<PAGE>
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
NOVEMBER 12, 1997
-------------------
Date of report (Date of earliest event reported)
HEARST-ARGYLE TELEVISION, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 0-2700 74-2717523
-------- ------ ----------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification Number)
888 SEVENTH AVENUE
NEW YORK, NEW YORK 10106
--------------------------
(Address of Principal Executive Offices)(Zip Code)
(212) 649-2300
--------------
Registrant's telephone number, including area code
<PAGE>
ITEM 5. OTHER EVENTS.
------------
On November 12, 1997, Hearst-Argyle Television, Inc. (the "Registrant")
completed an underwritten public offering under its existing shelf registration
statement (File No. 333-36659) of 4,000,000 shares of its Series A Common Stock,
par value $.01 per share (the "Equity Offering"). Reference is made to the
press release, dated November 6, 1997, annexed hereto as Exhibit 20.1, for
further information regarding the Equity Offering. Net proceeds from the Equity
Offering will be used to repay outstanding indebtedness of the Company.
On November 13, 1997, the Registrant completed an underwritten offering
under its existing shelf registration statement (File No. 333-36659) of
$125,000,000 aggregate principal amount of 7% Senior Notes Due 2007 and
$175,000,000 aggregate principal amount of 7-1/2% Debentures Due 2027
(collectively, the "Debt Offering"). Reference is made to the press release,
dated November 7, 1997, annexed hereto as Exhibit 20.2, for further information
regarding the Debt Offering. Net proceeds from the Debt Offering will be used
to repay outstanding indebtedness of the Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
---------------------------------
(c) Exhibits.
--------
Exhibit No. Description of Document
----------- -----------------------
1.1 Purchase Agreement, dated as of November 5, 1997, among the
Registrant and the several Underwriters named therein (equity
securities).
1.2 Underwriting Agreement, dated as of November 7, 1997, among
the Registrant and the several Underwriters named therein (debt
securities).
1.3 International Purchase Agreement, dated as of November 5,
1997, among the Registrant and the several Underwriters named
therein (equity securities).
1.4 Terms Agreement, dated as of November 5, 1997, among the
Registrant and the several Underwriters named therein,
including the Purchase Agreement incorporated therein by
reference (equity securities).
1.5 Terms Agreement, dated as of November 7, 1997, among the
Registrant and the several Underwriters named therein,
including the Underwriting Agreement incorporated therein by
reference (debt securities).
4.1 Indenture, dated as of November 13, 1997, between the
Registrant and Bank of Montreal Trust Company, as trustee.
2
<PAGE>
4.2 First Supplemental Indenture, dated as of November 13, 1997,
between the Registrant and Bank of Montreal Trust Company, as
trustee.
4.3 Global Note representing $125,000,000 of 7% Senior Notes
Due November 15, 2007.
4.4 Global Note representing $175,000,000 of 7 1/2% Debentures
Due November 15, 2027.
5.1 Opinion of Rogers & Wells.
20.1 Press Release, dated November 6, 1997, announcing the Equity
Offering.
20.2 Press Release, dated November 7, 1997, announcing the Debt
Offering.
23.1 Consent of Rogers & Wells (included as part of Exhibit 5.1).
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
HEARST-ARGYLE TELEVISION, INC.
Date: November 13, 1997 By: /s/ Dean H. Blythe
-------------------------------------------
Dean H. Blythe
Senior Vice President-Corporate Development
Secretary and General Counsel
4
<PAGE>
EXHIBIT 1.1
================================================================================
HEARST-ARGYLE TELEVISION INC.
(a Delaware corporation)
Series A Common Stock
PURCHASE AGREEMENT
Dated: November 5, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. Representations and Warranties....................... 4
(a) Representations and Warranties by the Company............ 4
(1) Compliance with Registration Requirements........... 4
(2) Incorporated Documents.............................. 5
(3) Independent Accountants............................. 5
(4) Financial Statements................................ 5
(5) No Material Adverse Change in Business.............. 6
(6) Good Standing of the Company........................ 6
(7) Good Standing of Subsidiaries....................... 7
(8) Capitalization...................................... 7
(9) Authorization of this Underwriting Agreement
and Terms Agreement................................. 7
(10) Authorization of Common Stock...................... 8
(11) Description of the Common Stock.................... 8
(12) Absence of Defaults and Conflicts.................. 8
(13) Absence of Labor Dispute........................... 9
(14) Absence of Proceedings............................. 9
(15) Accuracy of Exhibits............................... 10
(16) Absence of Further Requirements.................... 10
(17) Possession of Intellectual Property................ 10
(18) Possession of Licenses and Permits................. 11
(19) Title to Property.................................. 11
(20) Investment Company Act............................. 11
(21) Environmental Laws................................. 11
(22) Compliance with Cuba Act........................... 12
(23) Registration Rights................................ 12
(24) Affiliation Agreements............................. 12
(b) Officers' Certificates................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing........... 13
(a) Underwritten Securities.................................. 13
(b) Option Underwritten Securities........................... 13
(c) Payment.................................................. 14
(d) Denominations; Registration.............................. 14
SECTION 3. Covenants of the Company............................. 15
(a) Compliance with Securities Regulations and
Commission Requests...................................... 15
(b) Filing Amendments........................................ 15
(c) Compliance with Securities Laws.......................... 15
(d) Earnings Statement....................................... 16
(e) Delivery of Registration Statements and Prospectuses..... 16
(f) Blue Sky Qualifications.................................. 16
(g) Delivery of Documents.................................... 17
<PAGE>
- ii -
(h) Use of Proceeds.......................................... 17
(i) Reporting Requirements................................... 17
(j) Listing.................................................. 17
(k) Restriction on Sale of Securities........................ 17
(l) Compliance with NASD Rules............................... 17
SECTION 4. Payment of Expenses.................................. 18
(a) Expenses................................................. 18
(b) Termination of Agreement................................. 19
SECTION 5. Conditions of Underwriters' Obligations.............. 19
(a) Effectiveness of Registration Statement.................. 19
(b) Material Adverse Changes................................. 20
(c) Opinion of Counsel for Company........................... 20
(d) Opinion of FCC Counsel................................... 23
(e) Opinion of Counsel of Underwriters....................... 25
(f) Officers' Certificate.................................... 25
(g) Ernst & Young Comfort Letter............................. 25
(h) Ernst & Young Bring-down Comfort Letter.................. 27
(i) Deloitte & Touche Comfort Letter......................... 27
(j) Deloitte & Touche Bring-down Comfort Letter.............. 30
(k) Approval of Listing...................................... 30
(l) No Objection............................................. 30
(m) Lock-up Agreement........................................ 30
(n) Over-Allotment Option.................................... 30
(o) Additional Documents..................................... 31
(p) Termination of Terms Agreement........................... 31
SECTION 6. Indemnification...................................... 32
(a) Indemnification by the Company........................... 32
(b) Indemnification of Company, Directors and
Officers................................................. 34
(c) Actions against Parties; Notification.................... 34
(d) Settlement without Consent if Failure to
Reimburse................................................ 35
(e) Indemnification for Reserved Securities.................. 35
SECTION 7. Contribution........................................ 35
SECTION 8. Representations, Warranties and Agreements
to Survive Delivery................................. 37
SECTION 9. Termination......................................... 37
(a) Underwriting Agreement................................... 37
(b) Terms Agreement.......................................... 38
(c) Liabilities.............................................. 38
<PAGE>
- iii -
SECTION 10. Default by One or More of the Underwriters.......... 38
SECTION 11. Notices............................................. 39
SECTION 12. Parties............................................. 39
SECTION 13. GOVERNING LAW AND TIME.............................. 40
SECTION 14. Effect of Headings.................................. 40
SECTION 15. Representation of Underwriters...................... 40
SECTION 16. Counterparts 40
<PAGE>
HEARST-ARGYLE TELEVISION, INC.
(a Delaware corporation)
Series A Common Stock
PURCHASE AGREEMENT
------------------
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Hearst-Argyle Television, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell up to 11,500,000 shares of its shares of Series A
Common Stock, par value $.01 per share (the "Common Stock"), from time to time,
in or pursuant to one or more offerings on terms to be determined at the time of
sale. As used herein, "Securities" shall mean the Common Stock.
Whenever the Company determines to make an offering of Securities through
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), or through an underwriting syndicate managed by Merrill
Lynch, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, Merrill Lynch and such other underwriters, if any, selected by
Merrill Lynch (the "Underwriters", which term shall include Merrill Lynch,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the offering of Securities shall specify the number
of Securities to be initially issued (the "Initial Underwritten Securities"),
the name of each Underwriter participating in such offering (subject to
substitution as provided in Section 10 hereof) and the name of any Underwriter
other than Merrill Lynch acting as co-manager in connection with such offering,
the number of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, whether such offering is on a fixed or variable
price basis and, if on a fixed price basis,
<PAGE>
- 2 -
the initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number of Securities
subject to such option (the "Option Underwritten Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of any Option Underwritten Securities. The
Terms Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the form of an exchange of any standard form of written
telecommunications between the Company and Merrill Lynch, acting for itself and,
if applicable, as representative of any other Underwriters. Unless otherwise
provided for, each offering of Underwritten Securities through Merrill Lynch as
sole Underwriter or through an underwriting syndicate managed by Merrill Lynch
will be governed by this Underwriting Agreement, as supplemented by the
applicable Terms Agreement.
The Company and the Underwriters agree that up to the number of shares of
the Securities specified in the applicable Terms Agreement (the "Reserved
Securities") shall be reserved for sale by the Underwriters to certain eligible
employees and persons having business relationships with the Company, as part of
the distribution of the Securities by the Underwriters, subject to the terms of
this Underwriting Agreement and the applicable Terms Agreement, the applicable
rules, regulations and interpretations of the National Association of Securities
Dealers, Inc. (the "NASD") and all other applicable laws, rules and regulations.
To the extent that such Reserved Securities are not orally confirmed for
purchase by such eligible employees and persons having business relationships
with the Company by the end of the first business day after the date of the
applicable Terms Agreement, such Reserved Securities may be offered to the
public as part of the public offering contemplated by such Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (file no. 333-36659) and pre-
effective amendment no. 1 thereto for the registration of the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such post-effective amendments thereto as may be
required prior to the execution of the applicable Terms Agreement. Such
registration statement, as so amended, has been declared effective by the
Commission. Such registration statement, as so amended,
<PAGE>
- 3 -
including the information, if any, deemed to be part thereof pursuant to Rule
430A of the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of
the 1933 Act Regulations (the "Rule 434 Information"), is referred to herein as
the "Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Underwritten Securities, in the form
furnished to the Underwriters by the Company for use in connection with the
offering of the Underwritten Securities, are collectively referred to herein as
the "Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (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; and provided, further, that if the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet 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 ("EDGAR").
All references in this Underwriting Agreement 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 in this Underwriting Agreement to
amendments or
<PAGE>
- 4 -
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to Merrill Lynch, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below)(in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
-----------------------------------------
requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 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 respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including the
filing of the Company's most recent Annual Report on Form 10-K with the
Commission) became effective and at each Representation Date, the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act 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. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material fact or
omit 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.
If the Company elects to rely upon Rule 434 of the 1933 Act Regulations, the
Company will comply with the requirements of Rule 434. 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
<PAGE>
- 5 -
writing by any Underwriter through Merrill Lynch 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 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of Underwritten Securities will, at the time of
such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. 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 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at each Date
of Delivery, if any, 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.
(3) Independent Accountants. 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 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. 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
<PAGE>
- 6 -
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 1933 Act
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.
(5) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Prospectus, except as otherwise
stated therein, (A) 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"), (B) 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 (C) 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.
(6) Good Standing of the Company. 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.
(7) Good Standing of Subsidiaries. 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
<PAGE>
- 7 -
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.
(8) Capitalization. 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
Underwriting 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.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
----------------------------------------------------------------
This Underwriting Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and delivered by the
Company.
(10) Authorization of Common Stock. The Underwritten Securities have
-----------------------------
been, or as of the date of such Terms Agreement will have been, duly authorized
by the Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. The Underwritten Securities, when issued and delivered by
the Company pursuant to this Underwriting Agreement and such Terms Agreement
against payment of the purchase price therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and will not be
issued in violation of any preemptive or other similar rights of any
securityholder of the Company.
(11) Description of the Common Stock. The Underwritten Securities
-------------------------------
being sold pursuant to the applicable Terms Agreement, when issued and delivered
will conform in all
<PAGE>
- 8 -
material respects to the statements relating thereto contained or incorporated
by reference in the Prospectus.
(12) Absence of Defaults and Conflicts. 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 this
Underwriting Agreement, the applicable Terms 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 Underwritten Securities and
the use of the proceeds from the sale of the Underwritten 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
<PAGE>
- 9 -
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.
(13) Absence of Labor Dispute. 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.
(14) Absence of Proceedings. 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 this Underwriting Agreement or the
applicable Terms Agreement 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.
(15) Accuracy of Exhibits. 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.
(16) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order
<PAGE>
- 10 -
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 this
Underwriting Agreement or the applicable Terms Agreement or in connection with
the transactions contemplated under this Underwriting Agreement or such Terms
Agreement, except such as have been already obtained or as may be required under
the 1934 Act, the 1934 Act Regulations, state securities laws or the by-laws and
rules of the NASD.
(17) Possession of Intellectual Property. 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.
(18) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess or have made application for such Licenses issued by 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
Licenses to be in full force and effect, singly or in the aggregate, 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 Governmental 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.
<PAGE>
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(19) Title to Property. The Company and its subsidiaries have good
-----------------
and marketable title or a valid leasehold interest, as the case may be, 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 (A) as
otherwise stated in the Registration Statement or the Prospectus or (B) those
which would not, singly or in the aggregate have a Material Adverse Effect.
(20) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Underwritten 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 (the "1940 Act").
(21) Environmental Laws. 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, (A) 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"), (B) 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 (C) 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.
(22) Compliance with Cuba Act. The Company has complied with, and is
------------------------
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of
<PAGE>
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doing business with Cuba, codified as Section 517.075 of the Florida statutes,
and the rules and regulations thereunder or is exempt therefrom.
(23) Registration Rights. 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 1933 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 1933 Act.
(24) Affiliation Agreements. 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.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms
and conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number of the Option Underwritten Securities set
forth therein at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice
<PAGE>
- 13 -
by Merrill Lynch to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by Merrill Lynch, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by Merrill Lynch and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities then being purchased which the
number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities,
subject to such adjustments as Merrill Lynch in its discretion shall make to
eliminate any sales or purchases of a fractional number or aggregate principal
amount, as the case may be, of Option Underwritten Securities. The Company shall
not be obligated to deliver any of the Securities to be delivered on the Date of
Delivery, except upon payment for all of the Securities to be purchased on such
Date of Delivery provided herein.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Rogers & Wells,
200 Park Avenue, New York, N.Y. 10166, or at such other place as shall be agreed
upon by Merrill Lynch and the Company, at 10:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date of the applicable Terms Agreement (unless postponed
in accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by Merrill
Lynch and the Company (such time and date of payment and delivery being herein
called "Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Rogers & Wells, or at such other place as shall be agreed upon by Merrill Lynch
and the Company, on the relevant Date of Delivery as specified in the notice
from Merrill Lynch to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to bank accounts designated by the Company against delivery to
Merrill Lynch for the respective
<PAGE>
- 14 -
accounts of the Underwriters of the Underwritten Securities, if any, to be
purchased by them. It is understood that each Underwriter has authorized Merrill
Lynch, for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Underwritten Securities which it has severally
agreed to purchase. Merrill Lynch, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Underwritten
Securities shall be in such denominations and registered in such names as
Merrill Lynch may request in writing at least two full business days prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
Certificates for the Underwritten Securities will be made available for
examination and packaging by Merrill Lynch in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with the
------------------------
several Underwriters in connection with each offering of Underwritten Securities
as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company will file the Prospectus with the Commission pursuant to and in
accordance with Rule 424 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 Merrill Lynch 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) Filing Amendments. The Company will advise Merrill Lynch promptly
of any proposal to amend or supplement the Registration Statement or the
Prospectus, will afford Merrill Lynch a reasonable opportunity to comment on any
such proposed amendment or supplement and will not file any such document to
which Merrill Lynch or counsel for the Underwriters reasonably shall 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 1933 Act and the
1933 Act Regulations;
<PAGE>
- 15 -
and the Company will also advise Merrill Lynch 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) Compliance with Securities Laws. The Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Underwritten Securities
as contemplated in this Underwriting Agreement and the applicable Terms
Agreement and in the Registration Statement and the Prospectus. If, at any time
when a Prospectus relating to the Underwritten Securities is required to be
delivered under the 1933 Act in connection with sales by any Underwriter or
dealer, any event occurs as a result of which in the opinion of counsel to the
Company it is necessary 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 1933 Act, the Company promptly will notify Merrill
Lynch 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 Merrill
Lynch'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) Earnings Statement. The Company will timely file all such reports
pursuant to the 1934 Act and the 1934 Act Regulations as are necessary in order
to make generally available to its securityholders as soon as practicable (but
not later than 90 days after the close of the Company's current fiscal year (in
form and in a manner complying with Rule 158 of the 1933 Act Regulations) an
earnings statement in order to satisfy the provisions of Section 11(a) of the
1933 Act.
(e) Delivery of Registration Statements and Prospectuses. The Company
will furnish to Merrill Lynch 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 Merrill Lynch reasonably requests, during the period when the
Prospectus is required to be delivered under the 1933 Act, and the Company
hereby consents to the use of such copies for purposes permitted under the 1933
Act. The Company will pay the expenses of
<PAGE>
- 16 -
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
EDGAR, except to the extent permitted by Regulation S-T.
(f) Blue Sky Qualifications. The Company will use its best efforts to
qualify the Underwritten Securities for sale under the laws of such
jurisdictions as Merrill Lynch 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 charter, certificate of incorporation, by-laws or other governing
documents. In each jurisdiction in which the Underwritten 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 Underwritten
Securities.
(g) Delivery of Documents. During the period until three years after
the date of any Terms Agreement, the Company will furnish to Merrill Lynch 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 Merrill Lynch (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the 1934 Act or mailed to stockholders,
and (ii) from time to time, such other information concerning the Company as
Merrill Lynch may reasonably request.
(h) Use of Proceeds. 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".
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(j) Listing. The Company will use it best efforts to effect the
listing of the Underwritten Securities, prior to the
<PAGE>
- 17 -
Closing Time, on any national securities exchange or quotation system if and as
specified in the applicable Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified in
such Terms Agreement, the Company will not, without the prior written consent of
Merrill Lynch, directly or indirectly, issue, sell or offer to sell, grant any
option for sale of, or otherwise dispose, of the securities specified in such
Terms Agreement, subject to the conditions and exceptions described therein.
(l) Compliance with NASD Rules. The Company hereby agrees that it
will ensure that the Reserved Securities will be restricted as required by the
NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation
for a period of three months following the date of this Agreement. The
Underwriters will notify the Company as to which persons will need to be so
restricted. At the request of the Underwriters, the Company will direct the
transfer agent to place a stop transfer restriction upon such securities for
such period of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to
performance of its obligations under this Underwriting Agreement or the
applicable Terms 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 Underwriting 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 Underwritten Securities, (iii) the preparation,
issuance and delivery of the Underwritten Securities and certificates for the
Underwritten Securities to the Underwriters, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Underwritten 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 Underwritten
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, 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
<PAGE>
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delivery of any Blue Sky Survey and any amendment thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, and the Prospectus and any amendments or supplements thereto, (vii) the
fees and expenses incurred with respect to the listing of the Underwritten
Securities, (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 NASD of the terms of the sale of the Underwritten Securities, (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, and (x) all costs and expenses of the Underwriters,
including the reasonable fees and disbursements of counsel for the Underwriters,
in connection with matters related to the Reserved Securities which are
designated by the Company for sale to employees and others having a business
relationship with the Company. The Underwriters shall pay any transfer taxes on
the Underwritten Securities which they may sell, and the expenses of advertising
any offering of the Underwritten Securities made by the Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Prospectus shall
have been filed with the Commission in accordance with the 1933 Act Regulations
and Section 3(a) hereof. The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act, and no stop
order suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued under the 1933 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
<PAGE>
- 19 -
information relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424 of the 1933 Act (or any post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or, if the
Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term
Sheet including the Rule 434 Information shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Material Adverse Changes. At the Closing Time, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), 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 Merrill Lynch, 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 Underwritten Securities; (ii) any suspension or
limitation of trading in securities generally on the Nasdaq National Market
("Nasdaq"), or any setting of minimum prices for trading on Nasdaq, or any
suspension of trading of any securities of the Company on Nasdaq or in the over-
the-counter market; (iii) any banking moratorium declared by U.S. Federal or New
York authorities; or (iv) 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 Merrill Lynch,
the effect of any such outbreak, escalation, declaration, calamity or emergency
on the financial markets of the United States makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Underwritten Securities.
