EXHIBIT 1.2
HEARST-ARGYLE TELEVISION, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
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1. Introductory. Hearst-Argyle Television, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement referred
to in Section 2(a) (the "Registered Securities"). The Registered Securities
will be issued under an indenture, to be dated on or about November 10, 1997, as
the same may be supplemented from time to time, between the Company and Bank of
Montreal Trust Company, as Trustee (the "Indenture"), in one or more series,
which series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series of
the Registered Securities being determined at the time of sale. Particular
series of the Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-36659) and pre-effective
amendment no. 1, including a prospectus, relating to the Registered
Securities has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective. Such registration statement, as
amended at the time of any Terms Agreement referred to in Section 3, is
hereinafter referred to as the "Registration Statement", and the final
prospectus relating to the Offered Securities included in such Registration
Statement, as supplemented, as contemplated by Section 3 to reflect the
terms of the Offered Securities and the terms of offering thereof, as first
filed with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933 (the "Act"), including all
material incorporated by reference therein, is hereinafter referred to
as the "Prospectus"; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) under
the Act (the "Rule 462 Registration Statement"), then, after such filing,
all references to "Registration Statement" shall also be deemed to include
the Rule 462 Registration Statement. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the Registration Statement
became effective and any prospectus that omitted information deemed to be
part of the prospectus by Rule 430A under the Act ("Rule 430A") or Rule 434
or other information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b), that was used after such
effectiveness and prior to the execution and delivery of the applicable
Terms Agreement. All references herein to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement to
any of the foregoing shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX").
All references herein to financial statements and schedules and other
information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references herein to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be.
(b) The Company meets the requirements for use of Form S-3 under the
Act. On the effective date of the Registration Statement relating to the
Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission under the Act (the "Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the Rules and Regulations, and neither of such documents, as
amended or supplemented, will include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. No stop order
suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the Closing Date (as defined below) or the effective date of any
post-effective amendment to the Registration Statement (including the
filing of the Company's most recent Annual Report on Form 10-K with the
Commission), the Registration Statement, including any amendments and
supplements thereto, and the Prospectus complied and will comply in all
material respects with the requirements of the Act and the Rules and
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives, if any, expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424(b), complied when so filed in all
material respects with the Rules and Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of the Registered Securities will, at
the time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder and, when read
together with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Date did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) The accountants who certified the financial statements and any
supporting schedules thereto included in the Registration Statement and the
Prospectus are independent public accountants as required by the Act and
the Rules and Regulations.
(e) The financial statements of the Company included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, as well as those financial statements, schedules and
notes of any other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or such other
entity, as the case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries, or such other entity, as the
case may be, for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the applicable requirements of the Rules and Regulations with respect to
pro forma financial statements, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
(f) Since the respective dates as of which information is given in the
Prospectus, except as otherwise stated therein, (i) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (ii) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those arising in the ordinary course of business, which would have a
Material Adverse Effect and (iii) except for regular dividends on the
Company's common stock or preferred stock, in amounts per share that are
consistent with past practice or the applicable charter document or
supplement thereto, respectively, and except in connection with the Hearst
Transaction (as defined in the Registration Statement) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(g) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where failure
to so qualify would not result in a Material Adverse Effect.
(h) Each direct and indirect subsidiary of the Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
or be in good standing would not result in a Material Adverse Effect.
Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of each direct
and indirect subsidiary of the Company has been duly authorized and is
validly issued, fully paid and non-assessable and, except as described in
the Prospectus, is owned by the Company, directly or through its
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim, defect or equity. None of the outstanding shares
of capital stock of any direct or indirect subsidiary of the Company was
issued in violation of preemptive or other similar rights of any
securityholder of such subsidiary.
(i) If the Prospectus contains a "Capitalization" section, the
authorized, issued and outstanding shares of capital stock of the Company
is as set forth in the column entitled "Actual" under such section (except
for subsequent issuances thereof, if any, contemplated under this Agreement
or in the Registration Statement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock was issued in violation of preemptive
or other similar rights of any securityholder of the Company.
