Exhibit 4.5
SECURITIES PLEDGE AGREEMENT
SECURITIES PLEDGE AGREEMENT (this "Agreement"), dated as of August 21,
1998, made by COAXIAL LLC, a Delaware limited liability company having its
registered office at 126 East 56th Street, New York, NY 10002, c/o Insight
Communications Company, L.P. ("Pledgor"), in favor of BANK OF MONTREAL TRUST
COMPANY (together with any successors or assigns, the "Trustee"), in its
capacity as trustee under the Indenture (as hereinafter defined).
R E C I T A L S :
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A. Pursuant to a certain indenture, dated as of the date hereof (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Indenture"; capitalized terms used herein and not defined shall have
the meanings assigned to them in the Indenture), among Pledgor, Coaxial
Financing Corp. ("Financing Corp." and together with Pledgor the "Issuers"), the
Guarantor named therein and Bank of Montreal Trust Company, as trustee, the
Issuers have agreed to issue $55,869,000 aggregate principal amount at maturity
of 12 7/8% Senior Discount Notes due 2008 (the "Series A Securities"). It is
contemplated that the Issuers will, after the date hereof, issue Series B
Securities in exchange for such Series A Securities (the "Series B Securities;"
and, together with the Series A Securities, the "Securities").
B. Except as set forth on Annex A, Pledgor is the legal and beneficial
owner of the Pledged Collateral (as hereinafter defined).
C. In order to secure the performance of the Secured Obligations (as
hereinafter defined), the parties hereto are entering into this Agreement
regarding the terms and conditions of Pledgor's pledge of the Pledged Collateral
to the Trustee, for the benefit of itself and the holders of the Securities (the
Trustee and such holders, each a "Secured Party" and collectively, the "Secured
Parties").
A G R E E M E N T :
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NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor and the Trustee hereby agree as follows:
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Section 1. Pledge. In order to secure the payment and performance when
due of all the Secured Obligations, Pledgor hereby pledges, assigns, transfers
and grants to the Trustee for its benefit and the benefit of the Secured
Parties, a first priority lien on, continuing security interest in and pledge of
all of Pledgor's present and future right, title and interest in, to and under
the following property (collectively, the "Pledged Collateral"):
(a) the shares of common stock of Coaxial Communications of Central
Ohio, Inc. ("Coaxial") set forth on Schedule I hereto (the "Pledged
Shares") (which are and shall remain at all times until this Agreement
terminates, certificated shares), including the certificates representing
the Pledged Shares and any interest of Pledgor in the entries on the books
of any financial intermediary pertaining to the Pledged Shares;
(b) all additional shares of common stock of Coaxial from time to time
acquired by Pledgor in any manner (which are and shall remain at all times
until this Agreement terminates, certificated shares) which additional
shares shall be deemed to be part of the Pledged Shares, includ ing the
certificates representing such additional shares and any interest of
Pledgor in the entries on the books of any financial intermediary
pertaining to such additional shares;
(c) all notes described on Schedule II hereto (the "Notes" and
together with the Pledged Shares the "Pledged Securities") and all
certificates or instruments evidenc ing such Notes and all proceeds
thereof, all accessions thereto and substitutions therefor;
(d) all dividends, cash, options, warrants, rights, instruments,
distributions, returns of capital, income, profits and other property,
interests or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Securities (collectively, "Distributions");
(e) the pledge agreement dated as of the date hereof between the
Pledgor and Coaxial DSM LLC and the pledge agreement dated as of the date
hereof between the Pledgor and Coaxial DJM LLC (collectively, the
"Contracts");
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(f) all "general intangibles", as such term is defined in the UCC,
relating to the Contracts including, without limitation and whether now
owned or hereafter acquired, any and all rights, claims, warranties and
causes of action of Pledgor against any other Person relating to the
Contracts and the benefits of any and all collateral or other security
given by any other Person in connection therewith (collectively, the
"Intangibles");
(g) all "proceeds" (as such term is defined in the Uniform Commercial
Code as in effect in any relevant jurisdiction (the "UCC") or under other
relevant law) of any of the foregoing, and in any event, including, without
limitation, any and all (i) proceeds of any insurance (except payments made
to a Person which is not a party to this Agreement), indemnity, warranty or
guarantee payable to the Trustee or to Pledgor from time to time with re
spect to any of the Pledged Collateral, (ii) payments (in any form
whatsoever) made or due and payable to Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Pledged Collateral by any governmental
authority (or any person acting under color of a govern mental authority),
(iii) instruments representing obliga tions to pay amounts in respect of
the Pledged Collateral, (iv) products of the Pledged Collateral, and (v)
other amounts from time to time paid or payable under or in connection with
any of the Pledged Collateral.
