HomeMy WebLinkAboutReaffirmaton of Franchise Agreement Consent
Augusta Richmond GA
DOCUMENT NAME: ~E'PfFIR.fC\~-r/ON ~..\' FR'ArJCH/<;S"tljRa/)?~v\J-r CONSe:,NJ
DOCUMENT TYPE: 'r1- ~ R ~~ E..GV T
YEAR: I Or q r
BOX NUMBER:
FILE NUMBER:
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NUMBER OF PAGES: 9
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REAfFfflMA TION
OF
FRANCIHSE ^GI~.--~EMENT CONSENT
To: AT &T Commercial Finance Cqrppnl.tion,
as Collateral Agent
Two Gatehall Drive
Parsippany, New Jersey 07054
THIS REAFFIRMATION OF CONSENT TO COLLATERAL ASSIGNMENT
("Consent") dated as of November -' 1998 is ~xecuted by Augusta, Georgia, a political
subdivision of the State of Georgia (t4e "Licensor"), having an office at Augusta-Richmond
County Municipal Building, 530 GreeQe Street, Room 801, Augusta, Georgia 30911, in favor of
AT &T Commercial Finance Corporation, a Delaware corporation (the "Collateral Agent").
WlrN~SSET~
WHEREAS, Licensor gr~nted to KMC Telecom Inc. (the "Company") that
certain Franchise to Install, Maintain CiT!q Op~rate a Fiber Optic Transmission Cable for the
Transmission of Telephonic Data anq Other Electronic Messages Ov~r, Acr()ss and Under Public
Streets and Rights of Way, dated November 6, 1995, as amended, and set forth in the Ordinance
. Nos. 5801, 5896 and 5996 (collectively the "Franchise Agreement");
,":
WHEREAS, the Collateral Agent, as the "Lender" (in such capacity, the "Original
Lender") and the Company were parties to that certain Loan and Security Agreement dated as of
December 31, 1996, as amended by that certain Amended and Restated Loan and Security
Agreement dated as of September 22, 1997 (as further amended, the "Original Loan
Agreement"), pursuant to which the Original Lender agreed to make certain advances and other
financial accommodations to the Company and certain of its affiliates;
WHEREAS, as a condition precedent to making such advances and other
financial accommodations under the Original Loan Agreement, the Company granted the
Original Lender a collateral assignment of and security interest in the rights of the Company
under the Franchise Agreement by obtairiingthat certain Consent to Collateral Assignment (the
"Original Consent") dated as of March 18, 1998 by the Licensor, in favor of the Original Lender;
WHEREAS, the Company is entering into new financing arrangements in
connection with a Loan and Security Agreement among the Company, the other "Borrowers"
which are now or may hereafter become parties thereto from time to time (together with the
Company, the "Borrowers"), the financial institutions signatory thereto from time to time (the
"Lenders"), First Union National Bank, as administrative agent for the Lenders and the Original
Lender, as collateral agent for the Lenders (in such capacity, the "Collateral Agent"), as the same
~ ~
NYOllKIMT/333840,I
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may be amended, restated, supplemented or otherwise modified from time totime (the "Loan
Agreement"); and
WHEREAS, as a condition pr~cedent to making certain advances and other
financial accommodations to the Borrowers under the :J.-oan Agreement, the Lenders have
requested, among other things, that COI11Pl:lny obtliin a reaffirmation of the terms of Original
Consent in favor of the Collateral Agent, for the benefit of itself and the other Lenders.
NOW, THEREFORE, in consiqerlition oftl1e premises and the mutual
undertakings set forth in the Original Consent:
The Licensor hereby (a) reliffirms its cOT!sent to the Company's grant of a
collateral assignment and security interest in all of the Company's rights under the Franchise
Agreement in favor of the Collaterlil Ag~T!t, for the benefit of itself and the other Lenders, as if
the Collateral Agent were a party tp the'Origillal COflsent alld (b) reaffirms and ratifies each of
the other terms, covenants, representatiOlls <!-nd warranties made by the Licensor pursuant to the
Original Consent, and has agreed that all sUt;h terms, covenants, representations and warranties
shall be deemed to have'been reml:lde (lS of the effet;tive date hereof in favor of the Collateral
Agent, for the benefit of itself and the other Lenders, as if the Collateral Agent were a party to
the Original Consent.