(j) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been, or will be as of the date of
such Terms Agreement or Delayed Delivery Contract, duly authorized,
executed and delivered by the Company.
(k) The Indenture has been duly authorized by the Company and has been
duly qualified under the Trust Indenture Act. The Offered Securities have
been duly authorized; and when the Offered Securities are delivered and
paid for pursuant to the Terms Agreement on the Closing Date (as defined
below) or pursuant to Delayed Delivery Contracts (as hereinafter defined)
(i) the Indenture will have been duly executed and delivered, (ii) such
Offered Securities will have been duly executed, authenticated, issued and
delivered by the Company and will conform in all material respects to the
description thereof contained in the Prospectus; and (iii) the Indenture
and such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(l) If the Offered Securities are convertible: when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date, such Offered Securities will be convertible into Series A
Common Stock, par value $.01 per share, of the Company (the "Common Stock")
in accordance with the terms of the Indenture; the shares of Common Stock
initially issuable upon conversion of such Offered Securities will have
been duly authorized and reserved for issuance upon such conversion and,
when issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and conform
in all material respects to the description thereof contained in the
Prospectus; and none of such shares of Common Stock was issued in violation
of preemptive rights or similar rights of any stockholder of the Company.
(m) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such violations or defaults that, singly or in the aggregate,
would not result in a Material Adverse Effect. The execution, delivery and
performance of the Terms Agreement (including the provisions of this
Agreement) and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated therein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Offered Securities and the use of
the proceeds from the sale of the Offered Securities as described under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, (i) conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any
of its subsidiaries pursuant to, any Agreements and Instruments, except for
such conflicts, breaches, defaults, events or liens, charges or
encumbrances that, singly or in the aggregate, would not result in a
Material Adverse Effect; (ii) violate the certificate of incorporation or
by-laws of the Company or any of its subsidiaries; (iii) violate or
conflict with any judgment, order or decree of any United States
governmental body, agency or court having jurisdiction over the Company or
any of its subsidiaries, including, without limitation, the Federal
Communications Commission (the "FCC") or with any United States federal or
state law, rule or regulation applicable to the Company, any of its
subsidiaries, or any of their respective properties, including, without
limitation, the Communications Act of 1934, as amended (the "Communications
Act"), and the rules and regulations of
the FCC thereunder, except for such violations or conflicts that, singly or
in the aggregate, would not result in a Material Adverse Effect; or (iv)
result in the termination or revocation of any of the permits, licenses,
approvals, orders, certificates, franchises or authorizations of United
States governmental or regulatory authorities, including those relating to
the Communications Act, owned or held by the Company or any of its
subsidiaries in order to conduct the broadcast operations of the stations
owned or operated by any of them (collectively, the "Licenses") or result
in any other material impairment of the rights of the holder of any such
License, except for such Licenses the failure of which to maintain or
possess by the Company or any of its subsidiaries would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
(n) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(o) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company threatened,
against or affecting the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which would reasonably be expected to
result in a Material Adverse Effect or materially and adversely affect the
consummation of the transactions contemplated under the Terms Agreement
(including the provisions of this Agreement), any Delayed Delivery
Contracts or the performance by the Company of its obligations hereunder
and thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or
of which any of their respective assets, properties or operations is the
subject which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(p) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which
have not been so described and filed as required.
(q) No filing with, or authorization, approval, consent, license,
order registration, qualification or decree of, any United States federal
or state court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by the Company of its obligations under the
Terms Agreement (including the provisions of this Agreement or any Delayed
Delivery Contracts, or in connection with the transactions contemplated
under, except such as have been already obtained or as may be required
under the Exchange Act and the rules and regulations promulgated
thereunder, state securities laws or the by-laws and rules of the NASD.
