Exhibit 4.4
PARAMOUNT PARENT GUARANTEE
GUARANTEE, dated as of July 1, 1994, made by Paramount
Communications, Inc., a Delaware corporation (the "Guarantor"), in
favor of the banks (the "Banks") parties, from time to time, to the
Parent Facility (as defined below), The Bank of New York, Citibank,
N.A., Morgan Guaranty Trust Company of New York, and Bank of America
NT&SA, as managing agents (the "Managing Agents") for the Banks, the
Bank of New York, as documentation agent (the "Documentation Agent")
for the Banks, Citibank, N.A., as administrative agent (the
"Administrative Agent") for the Banks, JP Morgan Inc. as syndication
agent (the "Syndication Agent") for the Banks, the banks identified as
agents on the signature pages of the Parent Facility, as agents (the
"Agents") for the Banks, and the banks identified as co-agents on the
signature pages of the Parent Facility, as co-agents (the "Co-Agents")
for the Banks.
W I T N E S S E T H:
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WHEREAS, the Documentation Agent, the Administrative Agent,
the Syndication Agent (collectively the "Facility Agents"), the
Managing Agents, the Co-Agents, the Agents and the Banks have entered
into a credit agreement dated as of July 1, 1994 (said agreement, as
it may hereafter be amended, supplemented or otherwise modified from
time to time, being the "Parent Facility", and the terms defined
therein and not otherwise defined herein being used herein as therein
defined) with Viacom Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Borrower"), or any successor
thereto;
WHEREAS, the Banks, the Facility Agents, the Managing
Agents, the Agents and the Co-Agents have entered into the Subsidiary
Facility simultaneously with the Parent Facility pursuant to which the
Banks will provide senior debt financing to certain subsidiaries of
the Borrower; and
WHEREAS, it is a condition precedent to the Initial Funding
Date under the Parent Facility that the Guarantor shall have executed
and delivered this Guarantee;
NOW, THEREFORE, in consideration of the premises and in
order to induce the Banks to make the loans under the Parent Facility,
the Guarantor hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor hereby unconditionally
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and irrevocably guarantees the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of
the Borrower now or hereafter existing under the Parent Facility,
whether for borrowed money, interest, fees or any other amounts due
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thereunder or otherwise (the "Obligations") and any and all expenses
(including counsel fees and expenses) reasonably incurred by any Bank,
Facility Agent, Managing Agent, Agent or Co-Agent in enforcing any
rights under this Guarantee.
SECTION 2. Guarantee Absolute. The Guarantor guarantees
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that the Obligations will be paid strictly in accordance with the
terms of the Parent Facility, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Bank, Facility Agent, Managing Agent,
Agent or Co-Agent with respect thereto. The liability of the
Guarantor under this Guarantee shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the
Parent Facility or any other agreement or instrument
relating thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any
consent to departure from the Parent Facility;
(iii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guaranty, for all or any
of the Obligations; or
(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Borrower, or a guarantor.
SECTION 3. Waiver. The Guarantor hereby waives all notices
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with respect to any of the Obligations and this Guarantee and any
requirement that any Bank, Facility Agent, Managing Agent, Agent or
Co-Agent protect, secure, perfect or insure any security interests or
lien on any property subject thereto or exhaust any right or take any
action against the Borrower, or any other person or entity or any
collateral.
SECTION 4. Subrogation. (a) The Guarantor shall not
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exercise any rights which it may have acquired by way of subrogation
under this Guarantee, by any payment made hereunder or otherwise nor
shall the Guarantor seek any reimbursement from Borrower in respect of
payments made by the Guarantor hereunder, unless and until all of the
Obligations shall have been paid to the Banks and discharged, in full,
and if any payment shall be made to the Guarantor on account of such
subrogation or reimbursement rights at any time when the Obligations
shall not have been paid and discharged, in full, each and every
amount so paid shall forthwith be paid to the Banks to be credited and
applied against the Obligations, whether matured or unmatured.
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(b) If, pursuant to applicable law, the Guarantor, by
payment or otherwise, becomes subrogated to all or any of the rights
of the Banks under any of the Loan Documents, the rights of the Banks
to which the Guarantor shall be subrogated shall be accepted by the
Guarantor "as is" and without any representation or warranty of any
kind by the Banks, express or implied, with respect to the legality,
value, validity or enforceability of any of such rights, or the
existence, availability, value, merchantability or fitness for any
particular purpose of any collateral and shall be without recourse to
the Banks.
SECTION 5. Representations and Warranties. The Guarantor
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hereby represents and warrants as follows:
(a) It is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the
Guarantor of this Guarantee are within the Guarantor's corporate
powers, have been duly authorized by all necessary corporate action,
do not contravene the Guarantor's charter or by-laws, any law or any
contractual restriction binding on or affecting and material to the
Guarantor, and do not result in or require the creation of any Lien
upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Guarantor of this Guarantee.
(d) This Guarantee is a legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with
its terms, except where such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
limiting creditor's rights generally or equitable principles relating
to enforceability.
