HomeMy WebLinkAboutRESOLUTION - 40-06 - 10/24/2006 - ASSIGNMENT OF LEASE AGRMTRESOLUTION NO. 40-06
A RESOLUTION AMENDING RESOLUTION NO. 53-03 AND AUTHORIZING THE
MAYOR AND VILLAGE CLERK TO EXECUTE AN ASSIGNMENT OF LEASE
AGREEMENT BETWEEN DATAFLO COMMUNICATIONS, LLC. AND NEXTWEB, INC.
FOR THE MAINTENANCE AND OPERATION OF INTERNET COMMUNICATIONS
EOUIPMENT (1141 Hawthorne Lane and 701 Pratt Boulevard)
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois, as follows:
Section 1: That DataFlo Communications, LLC, an Illinois Limited liability company
(JFCS) signed a Communications Site Lease Agreement (Water tower) with the Village of Elk
Grove Village on September 9, 2003.
Section 2: That DataFlo signed an Asset Purchase Agreement with Covad
Communications on September 18, 2006 whereby their assets will be assigned to NextWeb, Inc., a
California corporation, a wholly-owned subsidiary of Covad Communications Group, Inc.
Section 3: That as a result of said transaction, DataFlo Communications LLC. intends to
assign all rights, title and interest of the Site Lease Agreement between DataFlo and the Village of
Elk Grove Village to NextWeb, Inc.
Section 4: That the Mayor be and is hereby authorized to sign the attached documents
marked:
ASSIGNMENT OF LEASE
(WATER TOWER)
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is
authorized to attest said documents upon the signature of the Mayor.
Section 5: That this Resolution shall be in full force and effect from and after its passage and
approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 24`" day of October 2006.
APPROVED this 240i day of October 2006.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Ann I. Walsh, Village Clerk
Resdatanowlease2006
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (this "Assignment'), dated and effective for all
purposes as of the Closing (as such term is defined in the Agreement (as defined below) (the
"Effective Date'), is by and between DataFlo Communications, LLC, an Illinois limited liability
company, with an address of 311 N. Walnut, Suite 210, Wood Dale, IL ("Assignor') and
NextWeb, Inc., a California corporation with an address of 110 Rio Robles, San Jose, CA
("Assignee").
WITNESSETH:
WHEREAS, Assignor, Assignee, and certain Members of Assignor entered into that
certain Asset Purchase Agreement dated as of�� anher /lr 2006 (the "Purchase
Agreement"); and
WHEREAS, in connection with the transactions contemplated by the Purchase
Agreement, Assignor desires to assign to Assignee all Assignor's right, title and interest in that
certain Communications Site Lease Agreement (Water Tower) (the "Lease") dated as of
September 9, 2003, by and between Assignor and Elk Grove Village, an Illinois municipal
corporation, (the "Lessor'l to maintain and operate internet communications equipment at
Lessor's site.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Assitmment and Assumntion. As of the Effective Date, Assignor assigns and
transfers to Assignee all of its right, title and interest in the Lease, and Assignee accepts the
assignment and assumes and agrees to perform, from the Effective Date, as a direct obligation to
Lessor, all the provisions of the Lease. The assignment shall take effect on the Effective Date.
2. , Assignee to Hold Assignor Harmless. Assignor warrants that as of the Effective
Date, there are no uncured defaults under the underlying Lease. Notwithstanding anything
contained herein to the contrary, Assignor shall remain liable for any defaults under the Lease or
any causes of action or claims for damages related to the Lease occurring prior to the Effective
Date. If Assignee defaults under the Lease, Assignee shall indemnify and hold Assignor
harmless from all damages resulting from the default. If Assignee defaults under the Lease and
Assignor pays rent to Lessor or fulfills any of Assignee's other obligations in order to prevent
Assignee from being in default, Assignee immediately shall reimburse Assignor for the amount
of rent or costs incurred by Assignor of lease, together with interest on those sums at the rate of
eleven percent (11.00%) per annum.
3. Default of Lease. If Assignee defaults under the Lease, Assignor shall have all
rights against Assignee that are available by law and those contained in the Lease.
4. Attorney's Fees. If any party commences an action against any of the parties
arising out of or in connection with the assignment of Lease, the prevailing party or parties shall
be entitled to recover from the losing party or parties reasonable attorney's fees and cost of suit.
Signature Page to Assignment of Leaw
CHI 11097335.1
5. Notice. Any notice, demand, request, consent, approval or communication that
either party desires or is required to give to. the other party or any other person shall be in writing
and either served personally or sent by prepaid, first class mail. Any notice, demand, request,
consent, approval, or communication that either party desires or is required to give to the other
party shall be addressed to the other party at the address set forth in the introductory paragraph of
this Assignment. Either party may change its address by notifying the other party of the change
of address.
ASSIGNOR:
DATAFLO COMMUNICATIONS, LLC, an
Illinois liability company
By.
ASSIGNEE:
NEXTWEB, INC., a California corporation
By:
Name: $D IJG GD K 62. Name:
Title: PREs/b&Ai Title:
Date: sir• At .2006 Date: 2006
LESSOR'S CONSENT
The undersigned, as Lessor under the Lease referenced in the foregoing Assignment of
Lease (the "Assignment') by and between DataFlo Communications, LLC, an Illinois limited
liability company ("Assignor"), and NextWeb, Inc., a California corporation ("Assignee'), does
hereby consent to the Assignment under the following terms and conditions:
1. Definitions. Capitalized terms used, but not defined, herein shall have the
meanings set forth in the Assignment.
2. No Waiver. Lessor's consent shall not be deemed to be a waiver of any
restrictions contained in the Lease concerning further assignment, subleasing or hypothecation of
the Lease.,
3. Assimor's Liability. Assignor and any guarantor of the Lease obligations shall
remain liable for all obligations of the Tenant under the Lease accruing through the Effective
Date. Assignor shall have no liability for any obligations of the Tenant under the Lease accruing
after the Effective Date.
4. Assumption. Assignee accepts the Assignment and assumes and agrees to
perform, from the Effective Date, as a direct obligation to Lessor, all the provisions of the Lease.
S. Broker Fees. Assignor and Assignee shall indemnify, defend and hold Lessor
harmless from and against any fees or commissions to any real estate broker or agent in
connection with this Assignment.
6. Conflicts. In the event of any conflict between the terms and provisions of the
Lease and the Assignment, the terms and provisions of the Lease shall control.
7. Countemarts. This instrument may be executed in any number of counterparts.
8. Lessor's Liability. Redress for any claims against Lessor under the Lease or this
Assignment of Lease shall only be made against Lessor to the extent of Lessor's interest in the
property which is leased by the Lease. The obligations of Lessor under the Lease and this
Assignment of Lease shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the case may be, the general
partners thereof or any beneficiaries, stockholders, employees or agents of Lessor, or its
investment manager, if any, and in no case shall Lessor be liable hereunder for any lost profits,
damage to business, or any form of special, indirect or consequential damages.
In connection with the foregoing consent, Lessor hereby confirms that there is no default under
the Lease.
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CHI 11097335.1
LESSOR:
Elk Grove Village, an Illinois municipal
corporation
By; Craig B. Johnson
Name' Craig B. Johnson
Title: Mayor
Date: . October 24 .2006
Aclmowlednd and APreed:
ASSIGNOR:
DA' A COMMUNICATIONS, LLC, an
Illinois limit ility company
By: � - Cpllw
ASSIGNEE:
NEXTWEB, INC., a California corporation
By.
Name: 41006- 609.f�,P— Name:
Title: P&Vc I i'&n� Title:
Date: AR' 42006
CHI 11097333.1
H
Date: 2006