(r) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(s) The Company and its subsidiaries possess or have made application
for such Licenses issued by and have made all required declarations and
filings with the appropriate United States federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except for such Licenses the failure of which to obtain,
maintain or possess by the Company or any of its subsidiaries would not
have a Material Adverse Effect. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
the Communications Act, and the rules and regulations of the FCC, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Licenses are valid and in
full force and effect, except where the invalidity of such Governmental
Licenses to be in full force and effect would not result in a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation of
modification of any such Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect. The Company has no reason to believe that any
License will not be renewed in the ordinary course.
(t) The Company and its subsidiaries have good and marketable title or
a valid leasehold interest, as the case maybe, to all real property owned
or leased by the Company and its subsidiaries and good title or a valid
leasehold interest, as the case may be, to all other properties owned by
them, in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (i) as otherwise
stated in the Registration Statement or the Prospectus or (ii) those which
would not, singly or in the aggregate, have a Material Adverse Effect.
(u) The Company is not, and upon the issuance and sale of the Offered
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(v) Except as otherwise stated in the Registration Statement and the
Prospectus and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (i) to the knowledge of the Company, neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation thereof
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (ii) to the knowledge of the Company,
the Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements and (iii) to the knowledge of the
Company, there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries.
(w) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder or is exempt therefrom.
(x) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(y) The affiliation agreements between each of the broadcast
television stations of the Company and its subsidiaries, as applicable, and
the ABC and NBC television networks, as applicable, have been duly
authorized, executed and delivered by the Company and its subsidiaries, as
applicable.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications (the "Terms Agreement") at
the time the Company determines to sell the Offered Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement, except
as otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, maturity, any redemption provisions and any
sinking fund requirements and whether any of the Offered Securities may be sold
to institutional investors pursuant to Delayed Delivery Contracts. The Terms
Agreement will also specify the time and date of delivery and payment (such time
and date, or such other time not later than seven full business days thereafter
as the Underwriter first named in the Terms Agreement (the "Lead Underwriter")
and the Company agree as the time for payment and delivery (being herein and in
the Terms Agreement referred to as the "Closing Date"), the place of delivery
and payment and any details of the terms of offering that should be reflected in
the prospectus supplement relating to the offering of the Offered Securities.
For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later
than the otherwise applicable settlement date) shall be the date for payment of
funds and delivery of securities for all the Offered Securities sold pursuant to
the offering, other than Contract Securities (as defined below) for which
payment of funds and delivery of securities shall be as hereinafter provided.
The obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee agreed to by the Company and set forth in such Terms
Agreement in respect of the principal amount of Offered Securities to be sold
pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
of Offered Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the principal amount of
Offered Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter determines that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Lead Underwriter not later than the business day prior
to the Closing Date of the principal amount of Contract Securities.
If the Terms Agreement specifies "Book-Entry Only" settlement or otherwise
states that the provisions of this paragraph shall apply, the Company will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company (the "DTC") and registered in the name of Cede & Co., as nominee for
DTC. Interests in any permanent global securities will be held only in book-
entry form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
(if the Terms Agreement specifies that the Offered Securities will not trade in
DTC's Same Day Funds Settlement System) by certified or official bank check or
checks in New York Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's Same Day Funds
Settlement System) in Federal (same day) funds by official check or checks or
wire transfer to an account in New York previously designated to the Lead
Underwriter by the Company at a bank acceptable to the Lead Underwriter, in each
case drawn to the order of ___________ at the place of payment specified in the
Terms Agreement on the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Offered
Securities.
4. Certain Covenants of the Company. The Company covenants with the
several Underwriters that, in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the second business
day following the execution and delivery of the Terms Agreement, and the
Company, if and as applicable, will notify the Lead Underwriter promptly,
and confirm the notice in writing, of (i) the effectiveness of any post-
effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of any comments
from the Commission relating to the Registration Statement or the
Prospectus, and (iii) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
or for additional information.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus, will afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement and will not file any
such document to which the Lead Underwriter or counsel for the Underwriters
shall reasonably object, except to the extent that such filing is necessary
in the opinion of counsel
to the Company in order to comply with the requirements of the Act and the
Rules and Regulations; and the Company will also advise the Lead
Underwriter promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will use
reasonable efforts to prevent the issuance of any such stop order and to
obtain as soon as practicable its lifting, if issued.