(c) Opinion of Counsel for Company. At Closing Time, Merrill Lynch
shall have received the favorable opinion, dated as of Closing Time, of Rogers &
Wells, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(1) 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;
(2) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good
<PAGE>
- 20 -
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;
(3) The Underwritten Securities to be sold by the Company have been
duly authorized the Company for issuance and sale pursuant to the Underwriting
Agreement and the applicable Terms Agreement. The Underwritten Securities to be
sold by the Company, when issued and delivered by the Company pursuant to the
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and nonassessable and the issuance of such Underwritten
Securities will not be subject to preemptive or other similar rights of any
security holder of the Company 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. The form of certificate, if any, used to evidence the Underwritten
Securities will be in due and proper form and complies with the applicable
statutory requirements, with any applicable requirements of the charter or by-
laws of the Company and with the requirements of the Nasdaq National Market.
(4) 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 (other than rights which have been waived
or suspended) to require the Company to file a registration statement under the
1933 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 1933 Act;
<PAGE>
- 21 -
(5) 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
Underwriting Agreement and the applicable Terms Agreement in connection with the
issuance or sale of the Underwritten 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 Underwritten Securities under the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act 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;
(6) The execution, delivery and performance of the Underwriting
Agreement and the applicable Term Agreement and the consummation by the Company
of such transactions contemplated thereby, and the issuance and sale of the
Underwritten Securities by the Company 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 statue, 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 Underwritten Securities to be
sold by it as contemplated by the Underwriting Agreement and the applicable
Terms Agreement. Such counsel expresses no opinion in this Paragraph 6 with
respect to (i) 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 (ii) the By-Laws or rules of the NASD or any state securities laws;
(7) The Registration Statement has become effective under the 1933
Act, the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the 1933 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 1933 Act;
<PAGE>
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(8) The Registration Statement relating to the Underwritten
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 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 1933 Act and 1933 Act Regulations;
(9) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company; and
(10) 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 is 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) Opinion of FCC Counsel. At Closing Time, Merrill Lynch shall
have received the favorable opinion, dated as
<PAGE>
- 23 -
of Closing Time, of Brooks, Pierce, McLendon, Humphrey & Leonard, special FCC
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(1) The execution, delivery and performance of the Underwriting
Agreement and the applicable Terms Agreement will not result in a violation of
the Communications Act or the any order, rule or regulation of the FCC;
(2) 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 Underwriting Agreement and the applicable Terms
Agreement in connection with the issuance or sale of the Underwritten Securities
by the Company, except such as have been obtained and made under the
Communications Act or the rules and regulations of the FCC;
(3) 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 broadcast television group (the
"Hearst Broadcast Group") of the Hearst Corporation, a Delaware corporation
("Hearst"), 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;
(4) 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
(5) 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
<PAGE>
- 24 -
material impairment of the rights of the Company and its subsidiaries in the FCC
Licenses.
(e) Opinion of Counsel of Underwriters. At Closing Time, Merrill
Lynch shall have received the favorable opinion, dated as of Closing Time, of
Dow, Lohnes & Albertson, PLLC, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
with respect to the incorporation of the Company, the validity of the
Underwritten 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) Officers' Certificate. At Closing Time, Merrill Lynch 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 Time, 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
1 are true and correct in all material respects with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Company has
complied in all material respects with all agreements and satisfied under this
Underwriting Agreement and the applicable Terms Agreement all conditions on its
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has bee
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(g) Ernst & Young Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received from Ernst & Young
LLP a letter dated such date, confirming that they are independent public
auditors within the meaning of the Act and the applicable 1933 Act Regulations
thereunder and stating to the effect that:
(1) 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 1993 Act
and the related 1933 Act Regulations;
<PAGE>
- 25 -
(2) 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;
(3) 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:
(i) 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 1933 Act and the related 1993 Act Regulations or any
material modifications should be made to such unaudited financial statements for
them to be in conformity with generally accepted accounting principles;
(ii) 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;
(iii) 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 applicable 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
(iv) 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,
<PAGE>
- 26 -
or in the total or per share amounts of consolidated income before extraordinary
items;
except in all cases set forth in clauses (iii) and (iv) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur;
(4) 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 Hearst Broadcast Group, 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) Ernst & Young Bring-down Comfort Letter. At Closing Time, Merrill
Lynch shall have received from Ernst & Young LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section 5, except that the
specified date referred to shall be a date not more than five business days
prior to the Closing Time.
(i) Deloitte & Touche Comfort Letter. At the time of the execution of
the applicable Terms Agreement, Merrill Lynch shall have received from Deloitte
& Touche LLP a letter dated such date, confirming that they are independent
public accountants within the meaning of the 1933 Act and the applicable 1933
Act Regulations thereunder and stating to the effect that:
(1) 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 1933 Act Regulations;
(2) 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
<PAGE>
- 27 -
the unaudited financial statements examined by them and included in the
Registration Statement;
(3) 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:
(i) 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 1933 Act and the related 1933
Act 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;
(ii) if any unaudited pro forma financial information is contained in
the Prospectus, the unaudited pro forma revenues and broadcast cash flows were
not determined on a basis substantially consistent with that of the
corresponding amounts in the unaudited pro forma statements of operations;
(iii) 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 applicable 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
(iv) 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 (iii) and (iv) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur;
(4) they have compared the disclosure under the caption "Ratio of
Earnings to Fixed Charges" of the Hearst
<PAGE>
- 28 -
Broadcast Group and of 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
(5) 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
(6) 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.
<PAGE>
- 29 -
(j) Deloitte & Touche Bring-down Comfort Letter. At Closing Time,
Merrill Lynch shall have received from Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (i) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(k) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(l) No Objection. If the Registration Statement or an offering of
Underwritten 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.
(m) Lock-up Agreement. On the date of the applicable Terms Agreement,
Merrill Lynch shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement, subject to
the exceptions, if any, in such Terms Agreement, as being required to be
delivered by the person listed therein.
(n) Over-Allotment Option. In the event that the Underwriters
exercise their option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct in all material respects as of
each Date of Delivery, and, at the relevant Date of Delivery, Merrill Lynch
shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate delivered at
the Closing Time pursuant to Section 5(f) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinions of Rogers & Wells and of Brooks, Pierce,
McLendon, Humphrey & Leonard in form and substance reasonably satisfactory to
counsel for the Underwrites, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinions
required by Sections 5(c) and 5(d) hereof, respectively.
(3) The favorable opinion of Dow, Lohnes & Albertson, PLLC, counsel
for the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and
<PAGE>
- 30 -
otherwise to the same effect as the opinion required by Section 5(e) hereof.
(4) A letter from Ernst & Young LLP, in form and substance reasonably
satisfactory to Merrill Lynch and dated such Date of Delivery, substantially in
the same form and substance as a letter furnished to Merrill Lynch pursuant to
Section 5(g) hereof, except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date no more than three business days
prior to such Date of Delivery.
(5) A letter from Deloitte & Touche LLP, in form and substance
reasonably satisfactory to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as a letter furnished to Merrill
Lynch pursuant to Section 5(j) hereof, except that the "specified date" on the
letter furnished pursuant to this paragraph shall be a date no more than three
business days prior to such Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they reasonably may require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten 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 Underwritten Securities as herein contemplated
shall be reasonably satisfactory in form and substance to Merrill Lynch and
counsel for the Underwriters.
(p) Termination of Terms Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by Merrill Lynch by notice to the Company at any
time or prior to the Closing Time (or such Date of Delivery, as applicable), and
such termination shall be without liability of any party to any other party
except as provided in Section 4 and except Sections 6 and 7 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any who controls any
Underwriter within the meaning of
<PAGE>
- 31 -
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) 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 the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, 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;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable laws
or regulations of foreign jurisdictions where Reserved Securities have been
offered and (B) any untrue statement or alleged untrue statement of a material
fact included in the Prospectus or preliminary prospectus distributed in
connection with the reservation and sale of the Reserved Securities to certain
directors, officers, employees and other persons associated with the Company of
the Hearst Corporation or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, when considered in
conjunction with the Prospectus or preliminary prospectus, not misleading;
(3) 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 Sections 6(a)(1) or 6(a)(2) hereof;
provided that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(4) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), 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
Section 6(a)(1), 6(a)(2) or 6(a)(3) hereof to the extent that any such expense
is not paid under (1), (2) or (3) above;
<PAGE>
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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 Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, 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 in the
applicable 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 3(b) and 3(c) 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) Indemnification of Company, Directors and Officers. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as 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 the Rule 430A
Information and the Rule 434 Information deemed to be part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
<PAGE>
- 33 -
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Merrill Lynch
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 applicable Terms Agreement.
(c) Actions against Parties; Notification. 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 Merrill
Lynch, 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 6 or Section
7 hereof (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.
<PAGE>
- 34 -
(d) Settlement without Consent if Failure to Reimburse. 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)(3) 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.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of certain directors, officers, employees and
other persons associated with the Company of the Hearst Corporation to pay for
and accept delivery of Reserved Securities which, by the end of the first
business day following the date of this Agreement, were subject to a properly
confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof 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 Underwritten Securities pursuant to the applicable 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, or any violation of the nature
referred to in Section 6(a)(1) hereof, 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
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the
<PAGE>
- 35 -
offering of such Underwritten 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, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such cover
or Term Sheet.
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, or any violation of the nature referred to in
Section 6(a)(1) hereof.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 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 Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten 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.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the
<PAGE>
- 36 -
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section are several in proportion to the number of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time by
the Company or by Merrill Lynch upon the giving of 30 days' prior written notice
of such termination to the other party hereto.
(b) Terms Agreement. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if, since the time of execution of such Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, there shall have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or other), or
the earnings, business affairs, business prospects, 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 Merrill Lynch, 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
Underwritten Securities; (ii) any suspension or limitation of trading in
securities generally on the Nasdaq, or any setting of minimum prices for trading
on Nasdaq, or any suspension of trading of any securities of the Company on
Nasdaq or in the over-the-counter market; (iii) any banking moratorium declared
by U.S. Federal or New York authorities; or (iv) 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
<PAGE>
- 37 -
majority in interest of the Underwriters including Merrill Lynch, the effect of
any such outbreak, escalation, declaration, calamity or emergency on the
financial markets of the United States makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Underwritten Securities.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Merrill Lynch shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other Underwriter, to purchase all, but not less than all,
of the Defaulting Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Underwritten Securities to be purchased on such date pursuant to such
Terms Agreement, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Underwritten Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option Underwritten
Securities on such Date of Delivery) shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
<PAGE>
- 38 -
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either Merrill Lynch or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be given in writing as directed in the applicable Terms Agreement and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication.
SECTION 12. Parties. This Underwriting Agreement and the applicable
-------
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, Merrill Lynch and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. 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 Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting 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 Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
----------------------
APPLICABLE 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 this Underwriting Agreement or any
Terms Agreement or the transactions contemplated thereby.
<PAGE>
- 39 -
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
are for convenience only and shall not affect the construction hereof.
SECTION 15. Representation of Underwriters. Merrill Lynch will act for
------------------------------
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under this Underwriting Agreement or such Terms
Agreement taken by Merrill Lynch will be binding upon all the Underwriters.
SECTION 16. Counterparts. The 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.
<PAGE>
- 40 -
If the foregoing is in accordance with your understanding or our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between Merrill Lynch and the Company in accordance with its terms.
Very truly yours,
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
-----------------------------
Name: Dean H. Blythe
Title: Senior Vice President/
Corporate Development,
General Counsel and
Secretary
CONFIRMED AND ACCEPTED,
as of the first
above written:
Merrill Lynch
By: /s/ Palma Mazzolla
---------------------------
Authorized Signatory
<PAGE>
EXHIBIT 1.2
HEARST-ARGYLE TELEVISION, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
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
<PAGE>
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 ("EDGAR").
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.
<PAGE>
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 EDGAR, 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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,
<PAGE>
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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
copies thereof filed with the Commission pursuant to EDGAR, 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,
<PAGE>
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
<PAGE>
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
<PAGE>
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 Rogers & Wells, 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
<PAGE>
(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
<PAGE>
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
<PAGE>
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, McLendon, Humphrey & Leonard, special
FCC
<PAGE>
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.
<PAGE>
(e) The Representatives shall have received from Dow, Lohnes &
Albertson, 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,
<PAGE>
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;
<PAGE>
(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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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 888 Seventh Avenue, New York, New York
10106, Attention: Dean H. Blythe.
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
<PAGE>
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.
<PAGE>
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Joseph Fashano
--------------------------------------------
Title: Director
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
------------------------------------------
Title: Senior Vice President/Corporate
Development, General Counsel and
Secretary
<PAGE>
EXHIBIT 1.3
_________________________________________________________________
_________________________________________________________________
HEARST-ARGYLE TELEVISION, INC.
(a Delaware corporation)
800,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: November 5, 1997
_________________________________________________________________
_________________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
Page
------
SECTION 1. Representations and Warranties.................... 4
------------------------------
(a) Representations and Warranties by the Company.............. 4
(1) Compliance with Registration Requirements........... 4
-----------------------------------------
(2) Incorporated Documents.............................. 5
----------------------
(3) Independent Accountants............................. 5
-----------------------
(4) Financial Statements................................ 5
--------------------
(5) No Material Adverse Change in Business.............. 6
--------------------------------------
(6) Good Standing of the Company........................ 6
----------------------------
(7) Good Standing of Subsidiaries....................... 6
-----------------------------
(8) Capitalization...................................... 7
--------------
(9) Authorization of this Agreement and Terms Agreement 7
---------------------------------------------------
(10) Authorization of Common Stock....................... 7
-----------------------------
(11) Description of the Common Stock..................... 7
-------------------------------
(12) Absence of Defaults and Conflicts................... 8
---------------------------------
(13) Absence of Labor Dispute............................ 9
------------------------
(14) Absence of Proceedings.............................. 9
----------------------
(15) Accuracy of Exhibits................................ 9
--------------------
(16) Absence of Further Requirements..................... 9
-------------------------------
(17) Possession of Intellectual Property................. 10
-----------------------------------
(18) Possession of Licenses and Permits.................. 10
----------------------------------
(19) Title to Property................................... 10
-----------------
(20) Investment Company Act.............................. 11
----------------------
(21) Environmental Laws.................................. 11
------------------
(22) Compliance with Cuba Act............................ 11
------------------------
(23) Registration Rights................................. 12
-------------------
(24) Affiliation Agreements.............................. 12
----------------------
(b) Officers' Certificates................................... 12
SECTION 2. Sale and Delivery to International Managers; Closing 12
----------------------------------------------------
(a) Initial International Securities......................... 12
(b) International Option Securities.......................... 12
(c) Payment.................................................. 13
(d) Denominations; Registration.............................. 14
SECTION 3. Covenants of the Company 14
------------------------
(a) Compliance with Securities Regulations and Commission
Requests............................................... 14
(b) Filing Amendments........................................ 14
(c) Compliance with Securities Laws.......................... 15
(d) Earnings Statement....................................... 15
(e) Delivery of Registration Statements and Prospectuses..... 15
(f) Blue Sky Qualifications.................................. 16
(g) Delivery of Documents.................................... 16
(h) Use of Proceeds.......................................... 16
(i) Reporting Requirements................................... 16
(j) Listing.................................................. 17
<PAGE>
- ii -
(k) Restriction on Sale of Securities........................ 17
(l) Compliance with NASD Rules............................... 17
SECTION 4. Payment of Expenses................................. 17
-------------------
(a) Expenses................................................. 17
(b) Termination of Agreement................................. 18
SECTION 5. Conditions of International Managers' Obligations... 18
-------------------------------------------------
(a) Effectiveness of Registration Statement.................. 18
(b) Material Adverse Changes................................. 19
(c) Opinion of Counsel for Company........................... 19
(d) Opinion of FCC Counsel................................... 23
(e) Opinion of Counsel of Underwriters....................... 24
(f) Officers' Certificate.................................... 24
(g) Ernst & Young Comfort Letter............................. 24
(h) Ernst & Young Bring-down Comfort Letter.................. 26
(i) Deloitte & Touche Comfort Letter......................... 26
(j) Deloitte & Touche Bring-down Comfort Letter.............. 29
(k) Approval of Listing...................................... 29
(l) No Objection............................................. 29
(m) Lock-up Agreements....................................... 29
(n) Over-Allotment Option.................................... 29
(o) Additional Documents..................................... 30
(p) Termination of This Agreement............................ 30
SECTION 6. Indemnification..................................... 31
---------------
(a) Indemnification by the Company........................... 31
(b) Indemnification of Company, Directors and Officers....... 32
(c) Actions against Parties; Notification.................... 33
(d) Settlement without Consent if Failure to Reimburse....... 34
(e) Indemnification for Reserved Securities.................. 34
SECTION 7. Contribution........................................ 34
------------
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.................................... 36
----------------
SECTION 9. Termination......................................... 36
-----------
(a) General.................................................. 36
(b) Liabilities.............................................. 37
SECTION 10. Default by One or More of the International Managers 37
----------------------------------------------------
SECTION 11. Notices............................................. 38
-------
SECTION 12. Parties............................................. 38
-------
<PAGE>
- iii -
SECTION 13. Governing Law and Time.............................. 38
----------------------
SECTION 14. Effect of Headings.................................. 38
------------------
SECTION 15. Representation of International Managers............ 39
----------------------------------------
SECTION 16. Counterparts........................................ 39
------------
<PAGE>
HEARST-ARGYLE TELEVISION, INC.
(a Delaware corporation)
800,000 Shares of Series A Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Merrill Lynch International
Credit Suisse First Boston (Europe) Limited
J.P. Morgan Securities Ltd.
Morgan Stanley & Co. International Limited
Nesbitt Burns Securities Inc.
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Hearst-Argyle Television, Inc., a Delaware corporation (the "Company")
confirms its agreement with Merrill Lynch International ("Merrill Lynch") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers," which term shall also include any
International Manager substituted as hereinafter provided in Section 10 hereof),
for whom Merrill Lynch is acting as representative (in such capacity, the "The
Lead Manager"), and each of the International Managers confirms its agreement
with the Company, with respect to the issue and sale by the Company and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Series A Common Stock, par value $.01 per share,
of the Company (the "Common Stock") set forth in said Schedule A, and with
respect to the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 120,000 additional shares of Common Stock to cover
over-allotments, if any. The aggregate 800,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 120,000 shares of Common Stock subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities."
<PAGE>
- 2 -
It is understood that the Company is concurrently entering into a terms
agreement and related purchase agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Company of an aggregate
of 3,200,000 shares of Common Stock (the "Initial U.S. Securities") through
arrangements with certain Underwriters in the United States and Canada (the
"U.S. Underwriters") for which Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Credit Suisse First Boston Corporation, J.P. Morgan Securities
Inc. and Morgan Stanley & Co. Incorporated are acting as representatives (the
"U.S. Representatives") and the grant by the Company to the U.S. Underwriters,
acting severally and not jointly, of an option to purchase all or any part of
the U.S. Underwriters' pro rata portion of up to 480,000 additional shares of
Common Stock solely to cover overallotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities." It is understood that the Company is
not obligated to sell and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters. It is also
understood that up to 300,000 shares of the Initial U.S. Securities to be
purchased by the U.S. Underwriters shall be reserved for sale (the "Reserved
Securities") by the U.S. Underwriters to certain directors, officers, employees
and other persons associated with the Company and The Hearst Corporation.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the International Securities, and the U.S. Securities are
hereinafter collectively called the "Securities."
The International Managers and the U.S. Underwriters will concurrently
enter into an Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of certain
transactions among the International Managers and the U.S. Underwriters under
the direction of Merrill Lynch (in such capacity, the "Global Coordinator").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (file no. 333-36659) and pre-
effective amendment no. 1 thereto for the registration of the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such post-effective
<PAGE>
- 3 -
amendments thereto as may be required prior to the execution of this Agreement.
Such registration statement, as so amended, has been declared effective by the
Commission. Such registration statement, as so amended, including the
information, if any, deemed to be part thereof pursuant to Rule 430A of the 1933
Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the International Securities, in the form
furnished to the International Managers by the Company for use in connection
with the offering of the International Securities, are collectively referred to
herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"); provided, further, that if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (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; and provided, further,
that if the Company elects to rely upon Rule 434 of the 1933 Act Regulations,
then all references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the registration statement became
effective and any prospectus that omitted, as applicable, the Rule 430A
Information, the Rule 434 Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, that was used after such effectiveness and
prior to the execution and delivery of this Agreement. For purposes of this
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
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 ("EDGAR").
All references in this Agreement 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
<PAGE>
- 4 -
the case may be; and all references in this Agreement 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 1934
Act which is incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Lead Manager as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below)(in
each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 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 respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including the
filing of the Company's most recent Annual Report on Form 10-K with the
Commission) became effective and at each Representation Date, the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act 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. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, the Prospectus and any amendments and supplements
thereto did not and will not include an untrue statement of a material fact or
omit 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.
If the Company elects to rely upon Rule 434 of the 1933 Act Regulations, the
Company will comply with the requirements of Rule 434. 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
<PAGE>
- 5 -
the Company in writing by any International Manager through The Lead Manager
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 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the International
Managers for use in connection with the offering of Securities will, at the time
of such delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. 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 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at each Date
of Delivery, if any, 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.
(3) Independent Accountants. 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 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. 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
<PAGE>
- 6 -
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 1933 Act
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.
