Exhibit 4.8
MIRROR NOTE
COAXIAL DJM LLC
Dated: August 21, 1998
FOR VALUE RECEIVED, the undersigned, COAXIAL DJM LLC, a Delaware limited
liability company (the "Obligor"), hereby unconditionally promises to pay to the
order of COAXIAL LLC ("COAXIAL"), a Delaware limited liability company, the
principal amount of TWELVE MILLION FIVE HUNDRED SEVENTY THOUSAND FIVE HUNDRED
TWENTY FIVE DOLLARS ($12,570,525) on August 15, 2008.
Reference is hereby made to the Indenture of even date herewith among
Coaxial LLC, a Delaware limited liability company ("Coaxial"), as a co-issuer,
Coaxial Financing Company, a Delaware corporation ("Coaxial Financing" and,
together with Coaxial, the "Issuers"), as a co-issuer, Insight Communications of
Central Ohio, LLC, as guarantor, and Bank of Montreal Trust Company, as trustee,
as amended or supplemented from time to time (the "Indenture"). There shall be
incorporated herein by this reference all of the terms and provisions of the
Indenture as though fully stated herein. Obligor shall be subject to all of
such terms and provisions (payment (including premium, if any), redemption and
otherwise) thereunder as if it were a co-issuer of the Discount Notes, provided
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that Obligor's obligation in respect thereof shall be limited to the proportion
of the principal amount or accreted value of the Discount Notes represented by
the aggregate principal value or accreted value of this Note.
1. Definitions. As referred to in this Note, all capitalized terms used
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and not defined shall have the meaning assigned to them in the Indenture, all
terms defined in this Note shall have the meanings assigned thereto herein and
the following terms shall have the meanings specified with respect thereto:
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default as to the Discount
Notes or Note Default as to this Note.
"Discount Notes" shall have the meaning assigned to the term "Notes"
in the Indenture.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"LLC Pledge Agreement" means the pledge agreement, dated as of August
21, 1998 between Obligor and Coaxial, as secured party.
A "Note Default" occurs if
(a) there is a default in payment of any principal of, or premium, if
any, on this Note when the same becomes due and payable at maturity, upon
acceleration or otherwise; (b) there is a default in the payment of any
interest on this Note when the same becomes due and payable and the Default
continues for a period of 30 days; or (c) there is a default by the Obligor
in the observance or performance of any other provision in this Note for 30
days after written notice from either the Trustee or Coaxial to the
Obligor; provided, however, that the meaning of "Event of Default" under
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the Indenture and as used herein shall not be limited in any way by this
definition of "Note Default."
"Pledge Agreement" means the pledge agreement, dated as of August 21,
1998 between Coaxial and the Bank of Montreal Trust Company, as trustee.
"Trustee" means the Trustee or successor thereof as provided for in
the Indenture.
2. Representations and Warranties. To induce the holder of this Note to
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accept this Note, the Obligor hereby represents and warrants to such holder
that:
(a) Obligor (i) is organized and existing under the laws of state set forth
on the first page of this Note; and (ii) is duly qualified, to the extent
required, to carry on its present businesses.
(b) Obligor has the limited liability company power and authority to
execute, deliver and carry out the terms and provisions of this Note and has
taken all necessary limited liability company action to authorize its execution,
delivery and performance. Obligor has duly executed and delivered this Note, and
this Note constitutes a legal, valid and binding obligation of Obligor
enforceable in accordance with its terms, except as such
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enforceability may be subject to (i) the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization, moratorium, or
similar laws affecting creditors' rights generally and (ii) general principles
of equity, regardless of whether considered in a proceeding in equity or at law.
(c) This Note is in proper legal form under the laws of the state of
formation of Obligor for the enforcement thereof in accordance with its terms
against the Obligor under such laws. Neither the filing nor the recording of
this Note or any other document with any court or any other government authority
nor the payment of any stamp or similar tax in respect of this Note is necessary
to ensure the legality, validity, enforceability or admissibility in evidence of
this Note.
(d) No order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with (except as have been obtained or
made), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Note or (ii) the
legality, validity, binding effect or enforceability of this Note.
(e) The execution, delivery and performance of this Note and the
consummation of the transactions contemplated hereby will not result in the
breach of any terms or provisions of, or constitute a default under any
judgment, decree or other agreement or instrument to which Obligor,s is a party
or by which it is bound, nor will it conflict with Obligor' organizational
documents.
(f) Obligor has complied with all laws, regulations or orders applicable to
its business, except for such failures to comply which would not reasonably be
expected to have a material adverse effect on Obligor's ability to perform its
obligations under this Note.
(g) Obligor has received a copy of the Indenture and agrees for the benefit
of any holder of this Note that it shall be bound by the defined terms and
provisions of the Indenture to which reference is made herein, or which are
incorporated herein.
3. Defaults and Remedies. If any Event of Default or Note Default occurs
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and is continuing, then the holder of this Note may, by written notice to
Obligor, declare the unpaid principal of, and any accrued interest on, this Note
to be due and
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payable immediately. If any Event of Default specified in clauses (6) or (7) of
Section 6.01 of the Indenture or if any acceleration of the Discount Notes
pursuant to Section 6.02 of the Indenture occurs, all outstanding principal and
interest on this Note will be immediately due and payable without any
declaration or other act on the part of the holder of this Note. Any
acceleration of this Note may be rescinded or annulled by the holder only upon a
corresponding rescission or annulment of any acceleration of the Discount Notes.
Subject to the preceding paragraph, if an Event of Default or Note Default
occurs and is continuing, the holder of this Note may pursue any available
remedy by proceeding at law or in equity to collect any payment due on this Note
or to enforce the performance of any provision of this Note.