(c) The Company will comply with the Act, the Rules and Regulations
and the Exchange Act and the rules and regulations thereunder so as to
permit the completion of the distribution of the Offered Securities as
contemplated by the applicable Terms Agreement (including the provisions of
this Agreement) and in the Registration Statement and the Prospectus. If,
at any time when a Prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which it is
necessary in the opinion of counsel to the Company to amend or supplement
the Prospectus in order that the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary, in the opinion
of counsel to the Company, at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Lead Underwriter of such
event and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
(d) The Company will timely file all such reports pursuant to the
Exchange Act and the rules and regulations promulgated thereunder as are
necessary in order to make generally available to its securityholders an
earnings statement as soon as practicable (but not later than 90 days after
the close of the Company's fiscal year, in a form and manner complying with
Rule 158 of the Rules and Regulations) in order to satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement as originally filed (including all exhibits thereto
any related preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Lead Underwriter reasonably requests during the period when the Prospectus
is required to be delivered under the Act, and the Company hereby consents
to the use of such copies for purposes permitted under the Act. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents, and copies of these documents furnished to
the Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(f) The Company will use its best efforts to qualify the Offered
Securities for sale under the laws of such jurisdictions as the Lead
Underwriter reasonably designates and will continue such qualifications in
effect for a period of not less than one year from the date of the
applicable Terms Agreement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject or make any change in its certificate of
incorporation, by-laws or other governing documents. In each jurisdiction
in which the Offered Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for such period in
order to effect the distribution of the Offered Securities.
(g) During the period until three years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as the Lead Underwriter may
reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of the this Agreement, any Terms
Agreement, and any Agreement among Underwriters, and such other agreements
as may be reasonably required in connection with the offering, purchase,
sale, issuance or delivery of the Offered Securities, (iii) the
preparation, issuance and delivery of the Offered Securities and
certificates for the Offered Securities to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Offered Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), (v) the
qualification of the Offered Securities under state securities laws of such
jurisdictions as the Lead Underwriter may designate, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation, printing
and delivery of any Blue Sky Survey and any amendment thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus,
and the Prospectus and any amendments or supplements thereto, (vii) any
fees charged by investment rating agencies for the rating of the Offered
Securities and, if applicable, the fees and expenses incurred with respect
to the listing of the Common Stock, if the Offered Securities are
convertible into Common Stock, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel of the Underwriters in
connection with, the review, if any, by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Offered Securities and any related shares of Common Stock, if the Offered
Securities are convertible into Common Stock, and (ix) the fees and
expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2(l) of Schedule E of the
bylaws of the NASD), if applicable. The Underwriters shall pay any transfer
taxes on the Offered Securities which they may sell, and the expenses of
advertising any offering of the securities made by the Underwriters.
(i) The Company will use the net proceeds received by it from the sale
of the Underwritten Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(j) The Company, during the period when the Prospectus is required to
be delivered under the Act or the Exchange Act, will file all documents
required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by such Act and the rules and regulations
promulgated thereunder.
(k) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Lead Underwriter for a
period beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date specified under "Blackout" in the
Terms Agreement.
(l) If the Offered Securities are convertible into Common Stock, the
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its Common
Stock or securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior written
consent of the Lead Underwriter for a period beginning at the time of
execution of the Terms Agreement and ending the number of days after the
Closing Date specified under "Blackout" in the Terms Agreement, except
grants of employee stock options pursuant to the terms of a plan in effect
on the date of the Terms Agreement, issuances of Common Stock
pursuant to the exercise of such options or the exercise of any other
employee stock options outstanding on the date of the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the Act, and no stop
order suspending the effectiveness of the Registration Statement or of any
part thereof shall have been issued under the Act and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company
or any Underwriter, shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel for the
Underwriters. A prospectus containing information relating to the
description of Offered Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance
with Rule 424(b) (or any post-effective amendment providing such
information shall have been filed and declared effective in accordance with
Rule 430A of the Act).