IN WITNESS WHEREOf, tl1e undersigned has caused this Reaffirmation to be
duly executed as of the date first above written.
CITY OF AUGUST A, A POLITICAL
SUBDI ION OF STATE OF GEORGIA,
as t
By:
ATTEST:
ThIs document applMd as
~lnele"tJJ~)fl
omey 3al9 ' .
NYO IIKIMT/333840.1
i;
':1.
REi\.FFmMA TION
Of
FRANCH~SE AG~EMENT CONSENT
To: AT&T Commercial Final1c~ Corppr~tion,
as Collateral Agent
Two Gatehall Drive
Parsippany, New Jersey 07054
THIS REAFFIRMATION Of CONSENT TO COLLATERAL ASSIGNMENT
("Consent") dated as of November -' 199~ is executed by August~, Georgia, a political
subdivision of the State of Georgia (the "Licensor"), having an office at Augusta-Richmond
County Municipal Building, 530 Greefl~ Street, Roorp. 801, Augusta, Georgia 30911, in favor of
AT&T Commercial Finance Corporatipn, a pelaware corporation (the "Collateral Agent").
W1TNESSETH
WHEREAS, Licensor gn1ntecl tp KMC Telecom Inc. (the "Company") that
certain Franchise to Install, Maintain and Operate a Fiber Optic Transmission Cable for the
Transmission of Telephonic Data and Other Electronic Messages Over, Across and Under Public
Streets and Rights of Way, dated November 6, 1995, as amended, and set forth in the Ordinance
Nos. 5801, 5896 and 5996 (collectively the "Franchise Agreement");
WHEREAS, the Collateral Agent, as the "Lender" (in such capacity, the "Original
Lender") and the Company were parties to that certain Loan and Security Agreement dated as of
December 31, 1996, as amended by that certain Amended and Restated Loan and Security
Agreement dated as of September 22, 1997 (as further amended, the "Original Loan
Agreement"), pursuant to which the Original Lender agreed to make certain advances and other
financial accommodations to the Company and certain of its affiliates;
WHEREAS, as a condition .precedent to making such advances and other
financial accommodations under the Original Loan Agreement, the Company granted the
Original Lender a collateral assignment of and security interest in the rights of the Company
under the Franchise Agreement by obtaining that certain Consent to Collateral Assignment (the
"Original Consent") dated as of March 18, 1998 by the Licensor, in favor of t!he Original Lender;
WHEREAS, the Company is entering into new financing arrangements in
connection with a Loan and Security Agreement among the Company, the other "Borrowers"
which are now or may hereafter become parties thereto from time to time (together with the
Company, the "Borrowers"), the financial institutions signCl;tory thereto from time to time (the
"Lenders"), First Union National Bank:, as administrative agent for the Lenders and the Original
Lender, as collateral agent for the Lenders (in such capacity, the "Collateral Agent"), as the same
NYOI/KIMT/333840.1
may be amended, restated, supplemented or otherwise modified from time to time (the "Loan
Agreement"); and
WHEREAS, as a condition p'r~~~dent to m(!.king certain advances and other
, financial accommodations to the B,orrowers unqer the ~oan Agreement, the Lenders have
requested, among other things, that COlTIP~ny obtain a reaffirmation of the terms of Original
Consent in favor of the Collateral Agent, for the benefit of itself and the other Lenders.