Section 2. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. (S) 362(a)) of (i) all obligations of the Issuers now existing or
hereafter arising under or in respect of the Indenture (including, without
limitation, the Issuers' obligation to pay principal or premium, if any, and
interest on the Securities when due and payable) and all other charges, fees,
expenses, commissions, reimbursements, premiums, indemnities and all other
amounts due or to become due under or in connection with the Indenture and the
Securities, and (ii) without duplication of the amounts described in clause (i),
all obligations, indebtedness and liabilities of Pledgor now existing or
hereafter arising under or in respect of this Agreement, including, without
limitation,
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with respect to all charges, fees, expenses, commissions, reimbursements,
premiums, indemnities and other payments related to or in respect of the
obligations contained in this Agreement, in each case whether in the regular
course of business or otherwise (the obligations described in clauses (i) and
(ii), collectively, the "Secured Obligations").
Section 3. No Release. Nothing set forth in this Agreement shall
relieve Pledgor from the performance of any term, covenant, condition or
agreement on Pledgor's part to be performed or observed under or in respect of
any of the Pledged Collateral or from any liability to any Person under or in
respect of any of the Pledged Collateral or shall impose any obligation on the
Trustee or any Secured Party to perform or observe any such term, covenant,
condition or agreement on Pledgor's part to be so performed or observed or shall
impose any liability on the Trustee or any Secured Party for any act or omission
on the part of Pledgor relating thereto or for any breach of any representation
or warranty on the part of Pledgor contained in this Agreement, under or in
respect of the Pledged Collateral or made in connection herewith or therewith.
The obligations of Pledgor contained in this Section 3 shall survive the
termination of this Agreement and the discharge of Pledgor's other obligations
under this Agreement.
Section 4. Delivery of Pledged Collateral.
(a) All certificates, agreements or instruments representing or
evidencing the Pledged Collateral, to the extent not previously delivered to the
Trustee, shall immedi ately upon receipt thereof by Pledgor be delivered to and
held by or on behalf of the Trustee pursuant hereto; provided, however, that to
the extent the certificates or notes repre senting the Pledged Securities that
have been delivered to the Trustee are in bearer form, the Trustee shall, on
request of the Pledgor, release and exchange such certificates or notes for
certificates and notes in registered form, issued in the name of the Pledgor and
an appropriate amendment to this Agreement shall be executed by the Pledgor. All
Pledged Collateral shall be in suitable form for transfer by delivery or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to the Trustee. The Trustee
shall have the right, at any time upon the occurrence of an Event of Default (as
defined in the Indenture) which is continuing and without notice to Pledgor
(except as required by law), to endorse, assign or otherwise transfer to or to
register in the name of the Trustee or any of its nominees any or all of the
Pledged Collateral. In addition,
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the Trustee shall have the right at any time to exchange certificates
representing or evidencing Pledged Collateral for certificates of smaller or
larger denominations.
(b) If the issuer of Pledged Shares is incorporated in a jurisdiction
which does not permit the use of certificates to evidence equity ownership, then
Pledgor shall, to the extent permitted by applicable law, record such pledge on
the stock register of the issuer, execute any customary stock pledge forms or
other documents necessary or appropriate to complete the pledge and give the
Trustee the right to transfer such Pledged Shares under the terms hereof and
provide to the Trustee an opinion of counsel, in form and substance satisfactory
to the Trustee, confirming such pledge.
Section 5. Supplements, Further Assurances.
(a) Pledgor agrees that at any time and from time to time, at the sole
cost and expense of Pledgor, Pledgor shall promptly execute and deliver all
further instruments and documents, including, without limitation, supplemental
or additional UCC-1 financing statements, and take all further action that may
be necessary or that the Trustee may reasonably request, in order to perfect and
protect the pledge, security interest and Lien granted or purported to be
granted hereby or to enable the Trustee to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral.
(b) Pledgor shall, upon obtaining any additional Pledged Securities,
promptly (and in any event within five Business Days) deliver to the Trustee a
pledge amendment, duly executed by Pledgor, in substantially the form of Exhibit
1 hereto (each, a "Pledge Amendment"), in respect of the additional Pledged
Securites which are to be pledged pursuant to this Agreement, and confirming the
attachment of the Lien hereby created on and in respect of such additional
securities. Pledgor hereby authorizes the Trustee to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Securities listed on any
Pledge Amendment delivered to the Trustee shall for all purposes hereunder be
considered Pledged Collateral.
Section 6. Representations, Warranties and Covenants. Pledgor
represents, warrants and covenants as follows:
(a) Perfection Actions; Prior Liens. Upon the completion of the
deliveries, filings and other actions contemplated hereby, the security
interest granted to Trustee
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for the benefit of the Secured Parties pursuant to this Agreement in and to
the Pledged Collateral will constitute a perfected security interest
therein, superior and prior to the rights of all other Persons therein
other than with respect to the Liens identified on Annex A relating to the
items of Pledged Collateral identified on such annex (the "Prior Liens").
