EXHIBIT 4.6
SECURITIES PLEDGE AGREEMENT
SECURITIES PLEDGE AGREEMENT (this "Agreement"), dated as of August 21,
1998, made by COAXIAL DSM 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 COAXIAL LLC ("Coaxial" or,
together with any successors or assigns, the "Secured Party").
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 Coaxial, Coaxial
Financing Corp. ("Financing Corp." and together with Pledgor the "Issuers"), the
Guarantor named therein and Bank of Montreal Trust Company, as trustee (the
"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. The Pledgor issued to Coaxial its 12 7/8% Mirror Note due 2008 in an
aggregate principal amount at maturity of $[XXXXXX] (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "LLC Mirror
Note"; capitalized terms used herein and not defined shall have the meanings
assigned to them in the LLC Mirror Note), evidencing its obligation to repay a
loan in that amount made to it by Coaxial from the proceeds of the sale of the
Securities.
C. Except as set forth on Annex A, Pledgor is the legal and beneficial
owner of the Pledged Collateral (as hereinafter defined).
D. 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
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Secured Party, for the benefit of itself and the holders of the Securities
(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 Secured Party hereby agree as follows:
Section 1. Pledge. In order to secure the payment and performance when
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due of all the Secured Obligations, Pledgor hereby pledges, assigns, transfers
and grants to the Secured Party 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. ("Central") set forth on Schedule I hereto (the "Pledged Shares")
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(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 Central 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, including 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 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
Shares (collectively, "Distributions");
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(d) 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 Secured Party or to Pledgor from time to time with
respect 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 governmental authority),
(iii) instruments representing obligations 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
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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 Pledgor now existing or hereafter arising
under or in respect of the LLC Mirror Note (including, without limitation, the
Pledgor's obligation to pay principal or premium, if any, and interest on the
LLC Mirror Note 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 LLC Mirror Note, 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, 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
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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
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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
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 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.
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(a) All certificates, agreements or instruments representing or
evidencing the Pledged Collateral, to the extent not previously delivered to the
Secured Party, shall immediately upon receipt thereof by Pledgor be delivered to
and held by or on behalf of the Secured Party pursuant hereto; provided,
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however, that to the extent the certificates representing the Pledged Shares
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that have been delivered to the Secured Party are in bearer form, the Secured
Party shall, on request of the Pledgor, release and exchange such certificates
for certificates 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 Secured Party. The
Secured Party shall have the right, at any time upon the occurrence of an Event
of Default (as defined in the LLC Mirror Note) 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 Secured Party or any of its
nominees any or all of the Pledged Collateral. In addition, the Secured Party
shall have the
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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
Secured Party the right to transfer such Pledged Shares under the terms hereof
and provide to the Secured Party an opinion of counsel, in form and substance
satisfactory to the Secured Party, confirming such pledge.
Section 5. Supplements, Further Assurances.
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(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 Secured Party 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 Secured Party to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral.
(b) Pledgor shall, upon obtaining any additional Pledged Shares, promptly
(and in any event within five Business Days) deliver to the Secured Party a
pledge amendment, duly executed by Pledgor, in substantially the form of Exhibit
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1 hereto (each, a "Pledge Amendment"), in respect of the additional Pledged
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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 Secured Party to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Shares listed on any
Pledge Amendment delivered to the Secured Party shall for all purposes hereunder
be considered Pledged Collateral.
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Section 6. Representations, Warranties and Covenants. Pledgor
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represents, warrants and covenants as follows:
(a) Perfection Actions; Prior Liens. Upon the completion of the
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deliveries, filings and other actions contemplated hereby, the security
interest granted to Secured Party 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
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annex (the "Prior Liens").
(b) No Liens. Pledgor is as of the date hereof, and, as to Pledged
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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 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 Secured Party hereunder, other than Prior Liens.
(c) Other Financing Statements. There is no financing statement (or
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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
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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 Shares, (ii) violates
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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 Central 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 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 Secured Party
of the rights provided for in this Agreement or (z) the exercise by Secured
Party of the remedies in respect of the Pledged Collateral pursuant to this
Agreement. In the event that Secured Party 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 Secured Party,
Pledgor agrees to use its reasonable best efforts to assist and aid Secured
Party 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,
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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
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at 126 East 56th Street, New York, NY 10022, c/o Insight Communications
Company, L.P.