NOW, THEREFORt:, in cP!1sid~ration ofth~ premises and the mutual
undertakings set forth in the Original Consent:
The Licensor h~reby (a) r~affirl11s its consent to the Company's grant of a
collateral assignment and security interest in (ill of the Company's rights under the Franchise
Agreement in favor of the Collateral AgeI1t, for th~ benefit of itself and the other Lenders, as if
the Collateral Agent were a party to the OrigillCiI Cpns~nt and (b) reaffirms and ratifies each of
the other terms, covenants, representCitions and warranties mad~ by the Licensor pursuant to the
Original Consent, and has agreed that all s4~h terms, covenants, representations and warranties
shall be deemed to have been remad~ as of th~ effective dat~ hereof in favor of the Collateral
Agent, for the benefit of itself and the otlwr Lel1d~rs, as if the Collateral Agent were a party to
the Original Consent.
IN WITNESS WHEREOF, the lmdersigned has caused this Reaffirmation to be
duly executed as of the date first above written.
CITY OF AUGUSTA, APOLITICAL
SUBDIVIS ON OFST ATE OF GEORGIA,
as th
By:
q
ATTEST:
By --iJJ!/n~
Name:~B er
Title: Clerk of Commission
NYOIIKIMT/333840.1
REA..fFIRMA TlON
OF
FRANC-1IlS~ A..GREEMENT CONSENT
To: AT&T Commercial Finance Corpor~tion,
as Collateral Agent .
Two Gatehall Drive
Parsippany, New Jersey 07054
TIllS REAFFIRMATIONQf CONSENT TO COLLATERAL ASSIGNMENT
("Consent") dated as of November ~, 1998 is exec\.lt~q by Augusta, Georgia, a political
subdivision of the State of Georgia (the "Licensor"), h(iving an office at Augusta-Richmond
County Municipal Building, 530 Greene Stre~t, Room 801, Augusta, Georgia 30911, in favor of
AT&T Commercial Finance CorporatioIl, (l pelaw~re corporation (the "Collateral Agent").
WlTNESSETH
WHEREAS, Licensor grClnteq to KMC Telecom Inc. (the "Company") that
certain Franchise to Install, Maintain ami Oper~t~ a Fiber Optic Transmission Cable for the.
Transmission of Telephonic Data and Oth~r Ele~tronic Messages Over, Across and Under Public
Streets and Rights of Way, dated Novel11b~r 6, 1995, as amended, and set forth in the Ordinance
Nos. 5801, 5896 and 5996 (collectively th~ "Franchise Agreement");
WHEREAS, the Collateral Agent, as the "Lender" (in such capacity, the "Original
Lender") and the Company were parties to that certain Loan and Security Agreement dated as of
December 31, 1996, as amended by that certain Amended and Restated Loan and Security
Agreement dated as of September 22, 1997 (as further amended,. the "Original Loan
Agreement"), pursuant to which the Original Lender agreed to make certain advances and other
financial accommodations to the Company and certain of its affiliates;
WHEREAS, as a condition precedent to making such ad~ances arid other
financial accommodations under the Original Loan Agreement, the Company granted the
Original Lender a collateral assignment of and security interest in the rights of the Company
under the Franchise Agreement by obtaining that certain Consent to Collateral Assignment (the
"Original Consent") dated as of March I8, 1998.by the Licensor, in favor of the Original Lender;
WHEREAS, the Company is entering into new financing arrangements in
connection with a Loan and Security Agreement among the Company, the other "Borrowers"
which are now or may hereafter become parties thereto from time to time (together with the
Company, the "Borrowers"), the financial institutions signatory thereto from time to time (the
"Lenders"), First Union National Bank, as administrative agent for the Lenders and the Original
Lender, as collateral agent for the Lenders (in such capacity, the "Collateral Agent"), as the same
NYOI/KlMT/333840.1
..
..
may be amended, restated, supplemented or otherwise modified from time to time (the "Loan
Agreement"); and
WHEREAS, as a conditiop precedent to making certain advances and other
financial accommodations to the BdiTc)~ers unqer th~ ~oan Agreement, the Lenders have
requested, among other things, that Commmy Qptain a reaffirmation of the terms of Original
Consent in favor of the Collateral Agent, for th~ benefit of itself and the other Lenders.