(5) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Prospectus, except as otherwise
stated therein, (A) 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"), (B) 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 (C) 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.
(6) Good Standing of the Company. 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.
(7) Good Standing of Subsidiaries. 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
<PAGE>
- 7 -
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.
(8) Capitalization. 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.
(9) Authorization of this Agreement and Terms Agreement. This
---------------------------------------------------
Agreement has been, as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(10) Authorization of Common Stock. The Securities have been duly
-----------------------------
authorized by the Company for issuance and sale pursuant to this Agreement. The
Securities, when issued and delivered by the Company pursuant to this Agreement
against payment of the purchase price therefor specified, will be validly
issued, fully paid and non-assessable and will not be issued in violation of any
preemptive or other similar rights of any securityholder of the Company.
(11) Description of the Common Stock. The Securities being sold
-------------------------------
pursuant to this Agreement, when issued and delivered will conform in all
material respects to the statements relating thereto contained or incorporated
by reference in the Prospectus.
<PAGE>
- 8 -
(12) Absence of Defaults and Conflicts. 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 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 Securities and the use of the proceeds from the sale of the 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
<PAGE>
- 9 -
"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.
(13) Absence of Labor Dispute. 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.
(14) Absence of Proceedings. 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 this Agreement 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.
(15) Accuracy of Exhibits. 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.
(16) Absence of Further Requirements. 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 this Agreement or in connection
<PAGE>
- 10 -
with the transactions contemplated under this Agreement, except such as have
been already obtained or as may be required under the 1934 Act, the 1934 Act
Regulations, state securities laws or the by-laws and rules of the NASD.
(17) Possession of Intellectual Property. 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.
(18) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess or have made application for such Licenses issued by 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
Licenses to be in full force and effect, singly or in the aggregate, 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 Governmental 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.
(19) Title to Property. The Company and its subsidiaries have good
-----------------
and marketable title or a valid leasehold interest, as the case may be, to all
real property owned or leased
<PAGE>
- 11 -
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 (A) as otherwise stated
in the Registration Statement or the Prospectus or (B) those which would not,
singly or in the aggregate have a Material Adverse Effect.
(20) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the 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 (the "1940 Act").
(21) Environmental Laws. 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, (A) 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"), (B) 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 (C) 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.
(22) Compliance with Cuba Act. 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.
<PAGE>
- 12 -
(23) Registration Rights. 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 1933 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 1933 Act.
(24) Affiliation Agreements. 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.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to the Lead Manager or any
International Manager in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company to each International
Manager as to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to International Managers; Closing.
----------------------------------------------------
(a) Initial International Securities. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each International Manager, severally
and not jointly, and each International Manager, severally and not jointly,
agrees to purchase from the Company, at the price per share set forth in
Schedule B, the number of Initial International Securities set forth in Schedule
A opposite the name of such International Manager, plus any additional number of
Initial International Securities which such International Manager may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) International Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
International Managers, severally and not jointly, to purchase up to an
additional 120,000 shares of Common Stock at the price per share set forth in
<PAGE>
- 13 -
Schedule B. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial International Securities upon notice by the
Global Coordinator to the Company setting forth the number of International
Option Securities as to which the several International Managers are then
exercising the option and the time and date of payment and delivery for such
International Option Securities. Any such time and date of delivery for the
International Option Securities (a "Date of Delivery") shall be determined by
the Global Coordinator, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time,
as hereinafter defined. If the option is exercised as to all or any portion of
the International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Rogers
& Wells, 200 Park Avenue, New York, NY 10166 or at such other place as shall be
agreed upon by the Global Coordinator and the Company, at 10:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Global
Coordinator and the Company (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Manager for the respective
<PAGE>
- 14 -
accounts of the International Managers of certificates for the International
Securities to be purchased by them. It is understood that each International
Manager has authorized the Lead Manager, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial
International Securities and the International Option Securities, if any, which
it has agreed to purchase. The Lead Manager, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the Initial International Securities
or the International Option Securities, if any, to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates, if any, for the
Initial International Securities and the International Option Securities, if
any, shall be in such denominations and registered in such names as the Lead
Manager may request in writing at least two full business day before the Closing
Time or the relevant Date of Delivery, as the case may be. The certificates for
the Initial International Securities and the International Option Securities, if
any, will be made available for examination and packaging by the Lead Manager in
The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3. Covenants of the Company. The Company covenants with the
------------------------
several International Managers in connection with each offering of Securities as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company will file the Prospectus with the Commission pursuant to and in
accordance with Rule 424 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 Manager 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) Filing Amendments. The Company will advise the Lead Manager
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus, will afford The Lead Manager a reasonable opportunity to comment
on any such proposed
<PAGE>
- 15 -
amendment or supplement and will not file any such document to which the Lead
Manager or counsel for the Underwriters reasonably shall 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 1933 Act and the 1933 Act
Regulations; and the Company will also advise the Lead Manager 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) Compliance with Securities Laws. The Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement and the
Prospectus. If, at any time when a Prospectus relating to the Securities is
required to be delivered under the 1933 Act in connection with sales by any
International Manager or dealer, any event occurs as a result of which in the
opinion of counsel to the Company it is necessary 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 1933 Act, the
Company promptly will notify the Lead Manager 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 Manager's consent to, nor the
International Managers' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) Earnings Statement. The Company will timely file all such reports
pursuant to the 1934 Act and the 1934 Act Regulations as are necessary in order
to make generally available to its securityholders as soon as practicable (but
not later than 90 days after the close of the Company's current fiscal year (in
form and in a manner complying with Rule 158 of the 1933 Act Regulations) an
earnings statement in order to satisfy the provisions of Section 11(a) of the
1933 Act.
(e) Delivery of Registration Statements and Prospectuses. The Company
will furnish to the Lead Manager copies of the Registration Statement as
originally filed (including all exhibits thereto), any related preliminary
prospectus, any related
<PAGE>
- 16 -
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 Manager reasonably requests, during the period when the
Prospectus is required to be delivered under the 1933 Act, and the Company
hereby consents to the use of such copies for purposes permitted under the 1933
Act. The Company will pay the expenses of printing and distributing to the
International Managers all such documents, and copies of these documents
furnished to the International Managers will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(f) Blue Sky Qualifications. The Company will use its best efforts to
qualify the Securities for sale under the laws of such jurisdictions as the Lead
Manager 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 charter,
certificate of incorporation, by-laws or other governing documents. In each
jurisdiction in which the 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 Securities.
(g) Delivery of Documents. During the period until three years after
the date of any Terms Agreement, the Company will furnish to the Lead Manager
and, upon request, to each of the other International Managers, 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 Lead Manager (i)
as soon as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the 1934 Act or mailed to
stockholders, and (ii) from time to time, such other information concerning the
Company as the Lead Manager may reasonably request.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the
<PAGE>
- 17 -
1933 Act or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(j) Listing. The Company will use it best efforts to effect the
listing of the Securities, prior to the Closing Time, the Nasdaq National
Market.
(k) Restriction on Sale of Securities. For a period of ninety (90)
days from the Closing Time, the Company will not, without the prior written
consent of the Lead Manager, directly or indirectly, issue, sell or offer to
sell, grant any option for sale of, or otherwise dispose, of Common Stock,
subject to the conditions and exceptions described in Schedule B hereto.
(l) Compliance with NASD Rules. The Company hereby agrees that it
will ensure that the Reserved Securities will be restricted as required by the
NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation
for a period of three months following the date of this Agreement. The U.S.
Underwriters will notify the Company as to which persons will need to be so
restricted. At the request of the U.S. Underwriters, the Company will direct
the transfer agent to place a stop transfer restriction upon such securities for
such period of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including, without limitation, legal
expenses) they incur in connection with such release.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to
performance of its obligations under 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 International
Managers of this Agreement, any Terms Agreement, and any Agreement among
Managers, and such other agreements as may be reasonably required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the Securities and certificates for
the Securities to the International Managers, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the International Managers, (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 Securities under state
securities laws in
<PAGE>
- 18 -
accordance with the provisions of Section 3(f) hereof, 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 International Managers of copies of each preliminary prospectus,
any Term Sheet, and the Prospectus and any amendments or supplements thereto,
(vii) the fees and expenses incurred with respect to the listing of the
Securities, (viii) the filing fees incident to, and the reasonable fees and
disbursements of counsel of the International Managers in connection with, the
review, if any, by the NASD of the terms of the sale of the Securities, (ix) the
fees and expenses of any International Manager acting in the capacity of a
"qualified independent International Manager" (as defined in Section 2(l) of
Schedule E of the bylaws of the NASD), if applicable, and (x) all costs and
expenses of the International Managers, including the reasonable fees and
disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Company for sale
to employees and others having a business relationship with the Company. The
International Managers shall pay any transfer taxes on the Securities which they
may sell, and the expenses of advertising any offering of the Securities made by
the International Managers.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by The Lead Manager in accordance with the provisions of Section 5 or
Section 9(a) hereof, the Company shall reimburse the International Managers for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of International Managers' Obligations. The
-------------------------------------------------
obligations of the International Managers to purchase and pay for the Securities
pursuant to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Prospectus shall
have been filed with the Commission in accordance with the 1933 Act Regulations
and Section 3(a) hereof. The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act, and no stop
order suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or, to
<PAGE>
- 19 -
the knowledge of the Company or any International Manager, 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 the Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424 of the 1933 Act (or any post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b).
(b) Material Adverse Changes. At the Closing Time, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), 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 International Managers including The Lead Manager, 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 Securities; (ii) any suspension or
limitation of trading in securities generally on the Nasdaq National Market
("Nasdaq"), or any setting of minimum prices for trading on Nasdaq, or any
suspension of trading of any securities of the Company on Nasdaq or in the over-
the-counter market; (iii) any banking moratorium declared by U.S. Federal or New
York authorities; or (iv) 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 International Managers including The
Lead Manager, the effect of any such outbreak, escalation, declaration, calamity
or emergency on the financial markets of the United States makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Securities.
(c) Opinion of Counsel for Company. At Closing Time, The Lead Manager
shall have received the favorable opinion, dated as of Closing Time, of Rogers &
Wells, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(1) 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
<PAGE>
- 20 -
and operate its properties and conduct its business as described in the
Prospectus;
(2) 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;
(3) The Securities to be sold by the Company have been duly
authorized the Company for issuance and sale pursuant to this Agreement. The
Securities to be sold by the Company, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration therefor
specified herein, will be validly issued, fully paid and nonassessable and the
issuance of such Securities will not be subject to preemptive or other similar
rights of any security holder of the Company 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. The form of certificate, if any, used to
evidence the Securities will be in due and proper form and complies with the
applicable statutory requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of the Nasdaq
National Market;
(4) 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 (other than rights which have been waived
or suspended) to require the Company to file a registration statement under the
1933 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
<PAGE>
- 21 -
or in any securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act;
(5) 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 this Agreement
in connection with the issuance or sale of the 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 Securities under the 1933 Act, the 1933 Act Regulations,
the 1934 Act, the 1934 Act 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;
(6) The execution, delivery and performance of this Agreement and the
consummation by the Company of such transactions contemplated thereby, and the
issuance and sale of the Securities by the Company 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 statue, 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
Securities to be sold by it as contemplated by this Agreement. Such counsel
expresses no opinion in this Paragraph 6 with respect to (i) 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 (ii) the By-Laws or rules
of the NASD or any state securities laws;
(7) The Registration Statement has become effective under the 1933
Act, the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the 1933 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 1933 Act;
<PAGE>
- 22 -
(8) The Registration Statement relating to the Securities, as of its
effective date, the Prospectus, as of the date hereof, 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 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 1933 Act and
1933 Act Regulations;
(9) The Underwriting Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company; and
(10) 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 is 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.
<PAGE>
- 23 -
(d) Opinion of FCC Counsel. At Closing Time, The Lead Manager shall
have received the favorable opinion, dated as of Closing Time, of Brooks,
Pierce, McLendon, Humphrey & Leonard, special FCC counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to the effect
that:
(1) The execution, delivery and performance of this Agreement will
not result in a violation of the Communications Act or the any order, rule or
regulation of the FCC;
(2) 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 Agreement in connection with the issuance or
sale of the Securities by the Company, except such as have been obtained and
made under the Communications Act or the rules and regulations of the FCC;
(3) 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 broadcast television group (the
"Hearst Broadcast Group") of the Hearst Corporation, a Delaware corporation
("Hearst"), 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;
(4) 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
(5) 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
<PAGE>
- 24 -
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) Opinion of Counsel of Underwriters. At Closing Time, the Lead
Manager shall have received the favorable opinion, dated as of Closing Time, of
Dow, Lohnes & Albertson, PLLC, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the International
Managers, with respect to the incorporation of the Company, the validity of the
Securities, certain matters pertaining to the Registration Statement, the
Prospectus and other related matters as the Lead Manager 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) Officers' Certificate. At Closing Time, the Lead Manager 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 Time, 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
1 are true and correct in all material respects with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the Company has
complied in all material respects with all agreements and satisfied under this
Agreement all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has bee issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(g) Ernst & Young Comfort Letter. At the time of the execution of
this Agreement, the Lead Manager shall have received from Ernst & Young LLP a
letter dated such date, confirming that they are independent public auditors
within the meaning of the Act and the applicable 1933 Act Regulations thereunder
and stating to the effect that:
(1) 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
<PAGE>
- 25 -
accounting requirements of the 1993 Act and the related 1933 Act Regulations;
(2) 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;
(3) 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:
(i) 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 1933 Act and the related 1993 Act Regulations or any
material modifications should be made to such unaudited financial statements for
them to be in conformity with generally accepted accounting principles;
(ii) 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;
(iii) 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 applicable 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
(iv) 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
<PAGE>
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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, or in the total or per share amounts of consolidated
income before extraordinary items;
except in all cases set forth in clauses (iii) and (iv) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur;
(4) 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 Hearst Broadcast Group, 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) Ernst & Young Bring-down Comfort Letter. At Closing Time, the
Lead Manager shall have received from Ernst & Young LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section 5, except that the
specified date referred to shall be a date not more than five business days
prior to the Closing Time.
(i) Deloitte & Touche Comfort Letter. At the time of the execution of
this Agreement, the Lead Manager shall have received from Deloitte & Touche LLP
a letter dated such date, confirming that they are independent public
accountants within the meaning of the 1933 Act and the applicable 1933 Act
Regulations thereunder and stating to the effect that:
(1) 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 1933 Act Regulations;
<PAGE>
- 27 -
(2) 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;
(3) 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:
(i) 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 1933 Act and the related 1933
Act 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;
(ii) if any unaudited pro forma financial information is contained in
the Prospectus, the unaudited pro forma revenues and broadcast cash flows were
not determined on a basis substantially consistent with that of the
corresponding amounts in the unaudited pro forma statements of operations;
(iii) 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 applicable 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
(iv) 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;
<PAGE>
- 28 -
except in all cases set forth in clauses (iii) and (iv) above for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur;
(4) they have compared the disclosure under the caption "Ratio of
Earnings to Fixed Charges" of the Hearst Broadcast Group and of 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
(5) 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
(6) 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.
<PAGE>
- 29 -
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.
(j) Deloitte & Touche Bring-down Comfort Letter. At Closing Time, the
Lead Manager shall have received from Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (i) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(k) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing, subject only to official notice of issuance, on
Nasdaq.
(l) No Objection. If the Registration Statement or an offering of
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.
(m) Lock-up Agreements. On the date of execution of this Agreement,
the Lead Manager shall have received, in form and substance satisfactory to it,
lock-up agreements substantially in the form attached hereto as Exhibit A.
(n) Over-Allotment Option. In the event that the International
Managers exercise their option to purchase all or any portion of the
International Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any of its subsidiaries hereunder shall be true and correct in all
material respects as of each Date of Delivery, and, at the relevant Date of
Delivery, the Lead Manager shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate delivered at
the Closing Time pursuant to Section 5(f) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinions of Rogers & Wells and of Brooks, Pierce,
McLendon, Humphrey & Leonard in form and substance reasonably satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
International Option Securities and otherwise to the same effect as the opinions
required by Sections 5(c) and 5(d) hereof, respectively.
<PAGE>
- 30 -
(3) The favorable opinion of Dow, Lohnes & Albertson, PLLC, counsel
for the Underwriters, dated such Date of Delivery, relating to the International
Option Securities and otherwise to the same effect as the opinion required by
Section 5(e) hereof.
(4) A letter from Ernst & Young LLP, in form and substance reasonably
satisfactory to the Lead Manager and dated such Date of Delivery, substantially
in the same form and substance as a letter furnished to the Lead Manager
pursuant to Section 5(g) hereof, except that the "specified date" on the letter
furnished pursuant to this paragraph shall be a date no more than three business
days prior to such Date of Delivery.
(5) A letter from Deloitte & Touche LLP, in form and substance
reasonably satisfactory to The Lead Manager and dated such Date of Delivery,
substantially in the same form and substance as a letter furnished to The Lead
Manager pursuant to Section 5(j) hereof, except that the "specified date" on the
letter furnished pursuant to this paragraph shall be a date no more than three
business days prior to such Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they reasonably may require for the purpose of
enabling them to pass upon the issuance and sale of the 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 Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Lead Manager and counsel for the Underwriters.
(p) Termination of This Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when as required to be fulfilled, this
Agreement (or, with respect to the International Managers' exercise of any
applicable over-allotment option for the purchase of International Option
Securities on a Date of Delivery after the Closing Time, the obligations of the
International Managers to purchase the International Option Securities on such
Date of Delivery) may be terminated by the Lead Manager by notice to the Company
at any time or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except Sections 6 and 7 shall
survive any such termination and remain in full force and effect.
<PAGE>
- 31 -
SECTION 6. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each International Manager and each person, if any who
controls any International Manager within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(1) 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 the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, 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;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable laws
or regulations of foreign jurisdictions where Reserved Securities have been
offered and (B) any untrue statement or alleged untrue statement of a material
fact included in the Prospectus or preliminary prospectus distributed in
connection with the reservation and sale of the Reserved Securities to certain
directors, officers, employees and other persons associated with the Company of
the Hearst Corporation or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, when considered in
conjunction with the Prospectus or preliminary prospectus, not misleading;
(3) 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 Sections 6(a)(1) or 6(a)(2) hereof;
provided that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(4) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of counsel chosen by The Lead Manager), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
<PAGE>
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threatened, or any claim whatsoever for which indemnification is provided under
Section 6(a)(1), 6(a)(2) or 6(a)(3) hereof to the extent that any such expense
is not paid under (1), (2) or (3) 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
International Manager through the Lead Manager expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, 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 International Manager consists of the information
described in the applicable Terms Agreement; provided, further, that the Company
-------- -------
will not be liable to the International Managers or any person controlling such
International Managers 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 International Manager sold securities to a person to whom such
International Manager 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 International Managers (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 3(b) and 3(c) hereof, and the loss, liability,
claim, damage or expense of the International Managers 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) Indemnification of Company, Directors and Officers. Each
International Manager severally and not jointly agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement
<PAGE>
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(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be part thereof, 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 International Manager through the Lead Manager expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. 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
Manager, 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
<PAGE>
- 34 -
Section 6 or Section 7 hereof (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.
(d) Settlement without Consent if Failure to Reimburse. 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)(3) 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.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the International Managers
from and against any and all losses, liabilities, claims, damages and expenses
incurred by them as a result of the failure of certain directors, officers,
employees and other persons associated with the Company or The Hearst
Corporation to pay for and accept delivery of Reserved Securities which, by the
end of the first business day following the date of this Agreement, were subject
to a properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof 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 International Managers, on the other hand, from
the offering of the Securities pursuant to this 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 International Managers, on the other hand, in connection with
the statements or omissions, or any violation of the nature referred to in
Section 6(a)(1) hereof,
<PAGE>
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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
International Managers, on the other hand, in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
underwriting discount received by the International Managers, in each case as
set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of such Securities as set forth on such cover or Term Sheet.
The relative fault of the Company on the one hand, and the International
Managers, 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 International Managers, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, or any violation of the nature referred to
in Section 6(a)(1) hereof.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers 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 Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 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 Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
International Manager has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
<PAGE>
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No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A, and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any International
Manager or controlling person, or by or on behalf of the Company, and shall
survive delivery of and payment for the Securities.
SECTION 9. Termination.
-----------
(a) General. The Lead Manager may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Time or any relevant Date
of Delivery, if, since the respective dates as of which information is given in
the Prospectus, there shall have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or other), or
the earnings, business affairs, business prospects, 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 International Managers including The Lead
Manager, 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 Securities; (ii) any suspension or limitation of trading in securities
generally on the Nasdaq, or any setting of minimum prices for trading on Nasdaq,
or any suspension of trading of any securities of the Company on Nasdaq or in
the over-the-counter market; (iii) any banking moratorium declared by U.S.