(b) No Liens. Pledgor is as of the date hereof, and, as to Pledged
Collateral acquired by it from time to time after the date hereof, Pledgor
will be, the sole direct and beneficial owner of all Pledged Collateral
pledged by it hereunder free from any Lien or other right, title or
interest of any Person other than Prior Liens, and Pledgor shall defend the
Pledged Collateral pledged by it hereunder against all claims and demands
of all Persons at any time claiming any interest therein adverse to Trustee
or any Secured Party. There is no agreement, and Pledgor shall not enter
into any agreement or take any other action, that would result in the
imposition of any other Lien, restrict the transferability of any of the
Pledged Collateral or otherwise impair or conflict with Pledgor's
obligations or the rights of Trustee hereunder, other than Prior Liens.
(c) Other Financing Statements. There is no financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) covering or purporting to cover any interest of any kind in
the Pledged Collateral other than financing statements relating to (i)
Prior Liens and (ii) this Agreement.
(d) No Conflicts, Consents, etc. Neither the execution and delivery of
this Agreement by Pledgor nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof (i) violates any
charter or by-laws or other organizational document of Pledgor or any
issuer of Pledged Securities, (ii) violates the terms of any agreement,
indenture, mortgage, deed of trust, equipment lease, instrument or other
document to which Pledgor is a party, or by which it may be bound or to
which any of its properties or assets may be subject, which violation or
conflict would have a material adverse effect on Coaxial or a material
adverse effect on the value of the Pledged Collateral or an adverse effect
on the security interests hereunder, (iii) conflicts with any law, order,
rule or regulation applicable to Pledgor of any governmental authority
having jurisdiction over
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Pledgor or its property, or (iv) results in or requires the creation or
imposition of any Lien (other than the Lien contemplated hereby) upon or
with respect to any of the property now owned or hereafter acquired by
Pledgor. No consent of any party (including, without limitation,
equityholders or creditors of Pledgor or any account debtor under a
Receivable) and no consent, authorization, approval, license or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for (x) the pledge by Pledgor
of the Pledged Collateral pledged by it pursuant to this Agreement or for
the execution, delivery or performance of this Agreement by Pledgor, (y)
the exercise by Trustee of the rights provided for in this Agreement or (z)
the exercise by Trustee of the remedies in respect of the Pledged
Collateral pursuant to this Agreement. In the event that Trustee desires to
exercise any remedies or powers set forth in this Agreement and determines
it necessary to obtain any approvals or consents of any governmental
authority or any other Person therefor, then, upon the reasonable request
of Trustee, Pledgor agrees to use its reasonable best efforts to assist and
aid Trustee to obtain as soon as practicable any necessary approvals for
the exercise of any such remedies, rights and powers.
(e) Due Authorization and Issuance. All of the Pledged Shares have
been, and to the extent hereafter issued will be upon such issuance, duly
authorized and validly issued and fully paid and nonassessable.
(f) Chief Executive Office. Pledgor's chief executive office is
managed at 126 East 56th Street, New York, NY 10022, c/o Insight
Communications Company, L.P. Pledgor shall not move its chief executive
office except to such new location as Pledgor may establish in accordance
with the last sentence of this Section 6(f). Pledgor shall not establish a
new location for its chief executive office nor shall it change its name
until (i) it shall have given the Trustee not less than 45 days' prior
written notice of its intention so to do, clearly describing such new
location or name and providing such other information in connection
therewith as the Trustee or any Secured Party may reasonably request, and
(ii) with respect to such new location or name, Pledgor shall have taken
all action satisfactory to the Trustee and the Secured Parties to maintain
the perfection and priority of the security interest of the Trustee for the
benefit of
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the Secured Parties in the Pledged Collateral intended to be granted
hereby.
(g) Delivery of Pledged Collateral; Filings. Pledgor has delivered to
the Trustee all certificates representing the Pledged Collateral and, if
requested by the Trustee, has delivered to the Trustee appropriate UCC-1
financing statements to be filed with the Secretary of State of the States
of New York and in such other jurisdiction as is necessary or advisable to
create a valid and perfected first priority security interest in the
Pledged Collateral, in each case, evidencing the Lien created by this
Agreement, and such delivery, filing and pledge of the Pledged Collateral
pursuant to this Agreement will create a valid and perfected first priority
security interest in the Pledged Collateral securing the payment of the
Secured Obligations pursuant to: (i) the UCC in effect in each applicable
jurisdiction, including, without limitation, the State of New York and (ii)
the laws of any such other applicable jurisdiction.