(e) There is no pending or threatened action or proceeding
affecting the Guarantor before any court, governmental agency or
arbitrator, in which, individually or in the aggregate, there is a
reasonable probability of an adverse decision which could have a
Material Adverse Effect or result in a Material Credit Agreement
Change.
SECTION 6. Addresses for Notices. All notices and other
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communications provided for hereunder shall be in writing (including
telegraphic or telecopy communication) and mailed, telegraphed,
telecopied or delivered, if to the Guarantor, addressed to it at c/o
Viacom Inc., 1515 Broadway, New York, New York 10036, Attention:
Treasurer, if to any Bank, Facility Agent, Managing Agent, Agent or
Co-Agent, addressed to it at the address of such Bank, Facility Agent,
Managing Agent, Agent or Co-Agent (as the case may be) specified in
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the Parent Facility, or as to each party at such other address as
shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All
such notices and other communications shall, when mailed or
telegraphed, respectively, be effective when deposited in the mails or
delivered to the telegraph company, respectively, addressed as
aforesaid, and shall, when delivered or telecopied, be effective when
received.
SECTION 7. No Waiver; Remedies. No failure on the part of
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any Bank, Facility Agent, Managing Agent, Agent or Co-Agent to
exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8. Right of Set-off. Upon the occurrence and
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during the continuance of any Event of Default (as defined in the
Parent Facility) and, except in the case of one of the events referred
in clause (f) of Section 11.1 of the Parent Facility, the making of
the request or the granting of the consent specified by Section 11.1
of the Parent Facility to authorize the Administrative Agent to
declare all amounts under the Parent Facility due and payable pursuant
to the provisions of said Section 11.1, each Bank is hereby authorized
at any time and from time to time, to the fullest extent permitted by
law, to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or
the account of the Guarantor against any and all of the obligations of
the Guarantor now or hereafter existing under this Guarantee,
irrespective of whether or not such Bank shall have made any demand
under this Guarantee and although such obligations may be contingent
and unmatured. Each Bank agrees promptly to notify the Guarantor
after any such set-off and application made by such Bank; provided,
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however, that the failure to give such notice shall not affect the
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validity of such set-off and application. The rights of each Bank
under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such
Bank may have.
SECTION 9. Continuing Guarantee; Transfer of Interest.
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This Guarantee is a continuing guaranty and shall (i) remain in full
force and effect until indefeasible payment in full of the Obligations
and all other amounts payable under this Guarantee, (ii) be binding
upon the Guarantor, its successors and assigns, and (iii) inure to the
benefit of and be enforceable by any Bank, Facility Agent, Managing
Agent, Agent or Co-Agent, and their respective successors, trans-
ferees, and assigns. Without limiting the generality of the foregoing
clause (iii), any Bank may assign or otherwise transfer all or any
part of its rights and obligations under the Parent Facility in
accordance therewith, and such other person or entity shall thereupon
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become vested with all the rights in respect thereof granted to such
Bank herein or otherwise, subject, however, to the provisions of
Article XIII of the Parent Facility.
SECTION 10. Reinstatement. This Guarantee shall remain in
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full force and effect and continue to be effective should any petition
be filed by or against any Loan Party (as defined in the Parent
Facility) for liquidation or reorganization, should any Loan Party
become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant
part of any Loan Party's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of this
Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored, or
returned, the Obligations shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.
SECTION 11. Limitation of Obligation. The liability of the
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Guarantor under this Guarantee shall not exceed the greater of (i) 95%
of the Adjusted Net Assets (as defined below) of the Guarantor on the
date of delivery hereof and (ii) 95% of the Adjusted Net Assets (as
defined below) of the Guarantor on the date of any payment hereunder;
provided, that nothing in this Section 11 shall be construed to limit
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the liability of the Guarantor under any other Loan Document to which
it is a party. "Adjusted Net Assets" of any Guarantor at any date
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means the lesser of (x) the amount by which the fair value of the
property of such Guarantor (including, without limitation, rights of
subrogation, contribution, and similar rights) exceeds the total
amount of liabilities, including, without limitation, contingent
liabilities, but excluding liabilities under this Guarantee, of the
Guarantor at such date and (y) the amount by which the present fair
salable value of the assets of the Guarantor (including, without
limitation, rights of subrogation, contribution, and similar rights)
at such date exceeds the amount that will be required to pay the
probable liability of the Guarantor on its debts, excluding debt in
respect of this Guarantee, as they become absolute and matured.
SECTION 12. GOVERNING LAW. THIS GUARANTEE SHALL BE
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GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO THE PROVISIONS THEREOF RELATING TO
CONFLICT OF LAWS.
SECTION 13. WAIVER OF JURY TRIAL. THE GUARANTOR WAIVES ALL
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RIGHT TO TRIAL BY JURY IN ANY ACTION OR
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PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES HEREUNDER,
UNDER THE PARENT FACILITY OR UNDER THE OTHER LOAN DOCUMENTS RELATIVE
TO EACH OF THE FOREGOING.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
PARAMOUNT COMMUNICATIONS INC.
By:__________________________
Name:
Title:
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