NOW, THEREFORE, in ~Qrtsiqer~tion of the premises and the mutual
undertakings set forth in the Origin~l Consent:
The Licensor hereby (a) reCl.fftrms its cons~nt to the Company's grant of a
collateral assignment and security interest in Cl.ll of the Company's rights under the Franchise
Agreement in favor of the Collateral Ag~rtt, for the pen~fit of itself and the other Lenders, as if
the Collateral Agent were a party to the Orjgil1Cj.1 Consent and (b) reaffirms and ratifies each of
the other terms, covenants, represent(l.tiOflS Cl.nq wCj.rranties !1lade by the Licensor pursuant to the
Original Consent, and has agreed that (l.ll S4~h t~rms, ~ovenants, representations and warranties
shall be deemed to have been remade (l.S (Jfth~ ~tTe~tive date hereof in favor of the Collateral
Agent, for the benefit of itself and the oth~r l.-enders, as if the Collateral Agent were a party to
the Original Consent.
IN WITNESS WHEREOF, t}1e undersigned has caused this Reaffirmation to be
duly executed as of the date first above written.
','\
, .
CITY OF AUGUSTA, A POLITICAL
SUBDIVI ON OF STATE OF GEORGIA,
as th
By:
ATTEST:
By ~~~
Name: L na J. ner
Title: Clerk of Commission
Thl8 cIocumtnt approved II
~r)ji
y to
NYOI/KIMT/333840.1
.
-.
....-. .
CONSENT TO COLLATERAL ASSIGNMENT
THIS CONSENT TO COLLATERAL ASSIGNMENT ("Consent") dated as of
/YJa-rJ.. It ---J 1991.... is executed by Augusta, Georgia, a political subdivision of the
State of Georgia C'Licensor"), having an office at 530 Greene Street, Room 801, Augusta,
Georgia, 30911 in favor of AT&T COMMERCIAL FINANCE CORPORATION, a Delaware
corporation ("Lender"). having an office at 44 Whippany Road, Morristown, New Jersey 07962-
1983).
W.I T N E SSE T H :
WHEREAS, Licensor has granted to KMC Telecom Inc. (formerly known as
KMe Southeast Corp.), a Delaware corporation ("KMC"), a Franchise to InstalL Maintain and
Operate a Fiber Optic Transmission Cable for the Transmission of Telephonic Data and Other
Electronic Messages Over, Across and Under Public Streets and Rights of Way, dated,
November 6, 1995, as amended, and set forth in the Ordinance Nos. 5801,5896 and 5996
(coJJectively the "Agreement:'); and
WIffiREAS, Lender and KMC have entered into an Amended and Restated Loan
and Security Agreement dated as of September 22, 1997 (the "Loan Agreement") p~suant to
which Lender will make loans to KMC; and
WHEREAS, as a condition precedent to making certain advances under the Loan
Agreement, Lender has required that KMC grant Lender a collateral assignment and/or security
interest in substantially all of its assets, including, without limitation, the rights ofKMC under
the Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
undertaking herein contained, the parties hereto agree as follows:'
1. Consent. Licensor consents to the grant by KMC of a collateral
assignment.and security interest in all ofKMC's rights under the Agreement.
2. Transfer. Licensor acknowledges and agrees that in the event Lender
exercises its remedies under the Loan Agreement, Lender may foreclose on its security interest
in the Agreement and/or arrange for a third party, to acquire KMC's assets through public or
private sale or through agreement with KMC, provided. however. that as a condition under either
option, such third party shall assume the obligations ofKMC under the Agreement that arise on
and after the date of such foreclosure or acquisition. Notwithstanding any provision of the
Agreement to the contrary, such foreclosure by Lender or acquisition of assets by such third
party shall not constitute a breach of the Agreement and upon such foreclosure or acquisition.