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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(e). 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 Secured Party 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 Secured
Party may reasonably request, and (ii) with respect to such new location or
name, Pledgor shall have taken all action satisfactory to the Secured Party
to maintain the perfection and priority of the security interest of the
Secured Party for the benefit of the Secured Parties in the Pledged
Collateral intended to be granted hereby.
(g) Delivery of Pledged Collateral; Filings. Pledgor has delivered to the
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Secured Party all certificates representing the Pledged Collateral and, if
requested by the Secured Party, has delivered to the Secured Party
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
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Schedules annexed hereto, and all information contained in any documents,
schedules and lists heretofore delivered to the Secured Party in connection
with this Agreement, in each case, relating to the Pledged Collateral is
accurate and complete in all material respects.
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(i) No Violations, etc. The pledge of the Pledged Collateral pursuant to
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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,
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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.
Section 7. Voting Rights; Distributions; etc.
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(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 LLC Mirror Note; provided, however, that Pledgor shall not
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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
LLC Mirror Note; provided, however, that any and all such Distributions
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consisting of rights or interests in the form of securities shall be, and
shall be forthwith delivered to the Secured Party to hold as Pledged
Collateral and shall, if received by Pledgor, be received in trust for the
benefit of the Secured Party, be segregated from the other property or
funds of Pledgor, and be forthwith delivered to the Secured Party
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as Pledged Collateral in the same form as so received (with any necessary
endorsement).
(iii) The Secured Party 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 Default become vested in
the Secured Party, 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 Secured Party, 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 Secured Party appropriate instruments as the Secured
Party may reasonably request in order to permit the Secured Party 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.
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(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 Secured Party, shall be segregated from other funds of Pledgor and shall
immediately be paid over to the Secured Party as Pledged Collateral in the same
form as so received (with any necessary endorsement).
Section 8. Transfers and Other Liens; Additional Shares; Principal
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Office.
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(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 LLC Mirror Note 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 Secured
Party 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, immediately 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 Secured Party shall be deemed to have
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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 Secured Party, in its individual
capacity, accords its own property consisting of similar instruments or
interests, it being understood that the Secured Party shall not 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 Secured
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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
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Remedies.
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(a) If an Event of Default shall have occurred which is continuing, the
Secured Party 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 and (ii) 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
Secured Party 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 Shares) in one or more
parcels at public or private sale, at any exchange, broker's board or at any of
the Secured Party'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 Secured Party 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 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
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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 Secured Party shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The Secured
Party 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
Secured Party 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 Secured Party 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
Secured Party accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree. Subject to the Secured Party at all times
acting in good faith and in a commercially reasonable manner, the Secured Party
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 Secured Party
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
Secured Party 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 Secured Party 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
Secured Party 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
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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 Secured Party, for the benefit of the
Secured Party, 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 best efforts to cause
such registration to be effected (and be kept effective) and will use its
reasonable best 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 Secured Party 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 Secured Party
such number of prospectuses, offering circulars or other documents incident
thereto as the Secured Party from time to time may request, and shall indemnify
and shall cause the issuer of the Pledged Collateral to indemnify the Secured
Party 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.
(d) If the Secured Party 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 Secured Party all such information as the Secured Party may
request in order to determine the number of securities included in the Pledged
Collateral which may be sold by the Secured
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Party 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
Secured Party 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 Secured Party than
those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that, subject to the Secured Party 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 Secured Party shall have no obligation to engage
in public sales.
(f) In addition to any of the other rights and remedies hereunder, the
Secured Party shall have the right to institute a proceeding seeking specific
performance in connection with any of the agreements or obligations hereunder.
(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 Secured
Party 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 Secured Party and all proceeds received by the Secured Party 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 Secured Party of
its remedies as a secured creditor as provided in Section 10 hereof shall be
applied, together with any other sums then held by the Secured Party pursuant to
this Agreement,
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promptly by the Secured Party as set forth in the LLC Mirror Note.
Section 12. Expenses. Pledgor will upon demand pay to the Secured Party
--------
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 Secured Party 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 Secured Party 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 Secured Party to exercise, no course of
dealing with respect to, and no delay on the part of the Secured Party 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 Secured Party 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 Secured
Party, then and in every such case, to the extent permitted by law, Pledgor, the
Secured Party 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 Secured Party and the Secured Parties
shall continue as if no such proceeding had been instituted.
