Exhibit 2.3
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
This AMENDMENT TO CONTRIBUTION AGREEMENT (this "Amendment") is entered into
as of August 21, 1998, by and among Coaxial Communications of Central Ohio,
Inc., an Ohio corporation ("Central"), Insight Communications Company, L.P., a
Delaware limited partnership ("Insight"), and Insight Holdings of Ohio, LLC, a
Delaware limited liability company ("Insight Holdings").
PRELIMINARY STATEMENT
Central and Insight entered into a Contribution Agreement, dated as of June
30, 1998, and an Amendment to Contribution Agreement, dated as of July 15, 1998.
Insight assigned its rights and delegated its obligations under such
Contribution Agreement, as so amended (the "Contribution Agreement"), to Insight
Holdings. The parties desire to amend the Contribution Agreement as provided in
this Amendment.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
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Capitalized terms used in this Amendment and not defined in this Amendment
shall have the meanings assigned to them in the Contribution Agreement.
ARTICLE 2
AMENDMENTS
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2.1 Form of Operating Agreement.
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The Contribution Agreement is amended by deleting Exhibit A thereto in its
entirety and substituting therefor the form of Operating Agreement attached to
this Amendment as Exhibit A.
2.2 Certain Contributions.
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Section 2.1(d)(4) of the Contribution Agreement is amended to read in its
entirety as follows:
(4) To the extent that the effect of any circumstance
giving rise to an amendment to this Agreement pursuant to Section 3.2(b) is
to reduce the operating income of the Company such that the Company is
unable to make any required distribution with respect to the Preferred A
Interest or the Preferred B
Interest (each as defined in the Operating Agreement), then Central shall
be required to make capital contributions and interest payments pursuant to
this Section 2.1(d) at any time within ten Business Days after a demand
therefor by the Manager (as defined in the Operating Agreement), subject to
the following:
(A) If Central fails to make any capital contributions
and interest payments described in this Section 2.1(d)(4) within ten Business
Days after a demand therefor by the Manager (as defined in the Operating
Agreement), then Insight may, at its option, at any time thereafter and prior to
such time, if any, that Central makes such capital contributions and interest
payments, elect:
(1) to make a capital contribution to the Company
equal to the amount of the capital contributions otherwise required to be made
by Central and pay to the Company interest in the amount of the interest
payments otherwise required to be paid by Central; or
(2) to cause the Company to issue a Common
Interest (as defined in the Operating Agreement) to any Person in exchange for a
capital contribution to the Company equal to the amount of the capital
contributions otherwise required to be made by Central and a payment to the
Company of interest in the amount of the interest payments otherwise required to
be paid by Central; or
(3) to cause the provisions of Section
2.1(d)(4)(B) to apply without further capital contributions to the Company.
(B) If Insight makes an election pursuant to Section
2.1(d)(4)(A) with respect to any capital contributions and interest payments
described in this Section 2.1(d)(4), then (i) Central's obligation under this
Section 2.1(d) to make such capital contributions and interest payments shall be
canceled and Central shall have no further obligation under any provision of
this Section 2.1(d) to make such capital contributions and interest payments and
shall have no liability or obligation to the Company or Insight as a result of
its failure to make such capital contributions and interest payments or as a
result of the circumstance giving rise to the applicable amendment to this
Agreement pursuant to Section 3.2(b), and (ii) the number of Units assigned to
the Common Interests of the Members shall be adjusted as provided in the
Operating Agreement.
(C) Insight shall have no obligation to make an
election pursuant to Section 2.1(d)(4)(A).
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2.3 Assumption of Liabilities.
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(a) Section 4.1(d) of the Contribution Agreement is amended to read
in its entirety as follows:
(d) all other obligations and liabilities arising out of
Central's ownership of the Assets or operation of the System (other than
obligations or liabilities arising under any Contract that is not included in
the Assumed Contracts, any obligations or liabilities relating to any Excluded
Asset, and any obligations and liabilities with respect to any Taxes for periods
prior to the Closing Date) and the obligations and liabilities of Central
described on Schedule 4.1(d).
(b) The Contribution Agreement is amended by adding Schedule 4.1(d)
in the form attached to this Amendment.
2.4 Other Provisions.
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Except where inconsistent with the express terms of this Amendment, all
provisions of the Contribution Agreement as originally entered into shall remain
in full force and effect.
ARTICLE 3
MISCELLANEOUS
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3.1 Benefit and Binding Effect.
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This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
3.2 Entire Agreement.
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This Amendment represents the entire understanding and agreement among the
parties with respect to the subject matter hereof.
3.3 Governing Law.
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THIS AMENDMENT SHALL BE GOVERNED, CONSTRUED, AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CHOICE OF LAW
PROVISIONS THEREOF).
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3.4 Headings.
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The headings in this Amendment are included for ease of reference only and
shall not control or affect the meaning or construction of the provisions of
this Amendment.
3.5 Construction.
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The rules of construction set forth in the Contribution Agreement shall
govern the construction and interpretation of this Amendment.
3.6 Counterparts.
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This Amendment may be executed in two counterparts, each of which, when so
executed and delivered, shall be an original, and both of which counterparts
together shall constitute one and the same fully executed instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment to
Contribution Agreement as of the day first mentioned above.
COAXIAL COMMUNICATIONS OF CENTRAL OHIO,
INC.
By: /s/ Dennis J. McGillicuddy
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Name: Dennis J. McGillicuddy
Title: Chairman
INSIGHT COMMUNICATIONS COMPANY, L.P.
By: ICC Associates, L.P., its general
partner
By: Insight Communications, Inc., its
general partner
By: /s/ Michael S. Willner
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Name: Michael S. Willner
Title: President
INSIGHT HOLDINGS OF OHIO, LLC
By: Insight Communications Company,
L.P., its member
By: ICC Associates, L.P., its general
partner
By: Insight Communications, Inc., its
general partner
By: /s/ Michael S. Willner
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Name: Michael S. Willner
Title: President
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