(h) Pledged Collateral. All information set forth herein, including
the Schedules annexed hereto, and all information contained in any
documents, schedules and lists heretofore delivered to any Secured Party in
connection with this Agreement, in each case, relating to the Pledged
Collateral is accurate and complete in all material respects.
(i) No Violations, etc. The pledge of the Pledged Collateral pursuant
to this Agreement does not violate Regulation T, U or X of the Federal
Reserve Board.
(j) No Options, Warrants, etc. There are no options, warrants, calls,
rights, commitments or agreements of any character to which Pledgor is a
party or by which it is bound obligating Pledgor to issue, deliver or sell
or cause to be issued, delivered or sold, additional Pledged Shares or
obligating Pledgor to grant, extend or enter into any such option, warrant,
call, right, commitment or agreement. There are no voting trusts or other
agreements or understandings to which Pledgor is a party with respect to
the voting of the capital stock of any issuer of the Pledged Shares except
for the Management Agreement between the Pledgor and Insight Holdings of
Ohio, LLC.
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Section 7. Voting Rights; Distributions; etc.
(a) (i) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Shares or any part thereof for
any purpose not inconsistent with the terms or purpose of this Agreement or the
Indenture; provided, however, that Pledgor shall not in any event knowingly
exercise such rights in any manner which would impair the Lien on or have a
material adverse effect on the value of the Pledged Collateral or the security
intended to be provided by this Agreement.
(ii) So long as no Event of Default shall have occurred which is
continuing, Pledgor shall be entitled to receive and retain, and to utilize
free and clear of the Lien of this Agreement, any and all Distributions,
but only if and to the extent made in accordance with the provisions of the
Indenture; provided, however, that any and all such Distributions
consisting of rights or interests in the form of securities shall be, and
shall be forthwith delivered to the Trustee to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit of
the Trustee, be segregated from the other property or funds of Pledgor, and
be forthwith delivered to the Trustee as Pledged Collateral in the same
form as so received (with any necessary endorsement).
(iii) The Trustee shall be deemed without further action or formality
to have granted to Pledgor all necessary consents relating to voting rights
and shall, if necessary, upon written request of Pledgor and at Pledgor's
sole cost and expense, from time to time execute and deliver (or cause to
be executed and delivered) to Pledgor all such instruments as Pledgor may
reasonably request in order to permit Pledgor to exercise the voting and
other rights which it is entitled to exercise pursuant to Section 7(a)(i)
hereof and to receive the Distributions which it is authorized to receive
and retain pursuant to Section 7(a)(ii) hereof.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) all rights of Pledgor to exercise the voting and other consensual
rights it would otherwise be entitled to exercise pursuant to Section
7(a)(i) hereof without any action or the giving of any notice shall cease,
and all such rights shall during the continuance of such Event of
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Default become vested in the Trustee, which shall thereupon have the sole
right to exercise such voting and other consensual rights.
(ii) all rights of Pledgor to receive Distributions which it would
otherwise be authorized to receive and retain pursuant to Section 7(a)(ii)
hereof shall cease and all such rights shall during the continuance of such
Event of Default become vested in the Trustee, which shall thereupon have
the sole right to receive and hold as Pledged Collateral such
Distributions.
(c) Pledgor shall, at its sole cost and expense, from time to time
execute and deliver to the Trustee appropriate instruments as the Trustee may
reasonably request in order to permit the Trustee to exercise the voting and
other rights which it may be entitled to exercise pursuant to Section 7(b)(i)
hereof and to receive all Distributions which it may be entitled to receive
under Section 7(b)(ii) hereof.
(d) All Distributions which are received by Pledgor contrary to the
provisions of Section 7(b)(ii) hereof shall be received in trust for the benefit
of the Trustee, shall be segregated from other funds of Pledgor and shall
immediately be paid over to the Trustee as Pledged Collateral in the same form
as so received (with any necessary endorsement).
Section 8. Transfers and Other Liens; Additional Shares; Principal
Office.
(a) Pledgor shall not (i) sell, convey, assign or otherwise dispose
of, or grant any option, right or warrant with respect to, any of the Pledged
Collateral except as permitted by the Indenture or the Prior Liens, (ii) create
or permit to exist any Lien upon or with respect to any Pledged Collateral other
than the Lien and security interest granted to the Trustee pursuant to this
Agreement and Prior Liens, or (iii) permit the issuer of the Pledged Shares to
merge, consolidate or change its legal form, unless (a) such transaction is
permitted by the Indenture and (b) all of the outstanding capital stock of the
surviving or resulting corporation issued in respect of the Pledged Collateral
is, upon such merger or consolidation, pledged hereunder.