4. Trustee Dealings with Obligor. The Trustee, in its individual or any
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other capacity (including as Paying Agent hereunder), may make loans to, accept
deposits from, and perform services for the Obligor or its Affiliates, and may
otherwise deal with the Obligor or its Affiliates, as if it were not Trustee.
5. No Recourse Against Others. No director, officer, agent, employee or
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member of the Obligor shall have any liability for any of Obligor's obligations
under this Note, or for a claim based on, in respect of, or by reason of, this
Note or its creation. The holder of this Note by accepting this Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
6. Non-recourse Obligation. This Note will be a non-recourse obligation
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of the Obligor and the only recourse a holder of the Note will have with respect
to the payment of principal or interest on this Note will be enforcement of the
rights granted pursuant to the LLC Pledge Agreement with respect to the Pledged
Collateral (as defined therein).
7. Notices. All notices, requests and demands to or upon the Obligor and
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the holder of this Note to be effective shall be in writing or by facsimile and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or in the case of facsimile notice, with
written confirmation of receipt, which confirmation may be by automatic
electronic means. All such notices, requests and demands shall be addressed, in
the case of the holder of this Note, to such address and transmission number for
notices provided to the Obligor from time to time by such holder, and in
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the case of the Obligor, as follows or to such other address as may be hereafter
notified by the Obligor:
Coaxial DJM LLC
c/o Insight Communications Company, L.P.
126 East 56th Street
New York, NY 10022
Fax: 212-371-1549
Attention: Chief Financial Officer
with copies to:
Coaxial Communications, Inc.
5111 Ocean Boulevard
Suite C
Sarasota, FL 34242
Fax: (941) 346-2788
Attention: Dennis J. McGillicuddy
and
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Ave., N.W.
Suite 800
Washington, D.C 20036-6802
Fax: (202) 776-2222
Attention: Timothy J. Kelley, Esq.
8. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
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exercising on the part of the holder of this Note, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9. Survival of Representations and Warranties. All representations and
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warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Note.
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10. Governing Law; Jurisdiction; Waiver of Immunity. THIS NOTE SHALL BE
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GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
To the extent that Obligor 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, Obligor hereby irrevocably
waives such immunity in respect of its obligations under this Note, to the
extent permitted by law.
11. Third Party Beneficiaries. This Note is not intended and shall not be
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construed to create any rights in any Person other than the Obligor and Coaxial
and the Secured Party, and no other Person shall have or may assert any right as
third party beneficiary of any provision hereof; provided, that the Trustee may
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exercise the rights granted to it under the Pledge Agreement.
12. Interpretation. This Note is one of the LLC Mirror Notes referred to
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in the Indenture issued for the purpose of permitting Coaxial to make a loan to
Obligor out of the proceeds of the sale of the Discount Notes while providing an
instrument with provisions allowing Coaxial to satisfy its payment requirements
under the Discount Notes. This Note shall be interpreted and construed in a
manner which is consistent with and which furthers this purpose.
Notwithstanding the provisions of the second introductory paragraph of this
Note, certain provisions of the Indenture are unrelated to the purposes of this
Note (e.g., Articles 7 and 10). Accordingly, such provisions of the Indenture
shall not be incorporated to the extent they are unrelated to any of the
foregoing purposes.
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IN WITNESS WHEREOF, the Obligor has caused this Note to be signed manually
by its duly authorized officer.
COAXIAL DJM LLC
By: /s/ Kim D. Kelly
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Name: Kim D. Kelly
Title: Executive Vice President
ALLONGE TO PROMISSORY NOTE
Reference is hereby made to that certain Mirror Note (the "Note") dated
August 21, 1998 in the original principal amount of $12,570,525 issued by
Coaxial DJM LLC, a Delaware limited liability company (the "Obligor"), and
payable to the order of Coaxial LLC, a Delaware limited liability company
("Coaxial").
FOR VALUE RECEIVED, Coaxial hereby sells, assigns and transfers the Note
unto
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Dated:
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COAXIAL LLC
By: /s/ Sidney R. Knafel
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August 21, 1998
TO: Coaxial DJM LLC
Reference is hereby made to the Note, dated August 21, 1998 (the "Note"),
between you and Coaxial LLC (the "Company") in the original principal amount of
$12,570,525. By Pledge Agreement, dated as of August 21, 1998 (the "Pledge
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Agreement"), the Company has pledged the Note and the proceeds thereof to Bank
of Montreal Trust Company, as trustee (the "Trustee") for the holders of
Discount Notes referred to in the Pledge Agreement, to secure payment and
performance of obligations of the Company to the Trustee and such holders.
You are hereby irrevocably directed, to make any and all payments becoming
due under the Note directly to the Trustee, without set-off or counterclaim, as
provided in the Indenture (as defined in the Note) at the Trustee's office
located at 88 Pine Street, New York, NY 10005.
The instructions contained herein are irrevocable and may not be amended,
revoked or otherwise modified without the prior written consent of the Trustee.
COAXIAL LLC BANK OF MONTREAL TRUST COMPANY
By: /s/ Sidney R. Knafel By: /s/ Amy Roberts
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Name: Sidney R. Knafel Name: Amy Roberts
Title: Chairman Title: Vice President
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Pledge
Agreement described in the foregoing letter and agrees for the benefit of the
Trustee and the holders of Discount Notes to be bound by the terms of the Pledge
Agreement and to comply with the terms of the foregoing letter. To the best
knowledge of the undersigned, no representation or warranty of the Company in
the Pledge Agreement is incomplete or incorrect.
COAXIAL DJM LLC
By: /s/ Kim Kelly
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Name: Kim Kelly
Title: Executive Vice President