaults.
8. Tenant hereby indemnifies Landlord and agrees to hold Landlord harmless
from and against any and all liability resulting from any claims that may be
made against Landlord by Transferee or by any brokers or other persons claiming
a commission or similar compensation in connection with this Consent or the
Transfer.
9. This Consent constitutes the entire agreement of the parties hereto
with respect to the matters stated herein and may not be altered, amended,
modified or changed orally, but only by an agreement in writing signed by the
party against whom enforcement of any such alteration, amendment, modification
or change is being sought.
10. This Consent shall not be effective until executed by all of the
parties hereto and may be executed in several counterparts, each of which will
together constitute one and the same instrument.
11. Each right and remedy of Landlord provided for in this Consent or in
the Lease or the Storage Lease shall be cumulative and shall be in addition to
every other right and remedy provided for in the Lease or the Storage Lease or
now or hereafter existing at law, in equity, by statute or otherwise, and the
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies so provided for or existing shall not preclude the
simultaneous or later exercise by Landlord of all or any other rights or
remedies so provided for or so existing.
12. The terms and provisions of this Consent shall bind and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns; provided, however, that neither this Consent nor any
right created hereunder may be assigned by Xxxxxx or Transferee.
13. This Consent shall for all purposes be governed by and construed in
accordance with the laws of the State of Illinois.
14. Xxxxxx agrees that Tenant will pay to Landlord a processing fee of
$1,000 to cover Landlord's costs associated with the processing of this Consent.
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15. Landlord acknowledges that this Consent is being received less than
forty-five (45) days prior to the Transfer, and waives any purported violation
by Tenant of Section XIII of the Lease.
16. Landlord hereby consents to the sublease of the Extension Space (as
defined in the Lease) from CASS to Cass Recruitment Media, Inc. pursuant to the
Sublease Agreement attached hereto as Exhibit A.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed as of the 31/st/ day of July, 2001.
LANDLORD:
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XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware Limited Partnership
By: XXXXXXXX PROPERTIES I, Inc. a Delaware Corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: EVP
TENANT:
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CASS COMMUNICATIONS, INC.
An Illinois Corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
TRANSFEREE:
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ALLOY ONLINE, INC.
A Delaware Corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: CEO
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