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Section 14. The Secured Party. The Secured Party 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 LLC Mirror Note. The Secured Party may
resign and a successor Secured Party may be appointed. Upon the acceptance of
any appointment as the Secured Party by a successor Secured Party, that
successor Secured Party shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Secured Party under
this Agreement, and the retiring Secured Party shall thereupon be discharged
from its duties and obligations under this Agreement. After any retiring
Secured Party'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 Secured Party.
Section 15. The Secured Party May Perform; the Secured Party 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 Secured Party 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 Secured Party by this Agreement. The Pledgor hereby irrevocably appoints
the Secured Party 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 Secured Party shall not exercise such power until an Event of Default shall
have occurred and is continuing. The Secured Party shall have full power to
delegate this power of attorney but no such delegation shall preclude the
subsequent exercise of such power by the Secured Party itself or preclude the
Secured Party from subsequent delegation to some other person and any delegation
may be revoked by the Secured Party 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
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and all amounts expended by the Secured Party pursuant to this Section 15 shall
be paid by Pledgor promptly upon demand therefor, with interest at the rate then
in effect under the LLC Mirror Note 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 survive the termination of this
Agreement and the discharge of Pledgor's other obligations under this Agreement
and the LLC Mirror Note.
Section 16. Indemnity.
---------
(a) Indemnity. Pledgor agrees to indemnify, pay and hold harmless the
---------
Secured Party and the officers, directors, employees, agents and Affiliates of
the Secured Party (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
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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 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 LLC Mirror Note (as
incorporated by reference from the Indenture) and unless in writing and signed
by the Secured Party. 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 LLC Mirror Note, 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 LLC Mirror Note, the Secured Party 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 Secured
Party, such of the Pledged Collateral to be released (in the case of a release)
as may be in the possession of the Secured Party 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 LLC
-------
Mirror Note, any notice or other communication herein required or permitted to
be given shall be
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given in the manner set forth in the LLC Mirror Note, as to either party,
addressed to it at the address set forth in the LLC Mirror Note 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 Secured Party shall not be effective until received by the
Secured Party.
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 Secured Party hereunder, to the benefit of
the Secured Party and the other Secured Parties and each of their respective
successors, transferees and assigns; no other Persons (including, without
limitation, any other creditor 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 LLC Mirror Note.
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.
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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 Secured Party 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 Secured Party to serve
legal process in any other manner permitted by law or affect the right of the
Secured Party 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.
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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 LLC Mirror
Note 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 LLC Mirror
Note 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;
(v) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect of this Agreement, the LLC
Mirror Note or any other documents relating to the LLC Mirror Note 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.
Section 27. Pledge of Agreement. Pledgor acknowledges that pursuant to
-------------------
a pledge agreement dated as of the date hereof, Coaxial has pledged its rights
under this Agreement to the Trustee, for the benefit of Trustee and the holders
of the Securities and hereby agrees that upon exercise by Trustee of its rights
under such agreement, Trustee will be deemed to be the assignee of Coaxial
hereunder and will have all the rights of the Secured Party hereunder.
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IN WITNESS WHEREOF, Pledgor and the Secured Party have caused this
Agreement to be duly executed and delivered by their duly authorized officers as
of the date first above written.
COAXIAL DSM LLC, as Pledgor
By: /s/ Kim Kelly
--------------------------------
Name: Kim Kelly
Title: Executive Vice President
COAXIAL LLC
as the Secured Party
By: /s/ Kim Kelly
--------------------------------
Name: Kim Kelly
Title: Executive 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 15 108 10%
of Central Ohio, Inc.
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 Coaxial LLC, as the Secured Party
(the "Agreement"; capitalized terms used herein and not defined shall have the
meanings assigned to them in the Agreement) and that the Pledged Shares 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 DSM LLC,
as Pledgor
By:_____________________________
Name:
Title:
Pledged Shares
--------------
PERCENTAGE OF ALL
NUMBER CAPITAL OR OTHER
CLASS PAR CERTIFICATE OF EQUITY INTERESTS
ISSUER OF STOCK VALUE NO(S). SHARES OF ISSUER
-------- ----- ----------- ------ -----------------
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.