Federal or New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or
<PAGE>
- 37 -
any other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the International Managers including the
Lead Manager, the effect of any such outbreak, escalation, declaration, calamity
or emergency on the financial markets of the United States makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If
----------------------------------------------------
one or more of the International Managers shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Lead Manager shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
International Managers, or any other Underwriter, to purchase all, but not less
than all, of the Defaulting Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Lead Manager shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, the non-
defaulting International Managers shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations bear to the underwriting obligations of all non-
defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date (or, with respect to the
International Managers' exercise of any applicable over-allotment option for the
purchase of International Option Securities on a Date of Delivery after the
Closing Time, the obligations of the International Managers to purchase, and the
Company to sell, such International Option Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
International Manager.
No action taken pursuant to this Section 10 shall relieve any defaulting
International Manager from liability in respect of its default.
<PAGE>
- 38 -
In the event of any such default which does not result in (i) a termination
of this Agreement or (ii) in the case of a Date of Delivery after the Closing
Time, a termination of the obligations of the International Managers and the
Company with respect to the related International Option Securities, as the case
may be, either the Lead Manager or the Company shall have the right to postpone
the Closing Time or the relevant Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be given in writing and shall be deemed to be given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Manager at North Tower,
World Financial Center, New York, New York 10281-1021.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Company, the Lead Manager and any other International
Managers and their respective successors. Nothing expressed or mentioned in
this Agreement or is intended or shall be construed to give any person, firm or
corporation, other than the International Managers and the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provision hereof are intended to be for the sole and exclusive benefit of the
parties hereto 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 Securities
from any International Manager shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS 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 this Agreement or the transactions
contemplated hereby.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
are for convenience only and shall not affect the construction hereof.
<PAGE>
- 39 -
SECTION 15. Representation of International Managers. The Lead Manager
----------------------------------------
will act for the several International Managers in connection with the financing
described in this Agreement, and any action under this Agreement taken by the
Lead Manager will be binding upon all the International Managers.
SECTION 16. Counterparts. This 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.
<PAGE>
If the foregoing is in accordance with your understanding or our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Agreement, along with all counterparts, will become a binding agreement between
The Lead Manager and the Company in accordance with its terms.
Very truly yours,
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
-----------------------------
Name: Dean H. Blythe
Title: Senior Vice President/
Corporate Development,
General Counsel and
Secretary
CONFIRMED AND ACCEPTED,
as of the first
above written:
MERRILL LYNCH INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
J.P. MORGAN SECURITIES LTD.
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
NESBITT BURNS SECURITIES INC.
By: Merrill Lynch International
By: /s/ Palma Mazzolla
---------------------------
Authorized Signatory
<PAGE>
Schedule A
----------
Number of
Shares of
Series A
International Manager Common Stock
- --------------------- ------------
Merrill Lynch International ............................ 180,000
Credit Suisse First Boston (Europe) Limited ............ 180,000
J.P. Morgan Securities Ltd. ............................ 180,000
Morgan Stanley & Co. International Limited.............. 180,000
Nesbitt Burns Securities Inc. .......................... 80,000
--------
800,000
========
<PAGE>
Schedule B
----------
Number of Initial International Securities
offered by the Company: 800,000
Number of International Option Securities: 120,000
Initial public offering price per share: $ 27.00
Purchase price per share: $ 25.79
Black-out provisions:
- --------------------
Ninety (90) days from the Closing Time for the Company black-out period in
Section 3(k) of this Agreement. Exceptions: (1) with the prior written consent
of Merrill Lynch and (2) (A) the issuance of Series B Common Stock by the
Company, (B) the issuance of shares of Series A Common Stock by the Company in
connection with acquisition transactions in which recipients of such shares are
restricted from selling such shares until the expiration of 90 days from the
date of this Agreement, (C) upon the exercise of outstanding options or the
grant of options under the Company's stock option plans or compensation
arrangements, and (D) upon the conversion of the Company's Series A Preferred
Stock.
<PAGE>
Exhibit A
---------
Lock-Up Agreements
<PAGE>
November , 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
on behalf of the U.S. Underwriters
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281
Merrill Lynch International
on behalf of the International Underwriters
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Dear Sirs:
The undersigned understand that Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and certain other underwriters (the "U.S.
Underwriters") propose to enter into a purchase agreement (the "U.S. Purchase
Agreement") with Hearst-Argyle Television, Inc., a Delaware corporation (the
"Company"), providing for the public offering in the United States and Canada by
the U.S. Underwriters of Series A Common Stock of the Company, par value $.01
per share (the "Series A Common Stock")and that Merrill Lynch International and
certain other underwriters (the "International Underwriters" and together with
the U.S. Underwriters, the "Underwriters") propose to enter into a purchase
agreement (the "International Underwriting Agreement" and, together with the
U.S. Purchase Agreement, the "Underwriting Agreements") with the Company,
providing for the public offering outside the United States and Canada of by the
International Underwriters of Series A Common Stock.
In consideration of the Underwriters' agreement to purchase and undertake
the public offering of the Series A Common Stock, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
agrees that, without the prior written consent of Merrill Lynch on behalf of the
Underwriters, the undersigned will not (i) offer to sell, sell, distribute,
grant any option to purchase or otherwise dispose of directly or indirectly, any
shares of Series A Common Stock or any securities convertible into, or
exercisable or exchangeable for, Series A Common Stock, or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the
<PAGE>
- 2 -
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise prior to the expiration of 90 days from the date of the final
Prospectus relating to the public offering, except, in the case of directors and
executive officers of the Company, for exercise by such individuals of
outstanding options.
The undersigned understand that the Company and the Underwriters will
proceed with the public offering in reliance on this letter agreement.
In furtherance of the foregoing, the Company is hereby authorized to direct
its transfer agent to decline to make any transfer of Series A Common Stock or
other securities if such transfer would constitute a violation or breach of this
letter agreement.
The undersigned hereby represent and warrant that the undersigned has full
power and authority to enter into this letter agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity, or
the liquidation, bankruptcy or dissolution, of the undersigned, and any
obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, transferees, and assigns of the undersigned.
This letter agreement shall become effective as of the time the
Underwriting Agreements and any applicable Terms Agreement thereto are executed
and delivered by the parties thereto.
<PAGE>
- 3 -
This letter agreement may be executed in counterparts and each fully
executed counterpart shall be deemed to be an original.
Very truly yours,
______________________________
Bob Marbut
______________________________
John Conomikes
______________________________
David J. Barrett
______________________________
Anthony J. Vinciquerra
______________________________
Dean H. Blythe
______________________________
Harry T. Hawks
______________________________
Ibra Morales
______________________________
Frank A. Bennack, Jr.
______________________________
Victor F. Ganzi
______________________________
William R. Hearst III
______________________________
George R. Hearst III
______________________________
Gilbert C. Maurer
<PAGE>
- 4 -
______________________________
David Pulver
______________________________
Virginia H. Randt
______________________________
Caroline L. Williams
Acceptable as of the date
first set forth above:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: __________________________
Name:_____________________
Title: ___________________
Merrill Lynch International
By: __________________________
Name: ____________________
Title: ___________________
<PAGE>
November , 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
on behalf of the U.S. Underwriters
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281
Merrill Lynch International
on behalf of the International Underwriters
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Dear Sirs:
The undersigned understand that Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and certain other underwriters (the "U.S.
Underwriters") propose to enter into a purchase agreement (the "U.S. Purchase
Agreement") with Hearst-Argyle Television, Inc., a Delaware corporation (the
"Company"), providing for the public offering in the United States and Canada by
the U.S. Underwriters of Series A Common Stock of the Company, par value $.01
per share (the "Series A Common Stock")and that Merrill Lynch International and
certain other underwriters (the "International Underwriters" and together with
the U.S. Underwriters, the "Underwriters") propose to enter into a purchase
agreement (the "International Underwriting Agreement" and, together with the
U.S. Purchase Agreement, the "Underwriting Agreements") with the Company,
providing for the public offering outside the United States and Canada of by the
International Underwriters of Series A Common Stock.
In consideration of the Underwriters' agreement to purchase and undertake
the public offering of the Series A Common Stock, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
agrees that, without the prior written consent of Merrill Lynch on behalf of the
Underwriters, the undersigned will not (i) offer to sell, sell, distribute,
grant any option to purchase or otherwise dispose of directly or indirectly, any
shares of Series A Common Stock or any securities convertible into, or
exercisable or exchangeable for, Series A Common Stock, or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common
<PAGE>
- 2 -
Stock or other securities, in cash or otherwise prior to the expiration of 90
days from the date of the final Prospectus relating to the public offering.
The undersigned understands that the Company and the Underwriters will
proceed with the public offering in reliance on this letter agreement.
In furtherance of the foregoing, the Company is hereby authorized to direct
its transfer agent to decline to make any transfer of Series A Common Stock or
other securities if such transfer would constitute a violation or breach of this
letter agreement.
The undersigned hereby represent and warrant that the undersigned have full
power and authority to enter into this letter agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity, or
the liquidation, bankruptcy or dissolution, of the undersigned, and any
obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, transferees, and assigns of the undersigned.
This letter agreement shall become effective as of the time the
Underwriting Agreements and any applicable Terms Agreement thereto are executed
and delivered by the parties thereto.
<PAGE>
- 3 -
This letter agreement may be executed in counterparts and each fully
executed counterpart shall be deemed to be an original.
Very truly yours,
______________________________
Blake Byrne
CHASE MANHATTAN INVESTMENT HOLDINGS, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
MERCHANT GP, INC.
By:_____________________________
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
<PAGE>
- 4 -
CREDIT SUISSE FIRST BOSTON FUND
INVESTMENTS 1995, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON FUND
INVESTMENTS 1994, L.P.
By:___________________________
as General Partner
By:______________________
Name:
Title:
Acceptable as of the date
first set forth above:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: __________________________
Name:_____________________
Title: ___________________
Merrill Lynch International
By: __________________________
Name: ____________________
Title: ___________________
<PAGE>
November , 1997
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
on behalf of the U.S. Underwriters
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281
Merrill Lynch International
on behalf of the International Underwriters
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Dear Sirs:
The undersigned understands that Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and certain other underwriters (the "U.S.
Underwriters") propose to enter into a purchase agreement (the "U.S. Purchase
Agreement") with Hearst-Argyle Television, Inc., a Delaware corporation (the
"Company"), providing for the public offering in the United States and Canada by
the U.S. Underwriters of Series A Common Stock of the Company, par value $.01
per share (the "Series A Common Stock")and that Merrill Lynch International and
certain other underwriters (the "International Underwriters" and together with
the U.S. Underwriters, the "Underwriters") propose to enter into a purchase
agreement (the "International Underwriting Agreement" and, together with the
U.S. Purchase Agreement, the "Underwriting Agreements") with the Company,
providing for the public offering outside the United States and Canada of by the
International Underwriters of Series A Common Stock.
In consideration of the Underwriters' agreement to purchase and undertake
the public offering of the Series A Common Stock, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
agrees that, without the prior written consent of Merrill Lynch on behalf of the
Underwriters, the undersigned will not (i) offer to sell, sell, distribute,
grant any option to purchase or otherwise dispose of directly or indirectly, any
shares of Series A Common Stock or any securities convertible into, or
exercisable or exchangeable for, Series A Common Stock, or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common
<PAGE>
- 2 -
Stock or other securities, in cash or otherwise prior to the expiration of 90
days from the date of the final Prospectus relating to the public offering.
The undersigned understands that the Company and ,will proceed with the
public offering in reliance on this letter agreement.
In furtherance of the foregoing, the Company is hereby authorized to direct
its transfer agent to decline to make any transfer of Series A Common Stock or
other securities if such transfer would constitute a violation or breach of this
letter agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement. All authority
herein conferred or agreed to be conferred shall survive the death or
incapacity, or the liquidation, bankruptcy or dissolution, of the undersigned,
and any obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, transferees, and assigns of the undersigned.
This letter agreement shall become effective as of the time the
Underwriting Agreements and any applicable Terms Agreement thereto are executed
and delivered by the parties thereto.
<PAGE>
- 3 -
This letter agreement may be executed in counterparts and each fully
executed counterpart shall be deemed to be an original.
Very truly yours,
THE HEARST CORPORATION
By:________________________________
Name:
Title:
Acceptable as of the date
first set forth above:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: __________________________
Name:_____________________
Title: ___________________
Merrill Lynch International
By: __________________________
Name: ____________________
Title: ___________________
<PAGE>
EXHIBIT 1.4
HEARST-ARGYLE TELEVISION, INC.
(a Delaware corporation)
Series A Common Stock
TERMS AGREEMENT
---------------
November 5, 1997
Hearst-Argyle Television, Inc.
888 Seventh Avenue
New York, New York 10106
Ladies and Gentlemen:
Hearst Argyle Television Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other Underwriters named below
(collectively, the "U.S. Underwriters") for which Merrill Lynch, Credit Suisse
First Boston Corporation, J.P. Morgan Securities Inc. and Morgan Stanley & Co.
Incorporated are acting as representatives, and the U.S. Underwriters hereby
confirm their respective agreements with the Company, with respect to (i) the
sale to the U.S. Underwriters by the Company of the respective numbers of shares
of Series A Common Stock, par value $.01 per share, of the Company ("Series A
Common Stock") set forth below; (ii) the purchase by the U.S. Underwriters,
acting severally and not jointly, of the respective numbers of shares of Series
A Common Stock set forth opposite its name below, and (iii) the grant by the
Company to the U.S. Underwriters, acting severally and not jointly, of the
option to purchase all or any part of 480,000 additional shares of Series A
Common Stock to cover over-allotments, if any. The aggregate 3,200,000 shares
of Series A Common Stock (the "Initial U.S. Securities") to be purchased by the
U.S. Underwriters and all or any part of the 480,000 shares of Series A Common
Stock subject to the option (the "U.S. Option Securities") are hereinafter
called, collectively, the "U.S. Securities." We also understand that the
Company proposes to reserve 200,000 shares of Initial U.S. Securities for sale
by the U.S. Underwriters to certain directors, officers, employees and other
persons associated with the Company or the Hearst Corporation. This Terms
Agreement and the related purchase agreement attached hereto as Annex I are
collectively referred to as the "U.S. Purchase Agreement."
<PAGE>
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement" and,
together with the U.S. Purchase Agreement, the "Underwriting Agreements")
providing for the offering by the Company of an aggregate of 800,000 shares of
Series A Common Stock (the "Initial International Securities") through
arrangements with certain underwriters outside the United States and Canada (the
"International Underwriters" and, collectively with the U.S. Underwriters, the
"Underwriters") for which Merrill Lynch International, Credit Suisse First
Boston (Europe) Limited, J.P. Morgan Securities Ltd., Morgan Stanley & Co.
International Limited and Nesbitt Burns Securities Inc. are acting as managers,
and the grant by the Company to the International Underwriters, acting severally
and not jointly, of an option to purchase all or any part of the International
Underwriters' pro rata portion of up to 120,000 additional shares of Series A
Common Stock solely to cover over-allotments, if any (the "International Option
Securities"). It is understood that the Company is not obligated to sell and
the Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all of the Initial International Securities are contemporaneously
purchased by the International Underwriters.
The U.S. Underwriters and the International Underwriters will concurrently
enter into an Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of certain
transactions among the Underwriters under the direction of Merrill Lynch (in
such capacity, the "Global Coordinator").
Number of
Initial
U.S.
U.S. Underwriters Securities
- ----------------------------------------- ----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 545,000
Credit Suisse First Boston Corporation 545,000
J.P. Morgan Securities Inc. 545,000
Morgan Stanley & Co. Incorporated 545,000
Bear, Stearns & Co. Inc. 60,000
BT Alex. Brown Incorporated 60,000
Donaldson, Lufkin & Jenrette Securities
Corporation 60,000
A.G. Edwards & Sons, Inc. 60,000
Furman Selz LLC 60,000
Goldman, Sachs & Co. 60,000
Lazard Freres & Co. LLC 60,000
Lehman Brothers Inc. 60,000
NationsBanc Montgomery Securities, Inc. 60,000
2
<PAGE>
Number of
Initial
U.S.
U.S. Underwriters Securities
- ----------------------------------------- ----------
Paine Webber Incorporated 60,000
Prudential Securities Incorporated 60,000
Salomon Brothers Inc. 60,000
Schroder & Co. Inc. 60,000
Smith Barney Inc. 60,000
Southwest Securities, Inc. 60,000
Wasserstein Perella Securities, Inc. 60,000
Arneson, Kercheville, Ehrenberg &
Associates, Inc. 30,000
Gabelli & Company, Inc. 30,000
---------
Total 3,200,000
=========
The U.S. Securities shall have the following terms:
Series A Common Stock
---------------------
Number of Initial U.S. Securities
offered by the Company: 3,200,000
Number of U.S. Option Securities: 480,000
Initial public offering price per share: $ 27.00
Purchase price per share: $ 25.79
Listing requirements: Nasdaq National Market
Black-out Provisions
--------------------
Ninety (90) days from the Closing Time for the Company black-out period in
section 3(k) of the U.S. Underwriting Agreement. Exceptions: (1) with the
prior written consent of Merrill Lynch and (2) (A) the issuance of Series B
Common Stock by the Company, (B) the issuance of shares of Series A Common Stock
by the Company in connection with acquisition transactions in which recipients
of such shares are restricted from selling such shares until the expiration of
90 days from the date of this Terms Agreement, (C) upon the exercise of
outstanding options or the grant of options under the Company's stock option
plans or compensation arrangements, and (D) upon the conversion of the Company's
Series A Preferred Stock.
3
<PAGE>
Lock-up
-------
Ninety (90) days from the date of this Terms Agreement with respect to each
of the following individuals/entities: Exceptions: (1) with the prior written
consent of Merrill Lynch and (2) in the case of directors and officers of the
Company, for the exercise by such individuals of outstanding options.
Bob Marbut
John Conomikes
David J. Barrett
Anthony J. Vinciquerra
Dean H. Blythe
Harry T. Hawks
Ibra Morales
Frank A. Bennack, Jr.
Victor F. Ganzi
William R. Hearst III
George R. Hearst III
Gilbert C. Maurer
David Pulver
Virginia H. Randt
Caroline L. Williams
Blake Byrne
Chase Manhattan Investment Holdings, L.P.
Merchant GP, Inc.
Crescent/Mach I Partners, L.P.
Credit Suisse First Boston Fund Investments 1995, L.P.
Credit Suisse First Boston Fund Investments 1994, L.P.
The Hearst Corporation
Closing date and location: November 12, 1997;
Rogers & Wells
200 Park Avenue
New York, New York 10166
Notices to the Underwriters shall be directed to Merrill Lynch, and
notices to the Company shall be directed to it at 888 Seventh Avenue, New York,
New York 10106, attention of Dean H. Blythe.
All of the provisions contained in the document attached as Annex I hereto
entitled "HEARST-ARGYLE TELEVISION, INC.--Series A Common Stock--Purchase
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein.
For purposes of Sections 6 and 7 of the Underwriting Agreements, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following information: (i) the last paragraph at the
bottom of the
4
<PAGE>
A-5
prospectus supplement cover page concerning the terms of the offering by the
Underwriters; (ii) the legends concerning over-allotments and stabilizing and
passive market-making on the inside front cover page of the prospectus
supplement; (iii) all paragraphs and tabular information under the caption
"Underwriting" in the prospectus supplement, except for the first, second,
third, sixth, seventh, eighth and ninth paragraphs thereunder; and (iv) the
names of the Underwriters contained on the cover page and on the back cover page
of the prospectus supplement.
Please accept this offer no later than five o'clock P.M. (New York City
time) on Wednesday, November 5, 1997, by signing a copy of this Terms Agreement
in the space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By /s/ Palma Mazzolla
---------------------------------
Authorized Signatory
Acting on behalf of itself and
the other U.S. Underwriters.
Accepted:
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
---------------------------
Name: Dean H. Blythe
Title: Senior Vice President/
Corporate Development
General Counsel and
Secretary
<PAGE>
EXHIBIT 1.5
HEARST-ARGYLE TELEVISION, INC.
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
November 5, 1997
To: Credit Suisse First Boston Corporation,
as Representative of the Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, and the Underwriters agree to
purchase, on and subject to the terms and conditions of the Underwriting
Agreement dated November 5, 1997 and to be filed as an exhibit to a current
report on Form 8-K (the "Underwriting Agreement"), the following securities (the
"Offered Securities") on the following terms:
TITLE: 7% Senior Notes Due 2007 (the "2007 Notes"); 7 1/2% Debentures Due
2027 (the "2027 Debentures").
PRINCIPAL AMOUNT: $125,000,000; $175,000,000.
INTEREST: 7% and 7 1/2% per annum, from November 13, 1997, payable
semiannually on May 15 and November 15, commencing May 15, 1998, to holders of
record on the preceding May 1 or November 1, as the case may be.
MATURITY: November 15, 2007; November 15, 2027.
OPTIONAL REDEMPTION: The 2007 Notes and the 2027 Debentures will be
redeemable as a whole or in part, at the option of the Company at any time, at a
redemption price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Yield plus 15 basis points in the case of the 2007 Notes and 25
basis points in the case of the 2027 Debentures, plus in the case of each of
clauses (i) and (ii) accrued interest to the date of redemption.
<PAGE>
SINKING FUND: None.
LISTING: None.
DELAYED DELIVERY CONTRACTS: None.