(b) Pledgor shall (i) cause each issuer of the Pledged Shares not to
issue any stock or other securities in addition to or in substitution for the
Pledged Shares issued by such issuer, except to Pledgor and (ii) pledge
hereunder, imme-
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diately upon its acquisition (directly or indirectly) thereof, any and all
additional shares of capital stock or other equity securities of the issuer of
the Pledged Shares which are required to be pledged hereunder.
Section 9. Reasonable Care. The Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which the Trustee, in its individual capacity,
accords its own property consisting of similar instruments or interests, it
being understood that neither the Trustee nor any of the Secured Parties shall
have responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not the Trustee or any other Secured Party has or
is deemed to have knowledge of such matters, or (ii) taking any necessary steps
to preserve rights against any Person with respect to any Pledged Collateral.
Section 10. Remedies Upon Default; Decisions Relating to Exercise of
Remedies.
(a) If an Event of Default shall have occurred which is continuing,
the Trustee shall have the right, in addition to other rights and remedies
provided for herein or otherwise available to it to be exercised from time to
time, (i) to retain and apply the Distributions to the Secured Obligations as
provided in Section 11 hereof, (ii) enforce the mandatory redemption provisions
of the Series B Preferred Interests of Insight Communications of Central Ohio,
LLC ("Insight Ohio") pursuant to the operating agreement, as amended, (the
Operating Agreement) of Insight Ohio and (iii) to exercise all the rights and
remedies of a secured party on default under the UCC in effect in the State of
New York at that time or under the laws of any other applicable jurisdiction,
and the Trustee may also in its sole discretion, without notice except as
specified below, sell the Pledged Collateral or any part thereof (including,
without limitation, any partial interest in the Pledged Securities) in one or
more parcels at public or private sale, at any exchange, broker's board or at
any of the Trustee's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as may be
commercially reasonable, irrespective of the impact of any such sales on the
market price of the Pledged Collateral. The Trustee or any other Secured Party
or any of their respective Affiliates may be the purchaser of any or all of the
Pledged Collateral at any such sale and shall be entitled, for the purpose
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of bidding and making settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at such sale, to use and apply any of the
Secured Obligations owed to such Person as a credit on account of the purchase
price of any Pledged Collateral payable by such Person at such sale. Each
purchaser at any such sale shall acquire the property sold absolutely free from
any claim or right on the part of Pledgor, and Pledgor hereby waives, to the
fullest extent permitted by law, all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. Pledgor acknowledges and agrees that,
to the extent notice of sale shall be required by law, ten days notice to
Pledgor of the time and place of any public sale or the time after which any
private sale or other intended disposition is to take place shall constitute
reasonable notification of such matters. No notification need be given to
Pledgor if it has signed, after the occurrence and during the continuance of an
Event of Default, a statement renouncing or modifying any right to notification
of sale or other intended disposition. The Trustee shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having been
given. The Trustee may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Subject to the Trustee acting at all times in good faith and in a commercially
reasonable manner, Pledgor hereby waives, to the fullest extent permitted by
law, any claims against the Trustee arising by reason of the fact that the price
at which any Pledged Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale, even if the
Trustee accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree. Subject to the Trustee at all times acting
in good faith and in a commercially reasonable manner, the Trustee shall not be
liable for any incorrect or improper payment made pursuant to this Section 10 in
the absence of gross negligence or willful misconduct.
(b) Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act, and applicable state securities laws, the
Trustee may be compelled, with respect to any sale of all or any part of the
Pledged Collateral, to limit purchasers to Persons who will agree, among other
things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. Pledgor acknowledges
that any such private sales may be at prices and on terms less favorable to the
Trus-
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tee than those obtainable through a public sale without such restrictions
(including, without limitation, a public offering made pursuant to a
registration statement under the Securities Act), and, notwithstanding such
circumstances, agrees that, subject to the Trustee at all times acting in good
faith and in a commercially reasonable manner, any such private sale shall be
deemed to have been made in a commercially reasonable manner and that the
Trustee shall have no obligation to engage in public sales and no obligation to
delay the sale of any Pledged Collateral for the period of time necessary to
permit the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state securities laws,
even if such issuer would agree to do so.
(c) Notwithstanding the foregoing, Pledgor shall, upon the occurrence
of an Event of Default, at the request of the Trustee, for the benefit of the
Trustee, cause any registration, qualification under or compliance with any
federal or state securities law or laws to be effected with respect to all or
any part of the Pledged Collateral as soon as practicable and at Pledgor's sole
cost and expense. Pledgor will use its reasonable efforts to cause such
registration to be effected (and be kept effective) and will use its reasonable
efforts to cause such qualification and compliance to be effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Pledged Collateral, including, without limitation,
registration under the Securities Act (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with any other government requirements. Pledgor
shall cause the Trustee to be kept advised in writing as to the progress of each
such registration, qualification or compliance and as to the completion thereof,
shall furnish to the Trustee such number of prospectuses, offering circulars or
other documents incident thereto as the Trustee from time to time may request,
and shall indemnify and shall cause the issuer of the Pledged Collateral to
indemnify the Trustee and all others participating in the distribution of such
Pledged Collateral against all claims, losses, damages and liabilities caused by
any untrue statement (or alleged untrue statement) of a material fact contained
therein (or in any related registration statement, notification or the like) or
by any omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which made not misleading.
