Exhibit 4.6
PARAMOUNT AFFILIATE 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 Subsidiary
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 Subsidiary Facility,
as agents (the "Agents") for the Banks, and the banks identified as co-agents
on the signature pages of the Subsidiary 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 "Subsidiary
Facility", and the terms defined therein and not otherwise defined herein
being used herein as therein defined) with Viacom International Inc., Viacom
Cablevision of Dayton, Inc., WNYT Inc., WMZQ Inc., and WVIT Inc., each a
Delaware corporation (the "Subsidiary Borrowers");
WHEREAS, the Banks, the Facility Agents, the Managing Agents, the
Agents and the Co-Agents have entered into the Parent Facility simultaneously
with the Subsidiary Facility pursuant to which the Banks will provide senior
debt financing to Viacom; and
WHEREAS, it is a condition precedent to the occurrence of the
Funding Date under the Subsidiary 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 Subsidiary Loans under the Subsidiary Facility, the
Guarantor hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor hereby unconditionally and
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irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each of the
Subsidiary Borrowers now or hereafter existing under the Subsidiary Facility,
whether for borrowed money, interest, fees or any other amounts due
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.
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SECTION 2. Guarantee Absolute. The Guarantor guarantees that the
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Obligations will be paid strictly in accordance with the terms of the
Subsidiary 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 Subsidiary
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 Sub-
sidiary 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 Subsidiary Borrowers,
or a guarantor.
SECTION 3. Waiver. The Guarantor hereby waives all notices with
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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 Subsidiary
Borrowers, or any other person or entity or any collateral.
SECTION 4. Subrogation. (a) The Guarantor shall not exercise any
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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.
(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
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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 hereby
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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 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 the Subsidiary 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.
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SECTION 7. No Waiver; Remedies. No failure on the part of any
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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 during the
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continuance of any Event of Default (as defined in the Subsidiary Facility)
and, except in the case of one of the events referred in clause (f) of
Section 8.1 of the Subsidiary Facility, the making of the request or the
granting of the consent specified by Section 8.1 of the Subsidiary Facility
to authorize the Administrative Agent to declare all amounts under the
Subsidiary Facility due and payable pursuant to the provisions of said
Section 8.1, 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, however, that the failure to give
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such notice shall not affect the 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. This
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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, transferees, 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 Subsidiary
Facility in accordance therewith, and such other person or entity shall
thereupon become vested with all the rights in respect thereof granted to
such Bank herein or otherwise, subject, however, to the provisions of Article
X of the Subsidiary Facility.
SECTION 10. Reinstatement. This Guarantee shall remain in full
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force and effect and continue to be effective should any petition be filed by
or against any Loan Party (as defined in the Subsidiary 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
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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 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
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this Section 11 shall be construed to limit the liability of the Guarantor
under any other Loan Document to which it is a party. "Adjusted Net Assets"
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of any Guarantor at any date 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 GOVERNED BY,
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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 RIGHT
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TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
OR REMEDIES HEREUNDER, UNDER THE SUBSIDIARY FACILITY OR UNDER THE OTHER
CREDIT 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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