(b) At the Closing Date, there shall not have occurred (i) any change,
or any development or event involving a prospective change, in the
condition or the earnings, business affairs, properties or results of
operations of the Company or its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business which, in the
judgment of a majority in interest of the Underwriters including any
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the Nasdaq National Market ("Nasdaq"), or any setting of
minimum prices or maximum ranges for trading on Nasdaq, or any suspension
of trading of any securities of the Company on Nasdaq or in the over-the-
counter market; (iv) any banking moratorium declared by U.S. Federal or New
York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of
a majority in interest of the Underwriters including any Representatives,
the effect of any such outbreak, escalation, declaration, calamity or
emergency on the financial markets in the United States makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(c) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxx & Xxxxx, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus;
(ii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, and has corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus. Except as otherwise
stated in the Registration Statement and the Prospectus, (by
incorporation or otherwise) all of the issued and outstanding shares
of capital stock of each subsidiary have been duly authorized and are
validly issued, fully paid and non-assessable and (except for
directors qualifying shares) are owned of record by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity to the
knowledge of such counsel. There are no outstanding preemptive or
other similar rights of any securityholder of any subsidiary of the
Company with respect to the outstanding capital stock of such
subsidiary arising under the General Corporation Law of the State of
Delaware, the Certificate of Incorporation or By-Laws of the Company,
or, to such counsel's knowledge, any material agreement to which the
Company is a party;
(iii) The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and delivered by the
Company and is a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, except
as enforceability may be limited by bankruptcy, reorganization,
moratorium, insolvency or similar laws affecting creditors' rights
generally, including without limitation, applicable fraudulent
transfer laws, and general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether the enforceability of such rights
or the availability of such remedies is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Offered
Securities denominated other than in U.S. dollars
(or a foreign or composite currency judgment in respect of such claim)
be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments outside
the United States;
(iv) The Offered Securities have been duly authorized by the
Company and, when executed, authenticated, issued and delivered in the
manner provided in the Indenture (and in the case of any Contract
Securities, sold pursuant to Delayed Delivery Contracts) against
payment of the consideration therefor specified in such Terms
Agreement, will be entitled to the benefits of the Indenture, and will
be valid and legally binding obligations of the Company, enforceable
in accordance with their terms, except as enforceability may be
limited by bankruptcy, reorganization, moratorium, insolvency or
similar laws affecting creditors' rights generally, including without
limitation, applicable fraudulent transfer laws, and general
principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether the enforceability of such rights or the availability of
such remedies is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Offered Securities
denominated other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. The
Offered Securities when so issued and sold will confirm in all
material respects as to legal matters to the description thereof
contained in the Prospectus, as may be supplemented or amended.