DENOMINATIONS: $1,000
RATING: Baa3/BBB-
RANK: The 2007 Notes and the 2027 Debentures will be unsubordinated and
unsecured obligations of the Company ranking parri passu with all existing and
future unsubordinated and unsecured obligations of the Company.
PURCHASE PRICE: 98.966% and 97.948% of principal amount, plus accrued
interest, if any, from November 13, 1997.
EXPECTED REOFFERING PRICE: 99.616% and 98.823% of principal amount,
subject to change by the Representative.
CLOSING: 9:00 A.M. on November 13, 1997, at Rogers & Wells, 200 Park
Avenue, New York, NY 10166, in Federal (same day) funds.
SETTLEMENT AND TRADING: Book-Entry Only via DTC. The Offered Securities
will trade in DTC's Same Day Funds Settlement System.
BLACKOUT: None.
NAME AND ADDRESS OF REPRESENTATIVE: Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, NY 10010.
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following information in the Prospectus: (i) the
last paragraph at the bottom of the prospectus supplement cover page concerning
the terms of the offering by the Underwriters; (ii) the legend concerning over-
allotments and stabilizing on the inside front cover page of the prospectus
supplement; (iii) all paragraphs and tabular information under the caption
"Underwriting" in the prospectus supplement, except for the first, second
and fifth paragraphs thereunder; (iv) the disclosure under the caption "Notice
to Canadian Residents"in
T-2
<PAGE>
the prospectus supplement; and (v) the names of the Underwriters contained on
the cover page and on the back coverage of the prospectus supplement.
T-3
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Joseph Fashano
-----------------------------------------------
Title: Director
Acting on behalf of itself and as the
Representative of the several Underwriters.
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
-----------------------------------------
Title: Senior Vice President/Corporate
Development, General Counsel and Secretary
T-4
<PAGE>
SCHEDULE A
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
2007 2027
UNDERWRITER DEBENTURES DEBENTURES
----------- ---------- ----------
Credit Suisse First Boston Corporation ...... $ 43,750,000 $ 61,250,000
J.P. Morgan Securities Inc. ................. 43,750,000 61,250,000
Merrill Lynch, Pierce, Fenner & Smith,
Incorporated ................ 37,500,000 52,500,000
------------ ------------
Total .................................... $125,000,000 $175,000,000
============ ============
T-5
<PAGE>
EXHIBIT 4.1
=================================================================
HEARST-ARGYLE TELEVISION, INC.
AND
BANK OF MONTREAL TRUST COMPANY,
TRUSTEE
_______________________________________
FORM OF
INDENTURE
DATED AS OF NOVEMBER 13, 1997
_______________________________________
=================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Certain Terms Defined...................................... 1
SECTION 1.2 Compliance Certificates and Opinions....................... 9
SECTION 1.3 Form of Documents Delivered to Trustee..................... 9
SECTION 1.4 Acts of Holders............................................ 10
SECTION 1.5 Notices, Etc., to Trustee and Company...................... 11
SECTION 1.6 Notice to Holders; Waiver.................................. 12
SECTION 1.7 Conflict with Trust Indenture Act.......................... 13
SECTION 1.8 Effect of Headings and Table of Contents................... 13
SECTION 1.9 Successors and Assigns..................................... 13
SECTION 1.10 Separability Clause........................................ 13
SECTION 1.11 Benefits of Indenture...................................... 13
SECTION 1.12 Governing Law.............................................. 13
SECTION 1.13 Legal Holidays............................................. 13
SECTION 1.14 Incorporators, Stockholders, Officers and
Directors Exempt from Individual Liability................. 14
SECTION 1.15 Counterparts............................................... 14
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally............................................ 14
SECTION 2.2 Form of Trustee's Certificate of Authentication............ 15
SECTION 2.3 Securities Issuable in the Form of a Global Security....... 15
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series....................... 19
SECTION 3.2 Denominations.............................................. 22
SECTION 3.3 Execution, Authentication, Delivery and Dating............. 22
SECTION 3.4 Temporary Securities....................................... 24
SECTION 3.5 Registration; Registration of Transfer and Exchange........ 25
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities........... 26
SECTION 3.7 Payment of Interest; Interest Rights Preserved............. 27
SECTION 3.8 Persons Deemed Owners...................................... 27
SECTION 3.9 Cancellation............................................... 28
SECTION 3.10 Computation of Interest.................................... 28
SECTION 3.11 Currency of Payments in Respect of Securities.............. 28
SECTION 3.12 Judgments.................................................. 29
<PAGE>
Page
----
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.................... 29
SECTION 4.2 Application of Trust Money................................. 31
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.......................................... 31
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment......... 33
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee..................................... 35
SECTION 5.4 Trustee May File Proofs of Claim........................... 36
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities.............................................. 37
SECTION 5.6 Application of Money Collected............................. 37
SECTION 5.7 Limitation on Suits........................................ 37
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest........................... 38
SECTION 5.9 Restoration of Rights and Remedies......................... 38
SECTION 5.10 Rights and Remedies Cumulative............................. 39
SECTION 5.11 Delay or Omission Not Waiver............................... 39
SECTION 5.12 Control by Holders......................................... 39
SECTION 5.13 Waiver of Past Defaults.................................... 40
SECTION 5.14 Undertaking for Costs...................................... 40
SECTION 5.15 Waiver of Stay or Extension Laws........................... 40
SECTION 5.16 Duty to Accelerate......................................... 41
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities........................ 41
SECTION 6.2 Notice of Defaults......................................... 42
SECTION 6.3 Certain Rights of Trustee.................................. 43
SECTION 6.4 Not Responsible for Recitals or Issuance of
Securities................................................. 44
SECTION 6.5 May Hold Securities........................................ 44
SECTION 6.6 Money Held in Trust........................................ 44
SECTION 6.7 Compensation and Reimbursement............................. 45
SECTION 6.8 Disqualification; Conflicting Interests.................... 45
SECTION 6.9 Corporate Trustee Required; Eligibility.................... 45
SECTION 6.10 Resignation and Removal; Appointment of
Successor.................................................. 46
SECTION 6.11 Acceptance of Appointment by Successor..................... 48
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business................................................... 49
SECTION 6.13 Preferential Collection of Claims Against
Company.................................................... 49
SECTION 6.14 Appointment of Authenticating Agent........................ 50
<PAGE>
Page
----
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of
Holders.................................................... 52
SECTION 7.2 Preservation of Information; Communications to
Holders.................................................... 52
SECTION 7.3 Reports by Trustee......................................... 54
SECTION 7.4 Reports by Company......................................... 55
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms....... 56
SECTION 8.2 Successor Corporation Substituted.......................... 57
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of
Holders.................................................... 57
SECTION 9.2 Supplemental Indentures with Consent of
Holders.................................................... 58
SECTION 9.3 Execution of Supplemental Indentures....................... 59
SECTION 9.4 Effect of Supplemental Indentures.......................... 60
SECTION 9.5 Conformity with Trust Indenture Act........................ 60
SECTION 9.6 Reference in Securities to Supplemental
Indentures................................................. 60
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest................. 60
SECTION 10.2 Maintenance of Office or Agency............................ 60
SECTION 10.3 Money for Securities Payments To Be Held in
Trust...................................................... 61
SECTION 10.4 Corporate Existence........................................ 62
SECTION 10.5 Maintenance of Properties.................................. 63
SECTION 10.6 Payment of Taxes and Other Claims.......................... 63
SECTION 10.7 Limitation on Indebtedness Secured by a
Mortgage................................................... 63
SECTION 10.8 Limitation on Sale and Lease-Back.......................... 65
SECTION 10.9 Statement as to Compliance................................. 66
SECTION 10.10 Waiver of Certain Covenants................................ 66
SECTION 10.11 Designated Subsidiaries.................................... 67
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article................................... 68
<PAGE>
Page
----
SECTION 11.2 Election to Redeem; Notice to Trustee...................... 68
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed................................................... 68
SECTION 11.4 Notice of Redemption....................................... 69
SECTION 11.5 Deposit of Redemption Price................................ 69
SECTION 11.6 Securities Payable on Redemption Date...................... 70
SECTION 11.7 Securities Redeemed in Part................................ 70
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article................................... 70
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities................................................. 71
SECTION 12.3 Redemption of Securities for Sinking Fund.................. 71
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article................................... 72
SECTION 13.2 Defeasance upon Deposit of Moneys or U.S.
Government Obligations..................................... 72
SECTION 13.3 Deposited Moneys and U.S. Government Obligations
to Be Held in Trust........................................ 74
SECTION 13.4 Reinstatement.............................................. 74
SECTION 13.5 Repayment to Company....................................... 75
- --------------------------------------------------------------------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
INDENTURE
THIS INDENTURE, is dated as of November 13, 1997 between Hearst-Argyle
Television, Inc., a Delaware corporation (herein called the "Company"), and Bank
of Montreal Trust Company, a New York banking corporation (herein called the
"Trustee").
RECITALS:
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein collectively called
the "Securities" or in the singular, a "Security"), to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Certain Terms Defined.
---------------------
For all purposes of this Indenture and any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein as of the date of this Indenture;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted
<PAGE>
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means, with respect to the Securities of any series,
any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of such series.
"Board of Directors" means either the board of directors of the Company or
a duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of New York, State
of New York, are authorized or obligated by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of
2
<PAGE>
this Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Subsidiary" means at any date any Subsidiary the accounts of
which are consolidated with those of the Company as of such date for public
financial reporting purposes.
"Consolidated Net Tangible Assets" has the meaning specified in Section
10.7.
"Corporate Trust Office" means the principal office of the Trustee in the
Borough of Manhattan, The City of New York at which at any particular time its
corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at Wall Street Plaza, 88 Pine Street, New
York, New York 10005.
"Corporation" includes corporations, associations, business trusts, joint-
stock companies, limited liability companies, joint ventures, general
partnerships and limited partnerships.
"Currency" means Dollars or Foreign Currency.
"Depository" means unless otherwise specified by the Company pursuant to
either Sections 2.3 or 3.1, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under Section 17A of
the Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
"Designated Subsidiary" has the meaning specified in Section 10.11.
"Discharged" has the meaning specified in Section 13.2.
"Dollar" or "$" means the currency of the United States that at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
3
<PAGE>
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Fixed Rate Security" means a Security which provides for the payment of
interest at a fixed rate.
"Floating Rate Security" means a Security which provides for the payment of
interest at a variable rate determined periodically by reference to an interest
rate index specified pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"Funded Debt" has the meaning specified in Section 10.8.
"Global Security" means a Security issued to evidence all or a part of any
series of Securities which is executed by the Company and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered as to principal and interest in the name of the
Depository or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" has the meaning specified in Section 10.7.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 3.1.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal or, in the case of
an Original Issue Discount Security, the principal amount payable upon a
declaration of acceleration pursuant to Section 5.2, becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 10.7.
4
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount" shall have the same meaning as such term is given
in Section 1273 of the Internal Revenue Code of 1986, as amended, or any
successor provision thereto.
"Original Issue Discount Security" means (i) any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
the declaration of acceleration of the Maturity thereof pursuant to Section 5.2,
and (ii) any other Security deemed an Original Issue Discount Security for
United States Federal income tax purposes.
"Outstanding", when used with respect to Securities or any series of
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
5
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (a) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 5.2; (b)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, then the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined
as contemplated by Section 3.1; (c) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 3.1, of the
principal amount of such Security, (or, in the case of a Security described in
clause (a) or (b) above, of the amount determined as provided in such clause);
and (d) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
6
<PAGE>
"Principal Property" means any office building, television station or
transmission facility owned by the Company or any Restricted Subsidiary or any
other property or right owned by or granted to the Company or any Restricted
Subsidiary and used or held for use in the television business conducted by the
Company or any Restricted Subsidiary, except for any such property or right
which in the opinion of the Board of Directors of the Company, as set forth in a
Board Resolution adopted in good faith, is not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries
considered as one enterprise.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" has the meaning specified in Section 10.7.
"Sale and Lease-Back Transaction" has the meaning specified in Section
10.8.
"Securities" or "Security" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities or Security
authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in Section 3.5.
"Significant Subsidiary" has the meaning specified in Section 5.1.
7
<PAGE>
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the principal of
such Security or an installment of principal thereof or interest thereon is due
and payable.
"Subsidiary" means (i) a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other Subsidiaries
and (ii) any partnership, association, joint venture or other entity (a) in
which the Company or one or more Subsidiaries of the Company has more than a 50%
equity interest at the time or (b) as to which the Company or one or more of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors or other governing body of such corporation, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean and include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" shall mean and include each such Person, and "Trustee," as used with
respect to the Securities of any series, shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
9.5.
"United States" means the United States of America (including the District
of Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
"United States Alien" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident fiduciary of a foreign estate or trust, or a foreign partnership one
or more members of which is, for United States Federal income tax purposes, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section 13.2.
8
<PAGE>
"Value" has the meaning set forth in Section 10.8.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.2 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate (other than any Officers' Certificate delivered pursuant
to Section 10.9) or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person
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may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Any certificate or opinion of an officer or opinion of counsel may be
based, insofar as it relates to any accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such accounting matters are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage of Holders of one or more series of Securities then Outstanding may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments is or are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or
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instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and, subject to Section 6.1, conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) The Company may fix a record date for the purpose of determining the
identity of the Holders entitled to participate in any Act authorized or
permitted under this Indenture, which record date shall be the later of (i) 10
days prior to the first solicitation of the written instruments required for
such Act or (ii) the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 7.1. If such a record
date is fixed, the Persons who were the Holders of the Securities of the
affected series at the close of business on such record date (or their duly
authorized proxies) shall be the only Persons entitled to execute written
instruments with respect to such Act, or to revoke any written instrument
previously delivered, whether or not such Persons shall continue to be Holders
of the Securities of such series after such record date. No such written
instrument shall be valid or effective for more than 150 days after such record
date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document
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provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Secretary at 888 Seventh Avenue, New York, New York 10106, or
at any other address previously furnished in writing to the Trustee by the
Company.
Any such Act or other document shall be in the English language.
SECTION 1.6 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice provided, however, that, in any case, any notice to
Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.1, shall be
sufficiently given if given in the manner specified pursuant to Section 3.1. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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SECTION 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, the Trust Indenture Act shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provisions shall
be deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.1 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.1 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.1 Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York except as may be otherwise
required by mandatory provisions of law.
SECTION 1.1 Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.1, in any case where the
due date of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a Business Day then, notwithstanding any
other provision of this Indenture or of the Securities, payment of interest or
principal (and premium, if any) need not be made on such date,
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but may be made on the next succeeding Business Day with the same force and
effect as if made on such due date or Redemption Date; provided that no interest
shall accrue for the period from and after such prior date.
SECTION 1.1 Incorporators, Stockholders, Officers and Directors Exempt from
---------------------------------------------------------------
Individual Liability.
--------------------
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 1.1 Counterparts.
------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
---------------
The Securities of each series shall be in substantially the form or forms
(including global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange or all as may, consistently
herewith, be determined by the officers executing such Securities to be
necessary or appropriate, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action together with
a true and correct copy of the form of the
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Securities of such series approved by or pursuant to such Board Resolution shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed, or engraved on
steel engraved borders, or word processed or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
--------------------------------------
as Trustee
OR
By:
-----------------------------------
as Authenticating Agent
By:
-----------------------------------
Authorized Officer
SECTION 2.3 Securities Issuable in the Form of a Global Security.
----------------------------------------------------
(a) If the Company shall establish pursuant to Section 3.1 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 3.3 and the Company Order delivered to
the Trustee thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered in the name of the Depository for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's
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instruction and (iv) shall bear a legend substantially to the following effect:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
(b) Notwithstanding any other provision of this Section 2.3 or of Section
3.5, unless otherwise provided in the Global Security, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 3.5,
only to the Depository or another nominee of the Depository for such Global
Security, or to a successor Depository for such Global Security selected or
approved by the Company or to a nominee of such successor Depository. Except as
provided below, owners solely of beneficial interests in a Global Security shall
not be entitled to receive physical delivery of the Securities represented by
such Global Security and will not be considered the Holders thereof for any
purpose under the Indenture.
(c) (i) If at any time the Depository for a Global Security notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time the Depository for the Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depository with respect to such Global Security. If a
successor Depository for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 3.1(p) shall no longer
be effective with respect to such Global Security and the Company will execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security.
(ii) The Company may at any time and in its sole discretion determine
that the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in
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definitive form in an aggregate principal amount equal to the principal amount
of such Global Security or Securities representing such series in exchange for
such Global Securities or Securities.
(iii) A Global Security will also be exchangeable if there shall
have occurred and is continuing an Event of Default or an event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default
with respect to the Securities of such series represented by such Global
Security. In such event the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities representing such series in
exchange for such Global Securities or Securities.
(iv) If specified by the Company pursuant to Section 3.1 with respect
to Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depository a new Security or Securities of the same
series of like tenor and terms and of any authorized denominations as requested
by such Person or the Depository in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and (2)
to such Depository a new Global Security of like tenor and terms and in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Securities
delivered to Holders thereof.
(v) Upon issuance, all Securities with identical terms and held by the
Depository on behalf of its participants will be represented by one Global
Security and be deposited with the Depository and registered in the name of a
nominee of the Depository. The Company may request the Trustee at any time to
consolidate two or more outstanding Global Securities having identical terms and
for which interest has been paid to the same date.
(vi) In any exchange provided for in any of the preceding five
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual fully registered Securities in authorized denominations,
provided that the
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definitive Securities so issued in exchange for a Global Security shall be in
denominations of $100,000 and any aggregate principal amount and tenor as the
portion of such Global Security to be exchanged, and provided further that,
unless the Company agrees otherwise, Securities in certificated registered form
will be issued in exchange for a Global Security, or any portion thereof, only
if such Securities in certificated registered form were requested by written
notice to the Trustee or the Securities Registrar by or on behalf of a person
who is beneficial owner of an interest thereof given through the Holder hereof.
Except as provided above, owners of beneficial interest in a Global Security
will not be entitled to receive physical delivery of Securities in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Indenture. No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Upon the exchange of a Global Security for individual Securities, such Global
Security shall be cancelled by the Trustee. Securities issued in exchange for a
Global Security pursuant to this Section 2.3 shall be registered in such names
and in such authorized denominations as the Depository for such Global Security,
pursuant to the instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the persons in whose names such Securities are so registered.
(vii) Members in and participants of the Depository shall have no
rights under the Indenture with respect to any Global Security held on their
behalf by a Depository, and such Depository may be treated by the Company, the
trustee and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever.
(d) Any Company Order delivered pursuant to Section 3.3 by the Company with
respect to the authentication, exchange, endorsement or delivery or redelivery
of a Global Security shall be in writing, signed by any one of the officers
enumerated under the definition of "Company Order" contained in Section 1.1 or
by any officer authorized by a previously delivered Company Order, but need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel.
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ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the initial issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Sections
2.3, 3.4, 3.5, 3.6, 9.6 or 11.7 and except for Securities which, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered;
(c) the date or dates on which or periods during which the Securities of
the series may be issued and the date or dates on which or the range of dates
within which the principal of (and premium, if any, on) the Securities of the
series are or may be payable;
(d) the rate or rates or the methods of determination thereof at which the
Securities of the series shall bear interest, if any, the date or dates from
which such interest shall accrue and the dates on which such interest shall be
payable and the record date for the interest payable on any such interest date;
(e) the place or places, if any, in addition to the City of New York,
where, subject to Section 10.2, the principal of (and premium, if any) and
interest on Securities of the series shall be payable, any Securities of the
series may be surrendered for registration of transfer, Securities of the series
may be surrendered for exchange and notices and demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served;
(f) the period or periods within which or the dates on which, the price or
prices at which and the terms and conditions
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upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company and/or the method by which such period or periods, dates,
price or prices and terms and conditions shall be determined;
(g) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased or repaid, in whole or in part,
pursuant to such obligation and/or the method by which such period or periods,
price or prices or terms and conditions shall be determined;
(h) provisions, if any, for the defeasance of Securities of the series;
(i) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.2 or
the method by which such portion shall be determined; and
(k) if other than Dollars, the Foreign Currency in which Securities of the
series shall be denominated, or in which payment of the principal of (and
premium, if any) and interest on the Securities of the series may be made or the
method by which such Foreign Currency shall be determined;
(l) if the principal of (and premium, if any) or interest on Securities of
the series are to be payable, at the election of the Company or a Holder
thereof, in a Currency other than that in which the Securities are denominated
or stated to be payable without such election, the periods within which and the
terms and conditions upon which, such election may be made and the time and the
manner of determining the exchange rate between the Currency in which the
Securities are denominated or payable without such election and the Currency in
which the Securities are to be paid if such election is made;
(m) if the amount of payments of principal of (and premium, if any) or
interest on the Securities of the series may be determined with reference to an
index including, but not limited to, an index based on a Currency or Currencies
other than that in which the Securities are payable, or any other type of index,
the manner in which such amounts shall be determined;
20
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(n) if the Securities of the series are denominated or payable in a Foreign
Currency, any other terms concerning the payment of principal of (and premium,
if any) or any interest on such Securities (including the Currency or Currencies
of payment thereof);
(o) any additions to or changes in the Events of Default or covenants
provided for with respect to Securities of the series or any Events of Default
or covenants herein specified which shall not be applicable to the Securities of
the series;
(p) whether the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Securities; the terms and conditions,
if any, upon which such Global Security or Securities may be exchanged in whole
or in part for other individual Securities or for other Global Securities; and
the Depository for such Global Security or Securities;
(q) whether the Securities of the series are to be issuable in definitive
form (whether upon original issuance or upon exchange of a temporary Security of
the series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, and, if so, the form and terms of such
certificates, documents or conditions;
(r) if the Company will pay additional amounts on any of the Securities and
coupons, if any, of the series to any Holder who is a United States Alien
(including any modification in the definition of such term), in respect of any
tax, assessment or governmental charge withheld or deducted, under what
circumstances and with what procedures and documentation the Company will pay
such additional amounts, whether such additional amount will be treated as
interest or principal pursuant to this Indenture, and whether the Company will
have the option to redeem such Securities rather than pay additional amounts
(and the terms of any such option);
(s) any terms applicable to Original Issue Discount, if any, including the
rate or rates at which such Original Issue Discount, if any, shall accrue;
(t) the exchange or conversion of the Securities of that series, at the
option of the Holders thereof, for or into new Securities of a different series
or other securities or other property, including shares of capital stock of the
Company or any subsidiary of the Company or securities directly or indirectly
convertible into or exchangeable for any such shares; and
(u) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any series need not be issued
at the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 Denominations.