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(d) If the Trustee determines to exercise its right to sell any or all
of the Pledged Collateral, upon written request, Pledgor shall from time to time
furnish to the Trustee all such information as the Trustee may request in order
to determine the number of securities included in the Pledged Collateral which
may be sold by the Trustee as exempt transactions under the Securities Act and
the rules of the SEC thereunder, as the same are from time to time in effect.
(e) Pledgor recognizes that, by reason of certain prohibitions
contained in laws, rules, regulations or orders of any foreign governmental
authority, the Trustee may be compelled, with respect to any sale of all or any
part of the Pledged Collateral, to limit purchasers to those who meet the
requirements of such foreign governmental authority. Pledgor acknowledges that
any such sales may be at prices and on terms less favorable to the Trustee than
those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that, subject to the Trustee at all
times acting in good faith, any such restricted sale shall be deemed to have
been made in a commercially reasonable manner and that, except as may be
required by applicable law, the Trustee shall have no obligation to engage in
public sales.
(f) In addition to any of the other rights and remedies hereunder, the
Trustee shall have the right to institute a proceeding seeking specific
performance in connection with any of the agreements or obligations hereunder or
under the mandatory redemption provisions of the Series B Preferred Interests of
Insight Ohio pursuant to the Operating Agreement.
(g) Notwithstanding any other provision of this Agreement, any
foreclosure on, sale, transfer or other disposition of, or the exercise of any
right to vote or consent with respect to, any of the Pledged Collateral as
provided herein or any other action taken or proposed to be taken by the Trustee
hereunder which would affect the operational, voting or other control of the
Pledgor or any of its subsidiaries shall be made in accordance with all
applicable laws, rules and regulations, including the terms of any governmental
franchise under which the Pledgor or such subsidiary operates.
Section 11. Application of Proceeds. All Distributions held from time
to time by the Trustee and all proceeds received by the Trustee in respect of
any sale of, collection from, or other realization upon all or any part of the
Pledged Collateral pursuant to the exercise by the Trustee of its remedies as a
secured creditor as provided in Section 10 hereof
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shall be applied, together with any other sums then held by the Trustee pursuant
to this Agreement, promptly by the Trustee as set forth in the Indenture.
Section 12. Expenses. Pledgor will upon demand pay to the Trustee the
amount of any and all reasonable expenses, including the fees and expenses of
its counsel and the reasonable fees and reasonable expenses of any experts and
agents, which the Trustee may incur in connection with (i) the collection of the
Secured Obligations, (ii) the enforcement and administration of this Agreement,
(iii) the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (iv) the exercise or
enforcement of any of the rights of the Trustee or any Secured Party hereunder
or (v) the failure by Pledgor to perform or observe any of the provisions
hereof. All amounts payable by Pledgor under this Section 12 shall be due upon
demand and shall be part of the Secured Obligations. Pledgor's obligations under
this Section 12 shall survive the termination of this Agreement and the
discharge of Pledgor's other obligations hereunder.
Section 13. No Waiver; Cumulative Remedies.
(a) No failure on the part of the Trustee to exercise, no course of
dealing with respect to, and no delay on the part of the Trustee in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein provided are cumulative and
are not exclusive of any remedies provided by law.
(b) In the event the Trustee shall have instituted any proceeding to
enforce any right, power or remedy under this Agreement by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Trustee,
then and in every such case, to the extent permitted by law, Pledgor, the
Trustee and each Secured Party shall be restored to their respective former
positions and rights hereunder with respect to the Pledged Collateral, and all
rights, remedies and powers of the Trustee and the Secured Parties shall
continue as if no such proceeding had been instituted.
Section 14. The Trustee. The Trustee has been appointed as the trustee
pursuant to the Indenture. The actions
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of the Trustee hereunder are subject to the provisions of the Indenture. The
Trustee shall have the right hereunder to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or refrain from
taking action (including, without limitation, the release or substitution of
Pledged Collateral), in accordance with this Agreement and the Indenture. The
Trustee may resign and a successor Trustee may be appointed in the manner
provided in the Indenture. Upon the acceptance of any appointment as the Trustee
by a successor Trustee, that successor Trustee shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Trustee under this Agreement, and the retiring Trustee shall thereupon be
discharged from its duties and obligations under this Agreement. After any
retiring Trustee's resignation, the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was the Trustee.