(v) If the Offered Securities are convertible, the Offered
Securities other than any Contract Securities are, and any Contract
Securities, when executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will be convertible into shares of Common Stock of the
Company in accordance with the terms of the Indenture; the shares of
Common Stock initially issuable upon conversion of the Offered
Securities will have been duly authorized and reserved for issuance
upon such conversion and, when issued and delivered upon such
conversion against payment of the consideration therefor specified in
the Terms Agreement and in the Indenture, will be validly issued,
fully paid and nonassessable;
(vi) To such counsel's knowledge, except as disclosed in the
Prospectus, there are no contracts or agreements between the Company
and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company
to include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(vii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any United States federal or
state court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of the Offered
Securities by the Company, except such of the foregoing as may be
required in connection with the issuance of sale by the Company of the
Offered Securities under the Act, the Securities Exchange Act of 1934,
as amended, the Trust Indenture Act, the Rule and Regulations, the By-
Laws and rules of the NASD, or any state securities laws or such as
have been received on or prior to the date hereof;
(viii) The execution, delivery and performance of the Indenture,
any Delayed Delivery Contracts, the Terms Agreement (including the
provisions of this Agreement), and the issuance and sale of the
Offered Securities, will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any United
States federal or state statute, rule, regulation or order known to
such counsel of any governmental agency or body (other than foreign or
state securities laws as to which such counsel expresses no view) or
any United States federal or state court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties,
of which such counsel is aware, or any agreement or instrument to
which the Company or any such subsidiary is a party filed or
incorporated by reference as an exhibit to the Registration Statement
except for such breaches, violations or defaults, which individually
or in the aggregate, would not have a Material Adverse Effect, or the
charter or by-laws of the Company or any such subsidiary, and the
Company has full corporate power and authority to authorize, issue and
sell the Offered Securities to be sold by it as contemplated by the
Terms Agreement (including the provisions of this Agreement). Such
counsel expresses no opinion in this Paragraph (viii) with respect to
(A) any covenant, restriction or provision of any agreement or
instrument regarding financial covenants, ratios or tests or any
aspect of the financial condition or results of operations of the
Company or its subsidiaries, or (B) the By-Laws or rules of the NASD
or any state securities laws;
(ix) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Act specified in such opinion on
the date specified therein, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act;
(x) The Registration Statement relating to the Registered
Securities, as of its effective date, the Prospectus, as of the date
of the Terms Agreement, and any amendment or supplement thereto, as of
its date (in each case excluding (i) the documents incorporated by
reference therein, (ii) the operating statistics, financial
statements, including the notes thereto, and other financial and
statistical data included or incorporated by reference therein or
omitted therefrom and (iii) the Form T-1, in each case as to which
such counsel expresses no view) complied as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder;
(xi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(xii) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware, and that such counsel is not admitted in the
State of Delaware. In rendering such opinion, such counsel may also rely
on certificates and written statements of officers, directors,
stockholders, employees and accountants of the Company and public
officials. Such counsel shall also state that nothing has come to the
attention of such counsel that leads it to believe that the Registration
Statement, at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto, at the date
of the Terms Agreement or the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel expresses no belief with respect to the
financial statements, financial schedules and financial information and
operating data, and other financial data included or incorporated by
reference in the Registration Statement or the Prospectus). The foregoing
statement may be qualified by a statement to the effect that such counsel
does not pass upon or otherwise assume any responsibility for the accuracy,
completeness, or fairness of the statements contained in the Registration
Statement or the Prospectus.
(d) The Representatives shall have received an opinion, dated as of
the Closing Date, of Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, special
FCC
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contract will not result in a violation of the Communications
Act or the any order, rule or regulation of the FCC;
(ii) No consent, approval, authorization or order of, or filing
with, any governmental body or any court is required under the
Communications Act or the rules and regulations of the FCC is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) or any Delayed
Delivery Contracts in connection with the issuance or sale of the
Offered Securities by the Company, except such as have been obtained
and made under the Communications Act or the rules and regulations of
the FCC;
(iii) The FCC has duly and validly taken all necessary action
(the "FCC Consent") to approve the transfer and assignment to the
Company of all material Licenses issued by the FCC with respect to the
Hearst Broadcast Group and the FCC Consent has not been reversed,
stayed, enjoined, set aside annulled or suspended, no requests have
been filed for administrative or judicial review, reconsideration,
appeal or stay of the FCC Consent, and the time period for the filing
of any such requests and for the FCC to set aside the FCC Consent on
its own motion has expired;
(iv) The Company and its subsidiaries are the holders of the
Licenses issued by the FCC listed in an attachment to such opinion
(the "FCC Licenses"), all of which are validly issued by the FCC and
in full force and effect, with no material restrictions or
qualifications other than as described in the Prospectus and to the
best knowledge of such counsel based solely on the description of the
business and properties of the Company and its subsidiaries in the
Prospectus and given by the Company to such counsel, such FCC Licenses
constitute all of the FCC Licenses necessary for the Company and its
subsidiaries to own their properties and to conduct their businesses
in the manner and to the full extent now operated or proposed to be
operated as described in the Prospectus; and
(v) To the best knowledge of such counsel, no event has occurred
which permits, or with notice or lapse of time or both would permit,
the revocation or non-renewal of any of the FCC Licenses, assuming the
filing of timely license renewal applications and the timely payment
of all applicable filing and regulatory fees to the FCC, or which
might result in any other material impairment of the rights of the
Company and its subsidiaries in the FCC Licenses.