-------------
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
3.1. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
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authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and, subject to
Section 6.1, shall be fully protected in relying upon, an Opinion of Counsel
stating that:
(a) all instruments furnished by the Company to the Trustee in connection
with the authentication and delivery of such Securities conform to the
requirements of this Indenture and constitute sufficient authority hereunder for
the Trustee to authenticate and deliver such Securities;
(b) the form of such Securities has been established in conformity with the
provisions of this Indenture;
(c) the terms of such Securities have been established in conformity with
the provisions of this Indenture;
(d) in the event that the form or terms of such Securities have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture have been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution and delivery
by the Trustee, is a valid and binding obligation enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(e) the execution and delivery of such Securities have been duly authorized
by all necessary corporate action of the Company and such Securities have been
duly executed by the Company and, assuming due authentication by the Trustee and
delivery by the Company, are the valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, entitled to the
benefit of the Indenture, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); and
(f) the amount of Outstanding Securities of such series, together with the
amount of such Securities, does not exceed any
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limit established under the terms of this Indenture on the amount of Securities
of such series that may be authenticated and delivered.
In the event that all Securities of a series are not issued at the same
time, the Trustee shall authenticate and deliver the Securities of such series
executed and delivered by the Company for original issuance upon receipt of an
order of the Company (which need not comply with Section 1.2 hereof), signed by
an officer or employee of the Company identified to the Trustee in an Officers'
Certificate, if the Trustee has previously received the Company Order and
Opinion of Counsel referred to in the third paragraph of this Section 3.3 with
respect to the issuance of any Securities of such series.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
SECTION 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed,
word processed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company for that series,
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without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.5 Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company or the Trustee shall keep a register (the "Security Register")
in which, subject to such reasonable regulations as the Company or the Trustee
may prescribe, the Company or the Trustee shall provide for the registration of
Securities and of transfers of Securities.
Upon surrender for registration of transfer of any Security of any series
at the office or agency designated by the Company for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, subject to Section 2.3, Securities of any
series may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company or any registrar with respect to such series of Securities, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax
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or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of,
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
Depository's records relating to or payment made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Company or to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's written request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the record date (as hereinafter defined) for such interest
notwithstanding the cancellation of such Security upon the registration of
transfer or exchange subsequent to the record date and prior to such interest
payment date; provided, however, that if and to the extent that the Company
shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid to the Persons in whose names outstanding
Securities are registered at the close of business on a subsequent record date
established by notice given by mail by and on behalf of the Company to the
Holders of Securities not less than fifteen days preceding such subsequent
record date, such record date to be not less than ten days preceding the date of
payment of such defaulted interest. The term "record date" as used in this
Section 3.7 with respect to any regular interest payment date shall mean such
day preceding such interest payment date as may have been established as the
record date with respect to an interest payment date for Securities of such
series in a Board Resolution in accordance with Section 3.1 hereof. The Company
may also make payment of any defaulted interest in any other lawful manner not
inconsistent with the requirements of any securities exchange in which the
Securities may be listed, and upon such notice as may be required by such
exchange if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this sentence, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security
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is registered as the owner of such Security for the purpose of receiving payment
of principal of (and premium, if any) and, subject to Section 3.7, interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered to
any Authenticating Agent, such Securities shall be promptly cancelled by such
Authenticating Agent and forwarded to the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided that the Trustee shall not
be required to dispose of Securities in a manner deemed impracticable by the
Trustee.
SECTION 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a year of twelve 30-day months.
SECTION 3.11 Currency of Payments in Respect of Securities.
---------------------------------------------
(a) Except as otherwise specified pursuant to Section 3.1, payment of the
principal of (and premium, if any) and interest on Securities of any series will
be made in Dollars.
(b) For purposes of any provision of the indenture where the Holders of
Outstanding Securities may perform an Act which requires that a specified
percentage of the Outstanding Securities of all series perform such Act and for
purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Securities of
all series in respect of which moneys are to be disbursed ratably, the principal
of (and premium, if any) and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in Dollars based upon exchange rates
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determined as specified pursuant to Section 3.1 for Securities of such series,
as of the date for determining whether the Holders entitled to perform such Act
have performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
SECTION 3.12 Judgments.
---------
The Company may provide pursuant to Section 3.1 for Securities of any
series that the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Securities of any series in a Foreign
Currency or Dollars (the "Designated Currency") as may be specified pursuant to
Section 3.1 is of the essence and thereby agree that, to the fullest extent
possible under applicable law, judgments in respect of such Securities shall be
given in the Designated Currency. In such event, the obligation of the Company
to make payments in the Designated Currency of the principal of (and premium, if
any) and interest on such Securities shall, notwithstanding any payment in any
other Currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount of the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other Currency (after any premiums and cost of exchange) on
the Business Day in the country of issue of the Designated Currency immediately
following the day on which such Holder receives such payment. If the amount in
the Designated Currency that may be so purchased for any reason falls short of
the amount originally due, the Company shall pay such additional amounts as may
be necessary to compensate for such shortfall, and any obligation of the Company
not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Securities of any series (if all series
issued under this Indenture are not to be affected), shall upon Company Request
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
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(i) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6 and (B)Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their stated maturity within
one year, or
(C) if the Securities of such series are denominated and payable
only in Dollars (except as provided pursuant to Section 3.1) and such Securities
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in Dollars (except as provided
pursuant to Section 3.1) sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(iii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(iv) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (a) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(a) default in the payment of any interest upon any Security of that series
when it becomes due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of the principal of (or premium, if any, on) any
Security of that series when due and payable as therein or herein provided
whether at its maturity or upon acceleration, redemption or otherwise; or
(c) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
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(d) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section 5.1 specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the failure to pay when due any indebtedness for money borrowed
(including indebtedness under Securities other than that series) with a
principal amount then outstanding in excess of $20,000,000 under any mortgage,
indenture or instrument under which any such indebtedness is issued or secured
(including the Indenture), or any other default which results in the
acceleration of maturity of such indebtedness, unless such indebtedness or
acceleration shall have been discharged or annulled within 10 days after due
notice by the Trustee or by Holders of at least 10% in principal amount of the
Outstanding Securities of that series; or
(f) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Significant Subsidiary under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or a Significant
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(g) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any Significant Subsidiary to the entry of a decree or
order for relief in an involuntary case or proceeding under any applicable
Federal or State bankruptcy,
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insolvency, reorganization or other similar law now or hereafter in effect or to
the commencement of any bankruptcy or insolvency case or proceeding against the
Company or any Significant Subsidiary, or the filing by the Company or any
Significant Subsidiary of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law now or hereafter in effect,
or the consent by the Company or any Significant Subsidiary to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or of any substantial part of the property
of the Company or any Significant Subsidiary, or the making by the Company or
any Significant Subsidiary of an assignment for the benefit of creditors, or the
Company or any Significant Subsidiary shall fail generally to pay its debts as
they become due, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action; or
(h) any other Event of Default provided in the supplemental indenture under
which such series of Securities is issued or in the form of Security for such
series.
The term "Significant Subsidiary" shall mean any Subsidiary (i) which, as
of the close of the fiscal year of the Company immediately preceding the date of
any determination hereunder, contributed more than 10% of the consolidated net
operating revenues of the Company and its Consolidated Subsidiaries, or (ii) the
total net tangible assets of which as of the close of such immediately preceding
fiscal year exceeded 10% of the Consolidated Net Tangible Assets of the Company
and its Consolidated Subsidiaries.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding (other than an Event of Default specified in Section 5.1(f) or (g)),
occurs and is continuing, then in every such case, unless the principal of all
of the Securities of such series shall have already become due and payable, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, in
the case of certain Securities which provide for less than the entire principal
amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to this Section 5.2, such portion of the principal
amount as may be specified in the terms of that series of Securities) and the
interest accrued thereon of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such
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declaration such principal amount (or specified amount) and interest accrued
thereon shall become immediately due and payable. If an Event of Default
specified in Section 5.1(e) or (f) occurs and is continuing, the principal
amount (or portion thereof) of all the Securities of that series shall become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Securities are denominated (except as otherwise provided
pursuant to Section 3.1) sufficient to pay
(i) all overdue interest on all Securities of that series,
(ii) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to Securities of that series, other
than the nonpayment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration shall have been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
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be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such declaration; and payment
of the portion of the principal thereof as shall have become due and payable as
a result of such declaration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if:
(a) default is made in the payment of any interest on any Security of any
series when such interest becomes due and payable;
(b) default is made in the payment of the principal of (or premium, if any,
on) any Security when due and payable whether at its maturity or upon
acceleration, redemption or otherwise; or
(c) default is made in the deposit of any sinking fund payment when and as
due by the terms of any Security,
and any such default continues for any period of grace provided in connection
with such default with respect to the Securities of such series, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest, interest on any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the Trustee under
Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the
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rights of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company, or any other obligor upon
the Securities or the property of the Company, or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
Subject to the provisions of Article Eight of this Indenture, nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
In any proceeding brought by the Trustee and also in any proceeding
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party, the Trustee shall be held to represent all the Holders
of the Securities in respect to which action was taken, and it shall not be
necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a custodian, liquidator, assignee, sequestrator, receiver,
trustee, or other similar official, or for any other remedy hereunder, unless:
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(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred by
the Trustee in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holder or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
-----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and, subject to Section 3.7,
interest on such Security on the due dates expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder,
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then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.6, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee shall have determined that the action so directed would not
be unjustly prejudicial to the Holders of any Securities of any series with
respect to which the Trustee is the Trustee not taking part in such direction,
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
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(d) the Trustee shall be indemnified as hereinafter provided.
SECTION 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or interest on
any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the due dates expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any
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stay or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the exercise of any power herein granted to the Trustee, but
will suffer and permit the exercise of every such power as though no such law
had been enacted.
SECTION 5.16 Duty to Accelerate.
------------------
The Trustee shall be under no duty to accelerate the debt hereunder or to
institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an Event of Default hereunder.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect to
Securities of any series,
(i) the Trustee undertakes to perform, with respect to Securities of
such series, such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any series
has occurred and is continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities of
any series pursuant to the provisions of Section 5.12 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and
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provided, further, that in the case of any default of the character specified in
Section 5.1(d) with respect to the Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
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Trustee, in its discretion, may make such further inquiry or investigation into
such matters of fact as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) except for (i) a default under Sections 5.1 (a), (b) or (c) hereof or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or Event of Default with respect to
Securities of any series at the time Outstanding unless specifically notified in
writing of such event by the Company or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series; as used herein,
the term "actual knowledge" means the actual fact or state of knowing, without
any duty to make any investigation with regard thereto.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent or such other agent.
SECTION 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law and except as otherwise
provided herein. The Trustee shall be
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under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation in
Dollars for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee
in Dollars upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities.
SECTION 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to each series
of Securities which shall be eligible to serve in
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such capacity under the Trust Indenture Act. The Trustee, or the bank holding
company of which the Trustee is, directly or indirectly, a wholly-owned
Subsidiary, shall have a combined capital and surplus (with its direct parent)
of at least $100,000,000. If such corporation or other Person publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation or other Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by or under common control with the Company
shall serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security of the series as to which the Trustee has a conflicting interest
for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
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(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities of such series and
accepted appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in
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the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (ii)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee
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shall with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
Successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
SECTION 6.1 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Six,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act
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regarding the collection of claims against the Company (or any such other
obligor).
SECTION 6.14 Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6 and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Whenever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery by an Authenticating Agent and a certificate of authentication executed
by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having (together with its direct parent) a combined capital and surplus of not
less than $500,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.14, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.14, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating
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Agent by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
The provisions of Sections 3.08, 6.04 and 6.05 shall be applicable to each
Authenticating Agent.
Pursuant to each appointment made under this Section 6.14, the Securities
of each series covered by such appointment may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
_____________________________,
as Trustee
By:__________________________
As Authenticating Agent
By:__________________________
Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each record date with
respect to a regular interest payment date for each series of Securities, a
list, in such form as the Trustee may reasonably require, containing all the
information in the possession and control of the Company or of its paying agents
regarding the names and addresses of the Holders of such series as of such
record date; provided, however, that if Securities of any series shall have more
than two regular interest payment dates in each calendar year or shall not bear
interest, then such list with respect to such series of Securities will be
furnished to the Trustee semi-annually on such dates as may be agreeable to the
Trustee; and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; except that if the Trustee is the sole registrar with respect to
any series of Securities, no such list need be furnished with respect to such
series.
SECTION 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as sole Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other
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communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.2(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.2(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.2(b).
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SECTION 7.3 Reports by Trustee.
------------------
(a) Within 60 days after January 1 of each year commencing with the year
1998, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such date
with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period, no
report need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and qualified under said Sections, a
written statement to such effect;
(ii) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture
Act;
(iii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made by
the Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior to
that of the Securities, on the trust estate or on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(iv) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship arising in
any manner described in Section 311(b) of the Trust Indenture Act;
(v) the property and funds, if any, physically in the possession of
the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has not
previously reported; and
(vii) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the
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Securities, or the Securities of any series, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on the trust estate or
on property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.4 Reports by Company.
------------------
The Company shall:
(a) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the
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Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents and reports required to be filed by
the Company pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on all the Securities and
the due and punctual performance and observance of every covenant and obligation
of the Company under this Indenture to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
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SECTION 8.2 Successor Corporation Substituted.
---------------------------------
Upon any consolidation of the Company with or merger of the Company into
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
8.1, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(b) to add to the covenants, agreements and obligations of the Company for
the benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default (and if such Events of Default
are to be applicable to less than all series, stating such Events of Default are
expressly being included solely to be applicable to such series); or
(d) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable as to principal, and with or without interest
coupons; or
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(e) to add to, change or eliminate any of the provisions of this Indenture,
in respect of one or more series of Securities, provided that any such addition,
change or elimination (i) shall neither (A) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision or (ii) shall become effective only
when there is no such Security Outstanding; or
(f) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 and 3.1; or
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(h) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this Indenture, provided
such action shall not adversely affect the interest of the Holders of Securities
of any series in any respect.
No supplemental indenture for the purposes identified in paragraphs (b),
(c), (e), (f) and (h) above may be entered into if to do so would adversely
affect the interest of the Holders of Outstanding Securities of any series.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of at least a majority in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(a) change the due date of the principal of, or any installment of
principal of or interest on, any Security, or
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reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon redemption thereof, or reduce the amount of the principal
of any Security that would be due and payable upon a declaration of the maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or Currency in which, any Security or any premium or the interest thereon
is denominated or payable (or, in the case of certain Securities which provide
for less than the entire principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.2,
reduce the amount of principal payable upon such a declaration of acceleration
of the maturity thereof), or impair the right to institute suit for the
enforcement of any such payment on or after the due date thereof (or, in the
case of redemption, on or after the Redemption Date), or
(b) reduce the percentage of the principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 5.13 or Section
10.10, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and, subject to Section 6.1, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may,
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but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article Nine,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the City of New York, for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of
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transfer or exchange and where notices to and demands upon the Company in
respect of the Securities of that series and this Indenture may be served.
Unless otherwise designated by the Company in a written notice to the Trustee,
such office or agency for all purposes shall be the Corporate Trust Office of
the Trustee. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee in the City of New York, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
SECTION 10.3 Money for Securities Payments To Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Paying Agent will promptly notify the Trustee of the
Company's action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
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(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest on the Securities of that series;
and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the rights (charter and
statutory) and franchises of the Company and its Restricted Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the
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conduct of the business of the Company and its Restricted Subsidiaries
considered as a whole.
SECTION 10.5 Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not disadvantageous in any respect to
the Holders of any series of Securities.
SECTION 10.6 Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (ii)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 10.7 Limitation on Indebtedness Secured by a Mortgage.
------------------------------------------------
So long as the Securities of any series shall remain Outstanding, the
Company covenants and agrees that neither it nor any Restricted Subsidiary will
create, assume, guarantee or suffer to exist any Indebtedness secured by a
Mortgage on any assets of the Company or any Restricted Subsidiary unless the
Company secures or causes such Restricted Subsidiary to secure the Securities of
that series equally and ratably with, or prior to, such secured Indebtedness;
provided, however, that this restriction shall not apply to Indebtedness secured
by:
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(a) Mortgages on the property of any corporation which Mortgages existed at
the time such corporation became a Restricted Subsidiary,
(b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages on property of the Company or a Restricted Subsidiary in
favor of the United States of America or any State or political subdivision
thereof, or in favor of any other country or any political subdivision thereof,
to secure payment pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of the construction or improvement of the property
subject to such Mortgages,
(d) Mortgages on any property hereafter acquired by the Company or any
Restricted Subsidiary, contemporaneously with such acquisition or within 120
days thereafter, to secure or provide for the payment of any part of the
purchase price, construction or improvement of such property, or Mortgages
assumed by the Company or any Restricted Subsidiary upon any property hereafter
acquired by the Company or any such Restricted Subsidiary which were existing at
the time of such acquisition, provided that the amount of any Indebtedness
secured by any such Mortgage created or assumed shall not exceed the cost to the
Company or such Restricted Subsidiary, as the case may be, of the property
covered by such Mortgage,
(e) Mortgages on the property of the Company or a Restricted Subsidiary
which are in existence on the date of issuance of the first series of Securities
under this Indenture,
(f) any extension, renewal or refunding (or successive extension, renewal
or refunding), in whole or in part, of any Mortgage referred to in the foregoing
clauses (a) through (e), inclusive, or of any Indebtedness secured thereby, and
(g) any other Mortgage, other than Mortgages referred to in the foregoing
clauses (a) through (f), inclusive, so long as the aggregate of all Indebtedness
secured by Mortgages pursuant to this clause (g) and the aggregate Value of the
Sale and Lease-Back Transactions in existence at such time (not including Sale
and Lease-Back Transactions as to which the Company has complied with Section
10.8(b)) does not exceed 15% of Consolidated Net Tangible Assets.
For purposes of this Section 10.7 and Section 10.8 the following terms
shall have the following meanings:
(h) "Indebtedness" means (i) all items which in accordance with generally
accepted accounting principles would be included
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in determining long-term liabilities representing borrowed money or purchase
money obligations as shown on the liability side of a balance sheet (other than
liabilities evidenced by obligations under leases and contracts payable for
broadcast rights), (ii) to the extent not included in clause (i) above,
indebtedness secured by any Mortgage existing on property owned subject to such
Mortgage whether or not the indebtedness secured thereby shall have been
assumed, and (iii) to the extent not included in clauses (i) or (ii) above,
contingent obligations in respect of, or to purchase or otherwise acquire, any
indebtedness of others of the character described in clauses (i) and (ii) above
including, but not limited to, guarantees and endorsements (other than for
purposes of collection in the ordinary course of business of any such
indebtedness);
(i) "Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance;
(j) "Consolidated Net Tangible Assets" means total consolidated assets of
the Company and its Restricted Subsidiaries, less (i) current liabilities of the
Company and its Restricted Subsidiaries, and (ii) the net book amount of all
intangible assets of the Company and its Restricted Subsidiaries.
(k) "Restricted Subsidiary" means any Subsidiary of the Borrower other than
a Designated Subsidiary.
SECTION 10.8 Limitation on Sale and Lease-Back.