Notwithstanding any provisions of the Agreement to the contrary, such foreclosure by Lender or
acquisition of assets by such third party shall not constitute a breach of the Agreement and upon
such foreclosure or acquisition, Lender or such third party shall succeed to all rights and
remedies ofKMC under the Agreement~ Neither Lender nor such third party shall be liable for
any act, omission, or default or obligation that arose or occurred under the Agreement prior to
NYOIJDUTlDI39716.2
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the date on which Lender or such third party succeeds to the rights ofKM.C under the
Agreement, as applicable; provided, however, that Licensor shall remain entitled to exercise all
of its rights and remedies under the Agreement with respect to any such act, omission, default or
obligation.
3. Notice and Opportunity to Cure Defaults and Termination Events.
Licensor agrees to provide Lender with notice contemporaneously with the provision of any such
notice to Borrower of (i) any default by Borrower in the performance of any liability, obligation,
representation or covenant in the Agreement and (Ii) any other event which would permit
Licensor to cancel or terminate the Agreement, and shall permit Lender to cure any such default
or cancellation or termination event if Borrower fails to do so within the cure periods, if any,
prescribed by the Agreement in respect of such default or cancellation or termination event if
Borrower fails to do so within the cure periods, if any, prescribed by the Agreement in respect of
such default or cancellation or termination event or within ten business days after receipt by
Lender of notice thereof. whichever period is longer. All notices to Lender shall be sent to
AT&T Capital Corporation/Capital Markets Division, 44 Whippany Road, Morristown, New
Jersey 0792-1983; Attention: Vice President/Operations Manager, facsimile no. 201-397-4368,
confirmation no. 201-397-3482. AJl notices to Licensor shall be sent to
-' Augusta, Georgia
4.
of its knowledge:
Further Agreements. Licensor hereby certifies and agrees that, to the best
(a) the Agreement is in full force and effect, all conditions to the
commencement of the term thereof has been satisfied, and there are no amendments,
modifications, or supplements, whether oral or written, thereto;
(b) KMC is not in default under the Agreement, nor are there any
events or conditions which, by the passage of time or giving of notice or both, would constitute a
default thereunder by KMe;
(c) Licensor is not aware of any dispute, action, suit, condemnation
proceeding. claim, or right of setoff pending or threatened with respect to the Agreement or the
property subject thereto; and
Cd) in the event that KMe shall become a debtor under the Federal
Bankruptcy Code and., in cOMection therewith, KMC shall reject the Agreement as an executoI)'
contract, then upon the written request by the Lender made within thirty (30) days following
such rejection, and provided that Lender cures or causes the cure ofKMC's defaults to the
Licensor under the Agreement within thirty (30) days following the Licensor's notice to Lender
of such defaults, the Licensor shall enter int~ a new Agreement with the Lender or its designee
for the benefit of the Lender or such designee, for the rights covered by the Agreement, which
new Agreement (1) shall be effective as of the date of the termination of the Agreement, (2) shall
be for a term expiring as of the last day of the term of the Agreement and (3) shall be on the
same terms and conditions as the Agreement (including any provisions for renewal or extension
of the term of the Agreement).
NYO 1/DtmOlJ97'76.2
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5. Reauired Consents. Licensor hereby represents and warrants that it has
obtained all necessary consents to the execution, delivery, performance and recordation oithis
Consent.
6. ~g;reements to Continue: Successors and Assisns. The agreements
contained herein shall continue in force and effect until the earlier of (i) the expiration date of the
Agreement or (ii) the date on whicha11ofKMC's obligations and liabilities to the Lender are
paid and satisfied in full and all financing arrangements betWeen the Lender and KMe have been
terminated, and shall be binding upon and inure to the benefit of the successors and assigns of
the Lender and the Licensor.
IN WI'INESS WHEREOF, the undersigned has caused this Consent to be duly
executed as of the date first above written.
AUGUSTA, GEORGIA
By:
NYO IlDt.rI1DIJ9776.2
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