(e) The Representatives shall have received from Dow, Xxxxxx &
Xxxxxxxxx, PLLC counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities, certain matters pertaining to the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters. Such counsel may also state that, insofar as much
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(f) At Closing Date, the Representatives shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial officer or chief accounting officer of the Company, dated
as of Closing Date, to the effect that, to the best of their knowledge, (i)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the representations and warranties in
Section 2 are true and correct in all material respects with the same force
and effect as though expressly made at and as of the Closing Date, (iii)
the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied under the
Terms Agreement (including the provisions of this Agreement) at or prior to
the Closing Date, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(g) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Ernst & Young LLP confirming that they are independent public
auditors within the meaning of the Act and the applicable published Rules
and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules
examined by them and included in the Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company,
inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations or any material modifications
should be made to such unaudited financial statements for them to
be in conformity with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net sales, net
operating income, net income and net income per share amounts or
other amounts constituting such "capsule" information and
described in such letter do not agree with the corresponding
amounts set forth in the unaudited consolidated financial
statements or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five business days prior to the date of the Terms Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
total revenues, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated net sales, in the total (or if
the Offered Securities are convertible into Common Stock per
share amounts) of consolidated income before extraordinary items
or net income in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur;
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus, except for specified dollar amounts and
other financial information for the broadcast television group (the
"Hearst Broadcast Group") of the Hearst Corporation, a Delaware
corporation ("Hearst") (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference in the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(h) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Deloitte & Touche LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any summary of
earnings examined by them and included in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements examined by them and included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Hearst Broadcast Group or the Company, inquiries of officials
of Hearst or the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements and any summary of
earnings included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements
of the
Act and the related published Rules and Regulations or any
material modifications should be made to such unaudited financial
statements and summary of earnings for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited pro forma financial information is
contained in the Prospectus, the unaudited pro forma revenues and
broadcast cash flow were not determined on a basis substantially
consistent with that of the corresponding amounts in the
unaudited pro forma statements of operations;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there
was any decrease in consolidated net current assets, as compared
with amounts shown on the unaudited pro forma balance sheet
included in the Prospectus; or
(D) for the period from the closing date of the latest
statement of operations included in the Prospectus to the closing
date of the latest available statement of operations read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest statement of
operations included in the Prospectus, in consolidated total
revenues;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred;
(iv) they have read the pro forma financial statements of the
Company for the six months ended June 30, 1997 and 1996 contained in
the Prospectus, made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and whether
the pro forma financial statements comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X, proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the pro forma
financial statements, and on the basis of such procedures and other
inquiries specified in such letter, nothing came to their attention
that caused them to believe that the pro forma financial statements
included in the Registration Statement do not comply as to form in all
material respects with the applicable
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of the pro forma financial statements; and
(v) they have compared the disclosure under the caption "Ratio
of Earnings to Fixed Charges" for the Hearst Broadcast Group and for
the Company for the six months ended June 30, 1997 in the Registration
Statement with results obtained from inquiries of officials of Hearst
and the Company, as the case may be, who have responsibility for
financial and accounting matters, a reading of the general accounting
records of the Hearst Broadcast Group or the Company and other
procedures specified in such letter and have found such disclosure to
be in agreement with such results, except as otherwise specified in
such letter, and have proved the arithmetic accuracy of such
disclosure; and
(vi) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
regarding the Hearst Broadcast Group and, subsequent to August 29,
1997, the Company contained in the Prospectus (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Hearst Broadcast Group or the Company subject to the internal controls
of Hearst's or the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated by
reference in the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(i) The Representatives shall have received a letter, dated the
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (g) of this Section, except that the specified date referred to
in such subsection will be a date not more than three business days prior
to the Closing Date for the purposes of this subsection.