Section 15. The Trustee May Perform; the Trustee Appointed Attorney-
in-Fact. The Pledgor shall from time to time, and at all times after an Event of
Default shall have occurred, execute all such further instruments and documents
and do all such things as the Trustee may reasonably deem desirable for the
purpose of obtaining the full benefit of this Agreement and of the rights,
title, interest, powers, authorities and discretions conferred on the Trustee by
this Agreement. The Pledgor hereby irrevocably appoints the Trustee its
attorney-in-fact for it and in its name and on its behalf and as its act and
deed to execute, seal and deliver and otherwise perfect any deed, assurance,
agreement, instrument or take any action which it may deem necessary or
advisable for any of the purposes of this Agreement; provided that the Trustee
shall not exercise such power until an Event of Default shall have occurred and
is continuing. The Trustee shall have full power to delegate this power of
attorney but no such delegation shall preclude the subsequent exercise of such
power by the Trustee itself or preclude the Trustee from subsequent delegation
to some other person and any delegation may be revoked by the Trustee at any
time. The foregoing grant of authority is a power of attorney coupled with an
interest and such appointment shall be irrevocable for the term of this
Agreement. The Pledgor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof. Any and all amounts expended by the
Trustee pursuant to this Section 15 shall be paid by Pledgor promptly upon
demand therefor, with interest at the rate then in effect under the Indenture
during the period from and including the date on which funds were so expended to
the date of repayment. Pledgor's obligations under this Section 15 shall
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survive the termination of this Agreement and the discharge of Pledgor's other
obligations under this Agreement and the Indenture.
Section 16. Indemnity.
(a) Indemnity. Pledgor agrees to indemnify, pay and hold harmless the
Trustee and each of the Secured Parties and the officers, directors, employees,
agents and Affiliates of the Trustee and each of the Secured Parties
(collectively, the "Indemnitees") from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs (including, without limitation, settlement costs), expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto), which may be imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of this Agreement
(including, without limitation, any misrepresentation by Pledgor in this
Agreement) (the "indemnified liabilities"); provided that Pledgor shall not have
any obligation to an Indemnitee hereunder with respect to indemnified
liabilities if it has been determined by a final decision (after all appeals and
the expiration of time to appeal) of a court of competent jurisdiction that such
indemnified liability arose from the gross negligence or willful misconduct of
that Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, Pledgor shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them.
(b) Survival. The obligations of Pledgor contained in this Section 16
shall survive the termination of this Agreement and the discharge of Pledgor's
other obligations under this Agreement.
(c) Reimbursement. Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Secured Obligations
secured by the Pledged Collateral.
Section 17. Modification in Writing. No amendment, modification,
supplement, termination or waiver of or to any
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provision of this Agreement, nor consent to any departure by Pledgor therefrom,
shall be effective unless the same shall be done in accordance with the terms of
the Indenture and unless in writing and signed by the Trustee. Any amendment,
modification or supplement of or to any provision of this Agreement, any waiver
of any provision of this Agreement and any consent to any departure by Pledgor
from the terms of any provision of this Agreement shall be effective only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement or the Indenture, no
notice to or demand on Pledgor in any case shall entitle Pledgor to any other or
further notice or demand in similar or other circumstances.
Section 18. Termination; Release. When all the Secured Obligations
have been paid in full, this Agreement shall terminate. Upon termination of this
Agreement or any release of Pledged Collateral in accordance with the provisions
of the Indenture, the Trustee shall, upon the request and at the sole cost and
expense of Pledgor, forthwith assign, transfer and deliver to Pledgor, against
receipt and without recourse to or warranty by the Trustee, such of the Pledged
Collateral to be released (in the case of a release) as may be in the possession
of the Trustee and as shall not have been sold or otherwise applied pursuant to
the terms hereof, and, with respect to any other Pledged Collateral, proper
instruments (including UCC termination statements on Form UCC-3) acknowledging
the termination of this Agreement or the release of such Pledged Collateral, as
the case may be.
Section 19. Notices. Unless otherwise provided herein or in the
Indenture, any notice or other communication herein required or permitted to be
given shall be given in the manner set forth in the Indenture, as to either
party, addressed to it at the address set forth in the Indenture or at such
other address as shall be designated by such party in a written notice to the
other party complying as to delivery with the terms of this Section 19; provided
that notices to the Trustee shall not be effective until received by the
Trustee.
