HomeMy WebLinkAboutConsent to Collateral Assignment
Augusta Richmond GA
DOCUMENT NAME: CDY'6ef\\-- +0 CO\\crtexa.J AsSi9rllY\;e,:rl-t-
DOCUMENT TYPE: f; CjCj\ 'j YI me-\'\--\-
YEAR: \ [1 ~ 1;
BOX NUMBER:
'5
FILE NUMBER: \~"\ 0 L\
NUMBER OF PAGES: 3
CONSENT TO COLLATERAL ASSIGNMENT
THIS CONSENT TO COLLATERAL ASSIGNlv1ENT ("Consent") dated as of
fY7a.rc)~ It --' 1991.. is executed by Augusta, Georgia, a political subdivision of the
State of Georgia ("Licensor'), having an office at 530 Greene Street, Room 801, Augusta,
Georgia, 30911 in favor of AT&T COMMERCIAL FINANCE CORPORATION, a Delaware
corporaticm ("Lender"). having an office at 44 Whippany Road, Morristown, New Jersey 07962-
1983).
WITNESSETH:
WHEREAS, Licensor has granted to KM'C Telecom Inc. (formerly known as
KMe Southeast Corp.), a Delaware corporation ("KMC'), a Franchise to Instal~ Maintain and
Operate a l'iber 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 "Agreement"); and
WHEREAS, Lender and KMe 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 KL\4C; and
WHEREAS, as a condition precedent to making certain advances under the Loan
Agreement, Lender has required that KMC grant Lender a collateral assignment andlor security
interest in SIJbstantially all of its assets., including, without limitation, the rights ofIG'vfC under
the Agreeml:mt;
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 clJ1d security interest in all of KL'\1C' s rights under the Agreement.
2. Transfer. Licensor acknowledges and agrees that in the event Lender
exercises its :~emedies under the Loan Agreement, Lender may foreclose on its security interest
in the Agreement andlor 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
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the date IJn which Lender or such third party succeeds to the rights ofKMC under the
Agreemc::nt, 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 perfonnance 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 Ca,pital 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. AJ] notices to Licensor shaH 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 CiDnditions which, by the passage of time or giving of notice or both, would constitute a
default thereunder by KMC;
( 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 thatKMC shall become a debtor under the Federal
Bankruptcy Code and, in cOMection therewith, KMe shall reject the Agreement as an executory
contract, thEm 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 into a new Agreement with the Lender or its designee
for the bene:nt 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 ternl 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 cfthe Agreement).
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5. ReqJ.lired Consents. Licensor hereby represents and warrants that it has
obtained 1111 necessary consents to the execution, delivery, performance and recordation oithis
Consent.
6, Agreements to Continue: Successors and Assisms. 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 which all ofKMC's obligations and liabilities to the Lender are
paid and ~:atisiied in full and all financing arrangements betWeen the Lender and KMC 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 WITNESS WHEREOF, the undersigned has caused this Consent to be duly
executed as of the date first above written.
AUGUSTA, GEORGIA
By:
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