(j) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (h) of this Section, except that the specified date referred to
in such subsection will be a date not more than five business days prior to
the Closing Date for the purposes of this subsection.
(k) If the Registration Statement or an offering of Offered Securities
has been filed with the NASD for review, the NASD shall not have raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(l) At Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Offered
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including information deemed to be a part
thereof pursuant to Rule 430A, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; (ii)
against any and all loss liability, claim, damage and expense whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever for
which indemnification is provided under
this subsection (a); provided that (subject to Section 6(c) below) any such
settlement is effected with the written consent of the Company; and (iii)
against any and all expenses whatsoever, as incurred, including the fees
and disbursements of counsel chosen by the Lead Underwriter, reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever for which indemnification
is provided under this subsection (a), to the extent that any such expense
is not paid under (i) or (ii) above; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense
to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including information deemed to be a part thereof
pursuant to Rule 430A, if applicable, or any preliminary prospectus or the
Prospectus (or an amendment or supplement thereto), it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement; provided,
further, that the Company will not be liable to the Underwriters or any
person controlling such Underwriters with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made
in any preliminary prospectus to the extent that the Company shall sustain
the burden of proving that any such loss, liability, claim, damage or
expense resulted from the fact that the Underwriter sold securities to a
person to whom such Underwriter failed to send or give, at or prior to the
written confirmation of the sale of such Securities, a copy of the
Prospectus (as amended or supplemented) if the Company has previously
furnished copies thereof to the Underwriters (as and to the extent required
by law in order to allow for distribution of the Prospectus in a timely
manner) and complied with their obligations under Sections 4(c) and 4(d)
hereof and the loss, liability, claim, damage or expense of the
Underwriters resulted from an untrue statement or omission or alleged
untrue statement or omission of a material fact contained in or omitted
from such preliminary prospectus (as amended or supplemented) which was
corrected in the Prospectus (as amended or supplemented).
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company against any losses, liabilities, claims and
damages incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including information deemed to be
part thereof pursuant to Rule 430A, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in the Terms Agreement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by the Lead Underwriter, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action with
counsel chosen by it and reasonably approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object
to such assumption on the ground that there may be legal defenses available
to them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification
or contribution could be sought under this Section (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investment, proceeding or claim.
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 120
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 90 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(d) If the indemnification provided for in subsection (a) or (b) above
is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, from the offering of
the Offered Securities pursuant to the Terms Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and of the Underwriters, on the other hand, in connection
with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Offered Securities pursuant to the Terms Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference, to among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provision of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the rights of the Underwriters
under this Section shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the
Act or the Exchange Act; and the obligations of the Underwriters and the
rights of the Company under this Section shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act or the Exchange
Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, the Lead Underwriter may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
and arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Securities set
forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. Except as provided below, if the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of the
Terms Agreement pursuant to Section 7 or the occurrence of any event specified
in Section 5, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxx.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
Nothing expressed or mentioned in this Underwriting Agreement or such Terms
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Section 6 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or such Terms
Agreement or any provision herein or therein contained. This Agreement and such
Terms Agreement and all conditions and provision hereof and thereof are intended
to be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Offered Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
11. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to the Terms Agreement (including the
provisions of this Agreement) or the transactions contemplated thereby.
12. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
13. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any
action under such Terms Agreement (including the provisions of this Agreement)
taken by the Representatives jointly or by the Lead Underwriter will be binding
upon all the Underwriters.
14. Counterparts. This Agreement and any Terms Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same Agreement.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Title: Director
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Title: Senior Vice President/Corporate
Development, General Counsel and
Secretary