Section 20. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon Pledgor, its successors and assigns and (ii) inure, together
with the rights and remedies of the Trustee hereunder, to the benefit of the
Trustee and the other Secured Parties and each of their respective successors,
transferees and assigns; no other Persons (including, without limitation, any
other credi-
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tor of Pledgor) shall have any interest herein or any right or benefit with
respect hereto. Without limiting the generality of the foregoing clause (ii),
any Secured Party may assign or otherwise transfer any indebtedness held by it
secured by this Agreement to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Secured Party, herein or otherwise, subject however, to the provisions of the
Indenture.
Section 21. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PROPERTY ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 22. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Pledgor submits
to the non-exclusive jurisdiction of any federal or state court in The City of
New York, Borough of Manhattan, State of New York in any suit or proceeding
arising out of or relating to this Agreement or the Pledged Collateral or that
may be instituted or brought under federal or state securities laws.
To the extent that the Pledgor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement. In addition, the Pledgor irrevocably waives and agrees not to assert,
by way of motion, as a defense, or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
the above-mentioned courts for any reason whatsoever, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue for such suit
is improper, or that this Agreement or the subject matter hereof may not be
enforced in such courts.
The Pledgor and the Trustee agree that a final judgment in any such
suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Section 22 shall affect the right of the Trustee to serve legal
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process in any other manner permitted by law or affect the right of the Trustee
to bring any action or proceeding against any Pledgor or its property in the
courts of any other jurisdictions.
Section 23. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 24. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same Agreement.
Section 25. Headings. The Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
Section 26. Obligations Absolute. All obligations of Pledgor hereunder
shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of Pledgor;
(ii) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Indenture
or any other agreement or instrument relating thereto;
(iv) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to any departure from
any guarantee, for all or any of the Secured Obligations;
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(v) any exercise or non-exercise, or any waiver of any right, remedy,
power or privilege under or in respect of this Agreement, the Indenture or
any other documents relating to the Indenture except as specifically set
forth in a waiver granted pursuant to the provisions of Section 17 hereof;
or
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
IN WITNESS WHEREOF, Pledgor and the Trustee have caused this Agreement
to be duly executed and delivered by their duly authorized officers as of the
date first above written.
COAXIAL LLC, as Pledgor
By: /s/ Kim Kelly
-------------------------------------
Name: Kim Kelly
Title: Executive Vice President
BANK OF MONTREAL TRUST COMPANY
as the Trustee
By: /s/ Amy Roberts
-------------------------------------
Name: Amy Roberts
Title: Vice President
SCHEDULE I
----------
Pledged Shares
--------------
PERCENTAGE OF
ALL CAPITAL OR
NUMBER OTHER EQUITY
CLASS CERTIFICATE OF INTERESTS OF
ISSUER OF STOCK NO(S). SHARES ISSUER
- ------ -------- ----------- ------ --------------
Coaxial Communications Common 13 729 67.5%
of Central Ohio, Inc.
SCHEDULE II
Notes
PRINCIPAL DATE OF INTEREST MATURITY
ISSUER AMOUNT ISSUANCE RATE DATE
- ------ -------- -------- -------- --------------
Coaxial DJM LLC $12,570,525 August 21, 1998 12 7/8 August 15, 2008
Coaxial DSM LLC $ 5,586,900 August 21, 1998 12 7/8 August 15, 2008
EXHIBIT 1
---------
PLEDGE AMENDMENT
This Pledge Amendment, dated ______________, is delivered pursuant to
Section 5 of the Agreement referred to below. The undersigned hereby agrees that
this Pledge Amendment may be attached to the Securities Pledge Agreement, dated
as of August 21, 1998, between the undersigned and Bank of Montreal Trust
Company, as the Trustee (the "Agreement"; capitalized terms used herein and not
defined shall have the meanings assigned to them in the Agreement) and that the
Pledged Securities listed on this Pledge Amendment shall be deemed to be and
shall become part of the Pledged Collateral and shall secure all Secured
Obligations.
COAXIAL LLC, as Pledgor
By:
-------------------------------------
Name:
Title:
Pledged Shares
--------------
PERCENTAGE OF ALL
CAPITAL OR OTHER
CLASS OF PAR CERTIFICATE NUMBER OF EQUITY INTERESTS
ISSUER STOCK VALUE NO(S). SHARES OF ISSUER
- ------ -------- ----- ----------- --------- -----------------
Notes
-----
PRINCIPAL DATE OF INTEREST MATURITY
ISSUER AMOUNT ISSUANCE RATE DATE
- ------ -------- -------- -------- --------------
ANNEX A
-------
Prior Liens
-----------
The ability of the Pledgor to control Coaxial and its affiliate,
Insight Communications of Central Ohio, LLC, a Delaware limited liability
company ("Insight Ohio"), is limited pursuant to the operating agreement of
Insight Ohio and pursuant to the Management Agreement between the Pledgor and
Insight Holdings of Ohio, LLC.