---------------------------------
The Company covenants and agrees that neither it nor any Restricted
Subsidiary will enter into any arrangement with any Person (other than the
Company or a Restricted Subsidiary), or to which any Person is a party,
providing for the leasing to the Company, or a Restricted Subsidiary, for a
period, including renewals, of more than three years of any Principal Property
which has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person or to any other Person (other than the Company or a
Restricted Subsidiary) to which funds have been or are to be advanced by such
Person on the security of such leased property (in this Article Ten called a
"Sale and Lease-Back Transaction") unless either:
(a) The Company or such Restricted Subsidiary would be entitled to create,
assume, guarantee or suffer Indebtedness secured by a Mortgage under any
provision of clauses (a) through (e) of Section 10.7 or, pursuant to the
provisions of Section 10.7, to incur Indebtedness in a principal amount equal to
or exceeding the Value of such Sale and Lease-Back Transaction, secured by a
Mortgage on the property to be leased, without equally and ratably securing the
Securities; or
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(b) The Company or such Restricted Subsidiary within four months after the
effective date of such Sale and Lease-Back Transaction (whether made by the
Company or a Restricted Subsidiary), applies to the voluntary retirement of
Indebtedness of the Company (which may include Securities, provided that any
series of Securities may only be redeemed in accordance with the terms of such
series) maturing by the terms thereof more than one year after the original
creation thereof and ranking at least pari passu with the Securities
(hereinafter in this Section called "Funded Debt") an amount equal to the
greater of (i) the net proceeds of the sale of the property subject to the Sale
and Lease-Back Transaction and (ii) the Value of such Sale and Lease-Back
Transaction, less the principal amount of Securities delivered within four
months after the effective date of such arrangement, to the Trustee for
retirement and cancellation and the principal amount of other Funded Debt
voluntarily retired by the Company within such four-month period, excluding
retirements of Securities and other Funded Debt as a result of conversions or
pursuant to mandatory sinking fund or prepayment provisions or by payment at
maturity.
For purposes of Section 10.7 and this Section 10.8, the term "Value" shall
mean, with respect to a Sale and Lease-Back Transaction, as of any particular
time, the amount equal to the greater of (i) the net proceeds of the sale or
transfer of the property leased pursuant to such Sale and Lease-Back Transaction
or (ii) the fair value in the opinion of the Board of Directors of such property
at the time of entering into such Sale and Lease-Back Transaction, in either
case divided first by the number of full years of the terms of the lease and
then multiplied by the number of the full years of such term remaining at the
time of determination, without regard to any renewal or extension options
contained in the lease.
SECTION 10.9 Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers' Certificate (executed by at least the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company) stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the Company's covenants and agreements contained in this Indenture and if
the Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.10 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.4 through 10.8, inclusive, with
respect to the Securities of any
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series if before or after the time for such compliance the Holders of a majority
in principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instances or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 10.11 Designated Subsidiaries.
-----------------------
The Company may at any time after the date hereof designate any Subsidiary
(other than a Subsidiary holding any Station Licenses or the operating assets of
any Stations) as a "Designated Subsidiary" for purposes of this Indenture, by
delivering to the Trustee a certificate of a senior officer of the Company
identifying such Subsidiary, stating that such Subsidiary shall be treated as a
"Designated Subsidiary" for all purposes hereof and certifying that, after
giving effect to such designation, the Company will be in compliance with the
provisions of this Indenture applicable to such Designated Subsidiary, and such
designation will not result in an Event of Default hereunder; provided that the
value of the capital stock, partnership or other ownership interest directly or
indirectly held by the Company in Designated Subsidiaries shall not exceed at
any one time an aggregate amount in excess of $250,000,000. Any Subsidiary of a
Designated Subsidiary shall be deemed to be a "Designated Subsidiary".
The Company may at any time rescind the designation of any Subsidiary as a
"Designated Subsidiary" for purposes of this Agreement, by delivering to the
Trustee a certificate of a senior officer identifying such Subsidiary, stating
that such Subsidiary shall no longer be treated as a "Designated Subsidiary" for
purposes hereof and certifying that, after giving effect to such rescission, the
Company will be in compliance with the provisions of this Indenture applicable
to Restricted Subsidiaries.
"Station Licenses" means all authorization, licenses or permits issued by
----------------
the FCC and granted or assigned to the Borrower or any Restricted Subsidiary
thereof, or under which the Borrower or any Restricted Subsidiary thereof has
the right to operate any Station, together with any extensions of renewals
thereof.
"Stations" means the television broadcasting stations from time to time
--------
owned by the Borrower or any of its Restricted Subsidiaries.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article Eleven.
SECTION 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
(a) In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed.
(b) In the case of any redemption of Securities (i) prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denominations for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Securities
which has been
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or is to be redeemed.
SECTION 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be the date for an installment of interest) accrued interest on, all
the Securities which are to be redeemed on that date.
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SECTION 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
due date is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant record date with respect to such
installments of interest according to their terms and the provisions of Section
3.7. If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security. All securities surrendered to the Trustee for redemption shall, upon
payment by the Company of the Redemption Price, be cancelled by the Trustee and
no Securities shall be authenticated in lieu thereof.
SECTION 11. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
specified place of payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
------------------------
The provisions of this Article Twelve shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.1 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (a) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (b) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the Securities of such
series are denominated (except as provided pursuant to Section 3.1) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and, prior to or concurrently
with the delivery of such Officers' Certificate, will also deliver to the
Trustee any Securities to be so delivered. Not less than 45 days before each
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.3 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.4. Such notice
having been duly given, the
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redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.5, 11.6 and 11.7.
ARTICLE XII
DEFEASANCE
SECTION 13.1 Applicability of Article.
------------------------
If pursuant to Section 3.1 provision is made for the defeasance of
Securities of a series, and if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section 3.1) then the
provisions of this Article Thirteen shall be applicable except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.
Defeasance provisions, if any, for Securities denominated in a Foreign Currency
may be specified pursuant to Section 3.1.
SECTION 13.2 Defeasance upon Deposit of Moneys or U.S. Government Obligations.
----------------------------------------------------------------
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to
Securities of any series on the 91st day after the applicable conditions set
forth below have been satisfied ("Defeasance") or (b) the Company shall cease to
be under any obligation to comply with any term, provision or condition set
forth in Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section 10.8
with respect to Securities of any series (and, if so specified pursuant to
Section 3.1, any other restrictive covenant added for the benefit of such
series) ("Covenant Defeasance") at any time after the applicable conditions set
forth below have been satisfied:
(a) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities of such
series (i) money in an amount, or (ii) U.S. Government Obligations (as defined
below) which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient in the opinion (with respect to (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each
installment of principal (including any mandatory sinking fund payments) of,
and interest on, the Outstanding Securities of such series on the respective
Stated Maturities thereof.
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(b) if the Securities of such series are then listed on the New York Stock
Exchange or any other securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Company's exercise of
its option under this Section would not cause such Securities to be delisted;
(c) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with respect
to the Securities of such series shall have occurred and be continuing on the
date of such deposit or, with regard to any such event specified in Sections
5.1(e) and (f), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until after such 90th day);
(d) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of the
Company's exercise of its option under this Section 13.2 and will be subject to
Federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised, and, in
the case of the Securities of such series being Discharged, accompanied by a
ruling to that effect received from or published by the Internal Revenue
Service.
(e) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(f) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a Default under, any other agreement or instrument
to which the Company is a party or by which it is bound.
(g) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder.
(h) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of
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the Company, shall execute proper instruments acknowledging the same), except
(A) the rights of Holders of Securities of such series to receive payment of the
principal of and the interest on such Securities when such payments are due, (B)
the Company's obligations with respect to the Securities of such series under
Sections 3.5, 3.6, 10.2 and 13.3, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (D) this Article Thirteen.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America or the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
SECTION 13.3 Deposited Moneys and U.S. Government Obligations to Be Held in
--------------------------------------------------------------
Trust.
-----
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.2 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal (and premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 13.4 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Thirteen with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
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discharged or released pursuant to Section 13.2 shall be revived and reinstated
as though no deposit had occurred pursuant to this Article Thirteen with respect
to such Securities, until such time as the Trustee or Paying Agency is permitted
to apply all money held in trust pursuant to Section 13.3 with respect to such
Securities in accordance with this Article Thirteen; provided, however, that if
the Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company shall
be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
SECTION 13.5 Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any money or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Securities of any series for which money or
U.S. Government Obligations have been deposited pursuant to Section 13.2.
The provisions of the last paragraph of Section 10.3 shall apply to any
money held by the Trustee or any Paying Agent under this Article Thirteen that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government obligations have been deposited pursuant to
Section 13.2.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
---------------------------
Name: Dean H. Blythe
Title: Senior Vice President/
Corporate Development,
General Counsel and
Secretary
BANK OF MONTREAL TRUST COMPANY
By: /s/ Amy Roberts
---------------------------
Name: Amy Roberts
Title: Vice President
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EXHIBIT 4.2
-------------------------------------------------------
HEARST-ARGYLE TELEVISION, INC.
And
BANK OF MONTREAL TRUST COMPANY
Trustee
---------------------------------------------------------
First Supplemental Indenture
Dated as of November 13, 1997
to Indenture
Dated as of November 13, 1997
---------------------------------------------------------
Relating to
$125,000,000 7% Senior Notes Due 2007
and to
$175 ,000,000 7 1/2% Debentures Due 2027
--------------------------------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of November 13, 1997 ("First
Supplemental Indenture"), to the Indenture, dated as of November 13, 1997,
between HEARST-ARGYLE TELEVISION, INC., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company"), having its principal office at 888 Seventh Avenue, New York, New
York 10106, and BANK OF MONTREAL TRUST COMPANY, a corporation duly organized
and existing under the laws of the State of New York, as Trustee hereunder
(hereinafter called the "Trustee"), having its Corporate Trust Office at 88 Pine
Street, 19th Floor, New York, New York 10005.
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of November 13, 1997 (the "Indenture"), providing
for the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (the "Securities") to be issued in one or more series
as therein provided;
WHEREAS, Section 9.1 of the Indenture provides that the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into an indenture supplemental to the Indenture
without the consent of any Holders (as defined in the Indenture) to establish
the form or terms of Securities of any series;
WHEREAS, the Company has duly authorized the creation of (i) an issue
of its Securities to be known as the 7% Senior Notes Due 2007 (the "2007 Notes")
and (ii) an issue of its Securities to be known as the 7 1/2% Debentures Due
2027 (the "2027 Debentures" and, together with the 2007 Notes, the "Notes") and
to provide therefor, the Company has duly authorized the execution and delivery
of this First Supplemental Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered in accordance with Section 3.3 of the
Indenture and duly issued by the Company, the valid obligations of the Company,
and to make this First Supplemental Indenture a valid agreement of the Company,
in accordance with their and its terms, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes as follows:
1
<PAGE>
1. Definitions.
-----------
a. Terms.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes, as the case may be.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the five Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston
Corporation or, if such firm is unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Trustee.
"Reference Treasury Dealer" means (i) Credit Suisse First Boston
Corporation, J.P. Morgan Securities Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated and their respective successors, provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer, and (ii) any other Primary
Treasury Dealer selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
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"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
b. Capitalized terms used but not defined in this First Supplemental
Indenture shall have the meanings ascribed to them in the Indenture.
c. References in this First Supplemental Indenture to section numbers shall
be deemed to be references to section numbers of this First Supplemental
Indenture unless otherwise specified.
d. In the case of capitalized terms defined in this First Supplemental
Indenture that are also defined in the Indenture, the meanings ascribed to such
terms in this First Supplemental Indenture shall apply with respect to the
Notes.
2. The Securities.
--------------
a. In accordance with Section 3.1, there is hereby created a series of
Securities under the Indenture with the following terms:
i. the title of the series of Securities created hereby is the "7%
Senior Notes Due 2007";
ii. the aggregate principal amount of the 2007 Notes which may be
authenticated and delivered (except for 2007 Notes authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of, other 2007
Notes pursuant to Sections 3.4, 3.5 or 3.6 of the Indenture) is limited to
$125,000,000;
iii. the principal of the 2007 Notes shall be payable on November 15,
2007 unless earlier repaid in accordance with the Indenture, as modified by this
First Supplemental Indenture;
iv. the 2007 Notes shall accrue interest at the rate of 7% per annum
(computed on the basis of a 360-day year consisting of twelve 30-day months),
and interest on the 2007 Notes will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or
if no interest has been paid, from November 13, 1997, as the case may be, and
will be payable in cash semi-annually in arrears on May 15 and November 15 of
each year (the "Interest Payment Dates"), commencing on May 15, 1998, to the
Holders of record on the immediately preceding May 1 and November 1,
respectively (the "Regular Record Dates"), until principal thereof is paid or
duly provided for. Interest on any overdue principal or premium shall be payable
on demand;
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v. the Place of Payment of the 2007 Notes, and the place where the 2007
Notes may be surrendered for registration of transfer and where the 2007 Notes
may be surrendered for exchange and where notices or demands may be served to or
upon the Company with respect to the 2007 Notes, shall be the Corporate Trust
Office of the Trustee in the City of New York, New York, which office on the
date hereof is located at 88 Pine Street, 19th Floor, New York, New York 10005;
vi. the 2007 Notes shall be issuable only in denominations of $1,000
principal amount and any integral multiple thereof;
vii. payment of the principal of (and premium, if any) or interest on the
2007 Notes shall be denominated and payable only in Dollars;
viii. except as stated in this First Supplemental Indenture, the 2007
Notes do not contain any provisions granting special rights to the Holders
thereof;
ix. with respect to the 2007 Notes, there shall not be any deletions from,
modifications of, or additions to the Events of Default or covenants of the
Company set forth in the Indenture;
x. no portion of the 2007 Notes is convertible into Common Stock or
Preferred Stock; and
xi. the additional provisions set forth below in Sections 3 through 10
shall apply to the 2007 Notes.
b. In accordance with Section 3.1 of the Indenture, there is hereby
created a series of Securities under the Indenture with the following terms:
i. the title of the series of Securities created hereby is the "7 1/2%
Debentures Due 2027;"
ii. the aggregate principal amount of the 2027 Debentures which may be
authenticated and delivered (except for 2027 Debentures authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other 2027 Debentures pursuant to Sections 3.4, 3.5 or 3.6 of the Indenture) is
limited to $175,000,000;
iii. the principal of the 2027 Debentures shall be payable on November 15,
2027 unless earlier repaid in accordance with the Indenture, as modified by this
First Supplemental Indenture;
iv. the 2027 Debentures shall accrue interest at the rate of 7 1/2% per
annum (computed on the basis of a 360-day year consisting of twelve 30-day
months), and
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interest on the 2027 Debentures will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or
if no interest has been paid, from November 13, 1997, as the case may be, and
will be payable in cash semi-annually in arrears on May 15 and November 15 of
each year (the "Interest Payment Dates"), commencing on May 15, 1998, to the
Holders of record on the immediately preceding May 1 and November 1,
respectively (the "Regular Record Dates"), until principal thereof is paid or
duly provided for. Interest on any overdue principal or premium shall be payable
on demand;
v. the Place of Payment of the 2027 Debentures, and the place where the
2027 Debentures may be surrendered for registration of transfer and where the
2027 Debentures may be surrendered for exchange and where notices or demands may
be served to or upon the Company with respect to the 2027 Debentures, shall be
the Corporate Trust Office of the Trustee in the City of New York, New York,
which office on the date hereof is located at 88 Pine Street, 19th Floor, New
York, New York 10005;
vi. the 2027 Debentures shall be issuable only in denominations of $1,000
principal amount and any integral multiple thereof;
vii. payment of the principal of (and premium, if any) or interest on the
2027 Debentures shall be denominated and payable only in Dollars;
viii. except as stated in this First Supplemental Indenture, the 2027
Debentures do not contain any provisions granting special rights to the Holders
thereof;
ix. with respect to the 2027 Debentures, there shall not be any deletions
from, modifications of, or additions to the Events of Default or covenants of
the Company set forth in the Indenture;
x. no portion of the 2027 Debentures is convertible into Common Stock or
Preferred Stock; and
xi. the additional provisions set forth below in Sections 3 through 10
shall apply to the 2027 Debentures.
c. All of the covenants, agreements and provisions of this First
Supplemental Indenture shall be deemed to be and construed as part of the
Indenture to the same extent as if fully set forth verbatim therein and shall be
fully enforceable in the manner provided in the Indenture. To the extent not
expressly amended or modified by this First Supplemental Indenture, the
Indenture shall remain in full force and effect.
3. Optional Redemption.
-------------------
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a. The 2007 Notes and the 2027 Debentures will be redeemable, as a whole
or in part, at the option of the Company at any time, at a redemption price
equal to the greater of:
i. 100% of their principal amount; or
ii. as determined by an Independent Investment Banker, the sum of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield plus 15
basis points in the case of the 2007 Notes and 25 basis points in the case of
the 2027 Debentures, plus in the case of each of clauses (i) and (ii) accrued
interest to the date of redemption.
b. Interest will cease to accrue on the 2007 Notes and 2027 Debentures (or
any portion thereof), if so called for redemption.
c. The Notes are not subject to any sinking fund.
d. Holders of 2007 Notes and 2027 Debentures to be redeemed will receive
notice thereof by first-class mail at least 30 and not more than 60 days prior
to the date fixed for redemption.
e. Unless the Company defaults in the payment of the redemption price, on or
after the applicable redemption date, interest will cease to accrue on Notes or
portions thereof called for redemption.
4. Book-Entry System.
-----------------
The 2007 Notes and the 2027 Debentures will be represented by one or more
Global Securities registered in the name of Cede & Co., the nominee of The
Depository Trust Company (the "Depositary"). The Depository is a limited-
purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depositary holds securities
that its participants (the "Direct Participants") deposit with the Depository.
The Depositary also facilitates the settlement among Direct Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in the Direct Participants'
accounts, thereby eliminating the need for physical movement of securities
certificates. Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
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<PAGE>
The Depositary is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the Depositary's system is
also available to other securities brokers and dealers, banks and trust
companies that clear through, or maintain a custodial relationship with, a
Direct Participant, either directly or indirectly (the "Indirect Participants,"
and together with the Direct Participants, the "Participants"). The rules
applicable to the Depositary and its Participants are on file with the U.S.
Securities and Exchange Commission.
Purchases of the Notes within the Depositary's system must be made by or
through Direct Participants, which will receive a credit for the Notes on the
Depositary's records. The ownership interest of each actual purchaser of each
Note (a "Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' respective records. Beneficial Owners will not receive written
confirmation from the Depositary of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the transaction,
as well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the transaction.
Transfers of ownership interest in the Notes are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interest in Notes except in the event that use of the book-entry system for the
Notes is discontinued.
To facilitate subsequent transfers, all Notes deposited by Direct Participants
with the Depositary will be registered in the name of Cede & Co. The deposit of
the Notes with the Depositary and their registration in the name of Cede & Co.
effect no change in beneficial ownership. The Depositary has no knowledge of the
actual Beneficial Owners of the Notes; the Depositary's records reflect only the
identity of the Direct Participants to whose accounts such Notes are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depositary to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the Notes
are being redeemed, the Depositary's practice is to determine by lot the amount
of the interest of each Direct Participant in such series to be redeemed.
Neither the Depositary nor Cede & Co. will consent or vote with respect to the
Notes. Under its usual procedures, the Depositary mails an omnibus proxy (an
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<PAGE>
"Omnibus Proxy") to the Participants as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the Notes are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Principal, redemption premium, if any, and interest payments on the Notes will
be made to the Depositary. The Depositary's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on the Depositary's records unless the Depositary has
reason to believe that it will not receive payment on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities for the
accounts of customers in bearer form or registered in "street-name," and will be
the responsibility of such Participant and not of the Depositary, the
Underwriters, or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal,
redemption premium, if any, and interest to the Depositary is the responsibility
of the Company or the respective trustees. Disbursement of such payments to
Direct Participants is the responsibility of the Depositary, and disbursement of
such payments to the Beneficial Owners is the responsibility of Direct and
Indirect Participants. Registered Global Securities will settle in immediately
available funds in the secondary trading market. No assurance can be given as to
the effect, if any, of settlement in immediately available funds on trading
activity in the Notes.
The Depositary may discontinue providing its services as securities depository
with respect to the Notes at any time by giving reasonable notice to the
Company. Under such circumstances and in the event that a successor securities
depository is not obtained, Notes certificates are required to be printed and
delivered. In addition, the Company may decide to discontinue use of the system
of book-entry transfers through the Depositary (or a successor securities
depository). In that event, Notes certificates will be printed and delivered.
The Company will not have any responsibility or obligation to Participants or
the persons for whom they act as nominees with respect to the accuracy of the
records of the Depositary, its nominee or any Direct or Indirect Participant
with respect to any ownership interest in the Notes, or with respect to payments
to or providing of notice for the Direct Participants, the Indirect Participants
or the Beneficial Owners.
The form of the 2007 Notes is attached hereto as Exhibit A; and the form of
the 2027 Debentures is attached hereto as Exhibit B;
5. Conflict with Trust Indenture Act.
---------------------------------
If any provision of the Indenture, as modified by the First Supplemental
Indenture, limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is
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required under Trust Indenture Act to be part of and govern the Indenture, as
modified by the First Supplemental Indenture, the latter provision shall
control. If any provision of the Indenture, as modified by this First
Supplemental Indenture, modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to the Indenture, as modified this First Supplemental Indenture,
as so modified by or to be excluded, as the case may be.
6. CUSIP Numbers.
-------------
The Company in issuing the Notes may use "CUSIP" numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption
as a convenience to the Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
7. No Recourse Against Others.
--------------------------
No recourse shall be had for the payment of the principal of (or premium, if
any) or interest, if any, on the Notes, the Indenture or this First Supplemental
Indenture, or any part hereof or thereof, or for any claim based hereon or
thereon or otherwise in respect hereof or thereof, or of the indebtedness
represented hereby or thereby, or upon any obligation, covenant or agreement
under the Notes, the Indenture or this First Supplemental Indenture, against,
and no personal liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer or director, as such, past, present or
future, of (i) the Company or (ii) any predecessor or successor corporation
(either directly or through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise. Each
Holder by accepting a Note waives and releases all such liability. Such waiver
and release are part of the consideration for the issuance of the Notes.
8. Counterparts.
------------
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
9. Effect of Headings.
------------------
The section headings herein are for convenience only and shall not affect the
construction hereof.
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10. Effectiveness.
-------------
This First Supplemental Indenture shall become effective in accordance with
the provisions of Article IX of the Indenture.
10
<PAGE>
IN WITNESS WHEREOF, parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[SEAL] HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
------------------------------------------
Title: Title: Senior Vice President/Corporate
Development, General Counsel and
Secretary
[SEAL] BANK OF MONTREAL TRUST COMPANY
By: /s/ Amy Roberts
------------------------------------------
Name: Amy Roberts
Title: Vice President
11
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EXHIBIT A
CUSIP 422317AA5
HEARST-ARGYLE TELEVISION, INC.
$125,000,000 7% SENIOR NOTES DUE 2007
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (HEREINAFTER "DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF HAS AN INTEREST HEREIN.
PRINCIPAL AMOUNT: One Hundred and Twenty-Five Million Dollars
($125,000,000)
MATURITY DATE: November 15, 2007
ISSUE DATE: November 13, 1997
INTEREST RATE: 7%
CUSIP: 422317AA5
INTEREST PAYMENT DATES: May 15 and November 15, commencing
May 15, 1998
REGULAR RECORD DATES: May 1 and November 1
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Hearst-Argyle Television, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to)(capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $125,000,000 Dollars on November 15,
2007 and to pay interest thereon from November 13, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing May 15, 1998,
at the rate of 7 % per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date (a "Special Record Date") to be fixed by the
Company for the payment of such defaulted interest, notice whereof shall be
given to Holders of Securities of this series not less than 15 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of November 13, 1997 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and Bank of Montreal Trust Company (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to
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the Indenture, all indentures supplemental thereto or Board Resolutions with
respect thereto for a statement of the respective rights, limitations or rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $125,000,000.
The Securities of this series are subject to redemption prior to the Stated
Maturity upon not less than 30 days' notice by mail, at any time, as a whole or
in part, at the election of the Company, at a redemption price equal to the
greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by an Independent Investment Banker (as defined below), the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Yield plus fifteen
(15) basis points, plus, in each case, accrued interest thereon to the date of
redemption.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (B) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (I) the average
of the five Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such reference Treasury Dealer Quotations, or
(II) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee.
"Reference Treasury Dealer" means (i) Credit Suisse First Boston, J.P. Morgan
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their
respective successors, provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary
3
<PAGE>
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of the Securities to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date, interest will cease to accrue on the Securities or portions
thereof called for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or of certain restrictive covenants with respect
to this Security, in each case upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of at least a majority
in aggregate principal amount of the
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Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency designated by the Company for Securities of this series, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company or any registrar with respect to Securities of this series duly
executed by the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and
5
<PAGE>
of like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
6
<PAGE>
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
The Securities shall be governed by and construed in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: November 13, 1997 HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
----------------------------------------
Name: Dean H. Blythe
Title: Senior Vice President/Corporate
Development, General Counsel and
Secretary
Attest:
By: /s/ Teresa Lopez
----------------------------------------
Name: Teresa Lopez
Title: Controller and Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the securities of the series designated herein referred to
in the within-mentioned Indenture.
BANK OF MONTREAL TRUST COMPANY
as Trustee
By:
Name: ____________________________
Authorized Signatory
7
<PAGE>
FORM OF ASSIGNMENT
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT --___________ Custodian ___________
(Cust) (Minor)
under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
_____________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[Please insert Social Security or other identifying number of assignee]
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing __________________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written on the face of the within instrument in every particular, without
alteration or enlargement, or any change whatever.
8
<PAGE>
EXHIBIT B
CUSIP 422317AB3
HEARST-ARGYLE TELEVISION, INC.
$175,000,000 7 1/2% DEBENTURES DUE 2027
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (HEREINAFTER "DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF HAS AN INTEREST HEREIN.
PRINCIPAL AMOUNT: One Hundred and Seventy-Five Million Dollars
($175,000,000)
MATURITY DATE: November 15, 2027
ISSUE DATE: November 13, 1997
INTEREST RATE: 7 1/2%
CUSIP: 422317AB3
INTEREST PAYMENT DATES: May 15 and November 15, commencing
May 15, 1998
REGULAR RECORD DATES: May 1 and November 1
1
<PAGE>
Hearst-Argyle Television, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to)(capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $175,000,000 Dollars on November 15,
2027 and to pay interest thereon from November 13, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing May 15, 1998 at
the rate of 7 1/2% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date (a "Special Record Date") to be fixed by the
Company for the payment of such defaulted interest, notice whereof shall be
given to Holders of Securities of this series not less than 15 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under
2
<PAGE>
an Indenture, dated as of November 13, 1997 (herein called the "Indenture,"
which term shall have the meaning assigned to it in such instrument), between
the Company and Bank of Montreal Trust Company (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture, all indentures supplemental thereto or Board
Resolutions with respect thereto for a statement of the respective rights,
limitations or rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $175,000,000.
The Securities of this series are subject to redemption prior to the Stated
Maturity upon not less than 30 days' notice by mail, at any time, as a whole or
in part, at the election of the Company, at a redemption price equal to the
greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by an Independent Investment Banker (as defined below), the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Yield plus twenty-
five (25) basis points, plus, in each case, accrued interest thereon to the date
of redemption.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (B) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (I) the average
of the five Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such reference Treasury Dealer Quotations, or
(II) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee.
3
<PAGE>
"Reference Treasury Dealer" means (i) Credit Suisse First Boston, J.P. Morgan
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated and
their respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of the Securities to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date, interest will cease to accrue on the Securities or portions
thereof called for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or of certain restrictive covenants with respect
to this Security, in each case upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture
4
<PAGE>
at any time by the Company and the Trustee with the consent of the Holders of at
least 50% in aggregate principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of at least 50% in aggregate principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past Defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency designated by the Company for Securities of this series, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company or any registrar with respect to Securities of this series duly
executed by the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
5
<PAGE>
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
The Securities shall be governed by and construed in accordance with the laws
of the State of New York.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: November 13, 1997 HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
----------------------------------------
Name: Dean H. Blythe
Title: Senior Vice President/Corporate
Development, General Counsel
and Secretary
Attest:
By: /s/ Teresa Lopez
----------------------------------------
Name: Teresa Lopez
Title: Controller and Assistant
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the securities of the series designated herein referred to
in the within-mentioned Indenture.
BANK OF MONTREAL TRUST COMPANY
as Trustee
By:___________________________
Name:_________________________
Authorized Signatory
7
<PAGE>
FORM OF ASSIGNMENT
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT --________ Custodian ____________
(Cust) (Minor)
under Uniform Gifts to Minors Act______________________
(State)
Additional abbreviations may also be used though not in the above list.
_____________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[Please insert Social Security or other identifying number of assignee]
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing __________________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written on the face of the within instrument in every particular, without
alteration or enlargement, or any change whatever.
8
<PAGE>
EXHIBIT 4.3
CUSIP 422317AA5
HEARST-ARGYLE TELEVISION, INC.
$125,000,000 7% SENIOR NOTES DUE 2007
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (HEREINAFTER "DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF HAS AN INTEREST HEREIN.
PRINCIPAL AMOUNT: One Hundred and Twenty-Five Million Dollars
($125,000,000)
MATURITY DATE: November 15, 2007
ISSUE DATE: November 13, 1997
INTEREST RATE: 7%
CUSIP: 422317AA5
INTEREST PAYMENT DATES: May 15 and November 15, commencing
May 15, 1998
REGULAR RECORD DATES: May 1 and November 1
1
<PAGE>
Hearst-Argyle Television, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to)(capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $125,000,000 Dollars on November 15,
2007 and to pay interest thereon from November 13, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing May 15, 1998,
at the rate of 7 % per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date (a "Special Record Date") to be fixed by the
Company for the payment of such defaulted interest, notice whereof shall be
given to Holders of Securities of this series not less than 15 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of November 13, 1997 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and Bank of Montreal Trust Company (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to
2
<PAGE>
the Indenture, all indentures supplemental thereto or Board Resolutions with
respect thereto for a statement of the respective rights, limitations or rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $125,000,000.
The Securities of this series are subject to redemption prior to the Stated
Maturity upon not less than 30 days' notice by mail, at any time, as a whole or
in part, at the election of the Company, at a redemption price equal to the
greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by an Independent Investment Banker (as defined below), the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Yield plus fifteen
(15) basis points, plus, in each case, accrued interest thereon to the date of
redemption.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (B) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (I) the average
of the five Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such reference Treasury Dealer Quotations, or
(II) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee.
"Reference Treasury Dealer" means (i) Credit Suisse First Boston, J.P. Morgan
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their
respective successors, provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary
3
<PAGE>
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of the Securities to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date, interest will cease to accrue on the Securities or portions
thereof called for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or of certain restrictive covenants with respect
to this Security, in each case upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of at least a majority
in aggregate principal amount of the
4
<PAGE>
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency designated by the Company for Securities of this series, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company or any registrar with respect to Securities of this series duly
executed by the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and
5
<PAGE>
of like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
6
<PAGE>
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
The Securities shall be governed by and construed in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: November 13, 1997 HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
----------------------------------------
Name: Dean H. Blythe
Title: Senior Vice President/Corporate
Development, General Counsel and
Secretary
Attest:
By: /s/ Teresa Lopez
----------------------------------------
Name: Teresa Lopez
Title: Controller and Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the securities of the series designated herein referred to
in the within-mentioned Indenture.
BANK OF MONTREAL TRUST COMPANY
as Trustee
By: /s/ Amy Roberts
------------------------------
Name: Amy Roberts
-----------------------------
Authorized Signatory
7
<PAGE>
FORM OF ASSIGNMENT
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT --___________ Custodian ___________
(Cust) (Minor)
under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
_____________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[Please insert Social Security or other identifying number of assignee]
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing __________________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written on the face of the within instrument in every particular, without
alteration or enlargement, or any change whatever.
8
<PAGE>
EXHIBIT 4.4
CUSIP 422317AB3
HEARST-ARGYLE TELEVISION, INC.
$175,000,000 7 1/2% DEBENTURES DUE 2027
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (HEREINAFTER "DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF HAS AN INTEREST HEREIN.
PRINCIPAL AMOUNT: One Hundred and Seventy-Five Million Dollars
($175,000,000)
MATURITY DATE: November 15, 2027
ISSUE DATE: November 13, 1997
INTEREST RATE: 7 1/2%
CUSIP: 422317AB3
INTEREST PAYMENT DATES: May 15 and November 15, commencing
May 15, 1998
REGULAR RECORD DATES: May 1 and November 1
1
<PAGE>
Hearst-Argyle Television, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to)(capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $175,000,000 Dollars on November 15,
2027 and to pay interest thereon from November 13, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing May 15, 1998 at
the rate of 7 1/2% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date (a "Special Record Date") to be fixed by the
Company for the payment of such defaulted interest, notice whereof shall be
given to Holders of Securities of this series not less than 15 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under
2
<PAGE>
an Indenture, dated as of November 13, 1997 (herein called the "Indenture,"
which term shall have the meaning assigned to it in such instrument), between
the Company and Bank of Montreal Trust Company (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture, all indentures supplemental thereto or Board
Resolutions with respect thereto for a statement of the respective rights,
limitations or rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $175,000,000.
The Securities of this series are subject to redemption prior to the Stated
Maturity upon not less than 30 days' notice by mail, at any time, as a whole or
in part, at the election of the Company, at a redemption price equal to the
greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by an Independent Investment Banker (as defined below), the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Yield plus twenty-
five (25) basis points, plus, in each case, accrued interest thereon to the date
of redemption.
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (B) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (I) the average
of the five Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such reference Treasury Dealer Quotations, or
(II) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee.
3
<PAGE>
"Reference Treasury Dealer" means (i) Credit Suisse First Boston, J.P. Morgan
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated and
their respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by
the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of the Securities to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date, interest will cease to accrue on the Securities or portions
thereof called for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or of certain restrictive covenants with respect
to this Security, in each case upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture
4
<PAGE>
at any time by the Company and the Trustee with the consent of the Holders of at
least 50% in aggregate principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of at least 50% in aggregate principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past Defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency designated by the Company for Securities of this series, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company or any registrar with respect to Securities of this series duly
executed by the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
5
<PAGE>
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
The Securities shall be governed by and construed in accordance with the laws
of the State of New York.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: November 13, 1997 HEARST-ARGYLE TELEVISION, INC.
By: /s/ Dean H. Blythe
----------------------------------------
Name: Dean H. Blythe
Title: Senior Vice President/Corporate
Development, General Counsel
and Secretary
Attest:
By: /s/ Teresa Lopez
----------------------------------------
Name: Teresa Lopez
Title: Controller and Assistant
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the securities of the series designated herein referred to
in the within-mentioned Indenture.
BANK OF MONTREAL TRUST COMPANY
as Trustee
By: /s/ Amy Roberts
------------------------------
Name: Amy Roberts
-----------------------------
Authorized Signatory
7
<PAGE>
FORM OF ASSIGNMENT
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT --________ Custodian ____________
(Cust) (Minor)
under Uniform Gifts to Minors Act______________________
(State)
Additional abbreviations may also be used though not in the above list.
_____________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[Please insert Social Security or other identifying number of assignee]
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing __________________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written on the face of the within instrument in every particular, without
alteration or enlargement, or any change whatever.
8
<PAGE>
EXHIBIT 5.1
Rogers & Wells
200 Park Avenue
New York, NY 10166
(212) 878-8000
Fax: (212) 878-8375
Washington, D.C. . London . Paris . Frankfurt . Hong Kong
November 12, 1997
Hearst-Argyle Television, Inc.
888 Seventh Avenue
New York, New York 10106
Re: Hearst-Argyle Television, Inc.
Registration Statement on Form S-3 (File No. 333-36659)
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Hearst-Argyle Television, Inc., a
Delaware corporation (the "Company"), in connection with the issuance and sale
by the Company to the underwriters named below of (i) $125 million aggregate
principal amount of the Company's 7% Senior Notes due 2007 and $175 million
aggregate principal amount of the Company's 7-1/2% Debentures due 2027
(collectively, the "Debt Securities") and (ii) 4,000,000 shares of the
Company's Series A Common Stock, par value $.01 per share (the "Equity
Securities"). The offering of the Debt Securities and the Equity Securities is
being made pursuant to the Company's Registration Statement on Form S-3 (as
amended, and including prospectus supplements filed pursuant to Rule 424 of the
Securities Act of 1933, as amended, the "Registration Statement") which relates
to the offer and sale by the Company from time to time of up to 11,500,000
shares of its Series A Common Stock, par value $.01 per share, and up to
$600,000,000 aggregate principal amount of debt securities.
The Debt Securities are being sold pursuant to that certain Terms
Agreement, dated November 7, 1997, which incorporates the terms and conditions
of the Underwriting Agreement (the "Underwriting Agreement") among Credit
Suisse First Boston Corporation, J.P. Morgan Securities Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as the underwriters named in such Terms
Agreement (the "Debt Underwriters"), and the Company, dated as of November 7,
1997 (such Terms Agreement, including the terms and conditions of
<PAGE>
Hearst-Argyle Television, Inc. 2 November 12, 1997
the Underwriting Agreement incorporated therein, is referred to as the "Debt
Terms Agreement"), relating to the purchase by the Debt Underwriters, severally
and not jointly, from the Company, subject to the Debt Terms Agreement, of the
Debt Securities. It is contemplated that the Debt Securities will be issued
pursuant to an indenture (the "Indenture"), dated November 13, 1997 between the
Company and Bank of Montreal Trust Company, as Trustee (the "Trustee"), as
supplemented by that certain First Supplemental Indenture, dated November 13,
1997 between the Company and the Trustee (together, the "Indenture").
Of the Equity Securities, (i) 3,200,000 shares (the "U.S. Equity
Securities") are being sold pursuant to that certain Terms Agreement, dated
November 5, 1997, which incorporates the terms and conditions of the Purchase
Agreement (the "Purchase Agreement") among Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Credit Suisse First Boston Corporation, J.P. Morgan
Securities Inc. and Morgan Stanley & Co. Incorporated as representatives of the
underwriters named in such Terms Agreement (the "Equity Underwriters") and the
Company, dated as of November 5, 1997 (such Terms Agreement, including the
terms and conditions of the Purchase Agreement incorporated therein, is
referred to as the "Equity Terms Agreement"), relating to the purchase by the
Equity Underwriters, severally and not jointly, from the Company, subject to
the Terms Agreement, of the U.S. Equity Securities and (ii) 800,000 shares (the
"International Equity Securities") are being sold pursuant to that certain
International Purchase Agreement (the "International Purchase Agreement"),
dated November 5, 1997 among Merrill Lynch International, Credit Suisse First
Boston (Europe) Limited, J.P. Morgan Securities Ltd., Morgan Stanley & Co.
International Limited and Nesbitt Burns Securities Inc. as underwriters under
the International Purchase Agreement (the "International Managers"), relating
to the purchase by the International Managers, severally and not jointly, from
the Company, subject to the International Purchase Agreement, of the
International Equity Securities.
We have examined such documents, records, and matters of law as we
have deemed necessary for purposes of this opinion. In examining all such
documents, we have assumed the genuineness of all signatures, the authenticity
of all documents purporting to be originals, and the conformity to the
respective originals of all documents purported to be copies. In rendering the
foregoing opinions, we have relied as to certain factual matters upon
certificates of officers of the Company, and we have not independently verified
the accuracy of the statements contained therein. Based on such examination
and on the assumptions set forth below, we are of the opinion that:
1. The Debt Securities have been duly authorized by the Company
and, when executed, authenticated, issued and delivered in
the manner provided in the Indenture against payment of the
consideration therefor specified in the Debt 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
<PAGE>
Hearst-Argyle Television, Inc. 3 November 12, 1997
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).
2. The U.S. Equity Securities and the International Equity
Securities to be sold by the Company have been duly
authorized by the Company for issuance and sale pursuant to
the Equity Terms Agreement and the International Purchase
Agreement, respectively. The U.S. Equity Securities to be
sold by the Company, when issued and delivered by the Company
pursuant to the Equity Terms Agreement against payment of the
consideration therefor specified in such Equity Terms
Agreement, and the International Equity Securities to be sold
by the Company, when issued and delivered by the Company
pursuant to the International Purchase Agreement against
payment of the consideration therefor specified in such
International Purchase Agreement, will be validly issued,
fully paid and nonassessable.
In rendering the foregoing opinions, our examination of matters of
law has been limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware, and the federal laws of the United
States of America, as in effect on the date hereof.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Form 8-K on
November 13, 1997 and incorporation by reference into the Registration
Statement, and should not be quoted in whole or in part or otherwise be
referred to, nor otherwise be filed with or furnished to any governmental
agency or other person or entity, without our express prior written consent.
We hereby consent to the filing of this opinion as an exhibit to
the Form 8-K and incorporation by reference into the Registration Statement and
to the use of our name therein under the caption "Legal Matters."
Very truly yours,
/s/ Rogers & Wells
<PAGE>
EXHIBIT 20.1
HEARST-ARGYLE TELEVISION ANNOUNCES PUBLIC OFFERING
OF 4.0 MILLION SHARES OF SERIES A COMMON STOCK
Thursday, November 6, 1997 09:52 AM
NEW YORK--Hearst-Argyle Television, Inc. (NASDAQ: HATV) announced today a
----
public offering under its existing shelf registration statement of 4,000,000
shares of its series A common stock at a price of $27.00 per share.
The company has also granted to the underwriters an overallotment option for
600,000 additional shares of series A common stock.
Merrill Lynch & Co. is acting as lead underwriter with Credit Suisse First
Boston, J.P. Morgan & Co. and Morgan Stanley Dean Witter as co-managers. All of
the shares are being offered by the company.
Proceeds from the offering will be used to repay existing indebtedness of the
Company.
The Hearst-Argyle television stations reach approximately 11.5 percent of U.S.
TV households and comprise the third largest non-network owned television
station group in the United States in terms of audience delivered.
Hearst-Argyle Television, Inc., based in New York City, owns and operates
network affiliated television stations WCVB-TV, the ABC affiliate in Boston;
WTAE-TV, the ABC affiliate in Pittsburgh, Penn.; WGAL-TV, the NBC affiliate in
Baltimore, Md.; WLWT-TV, the NBC affiliate in Cincinnati, Ohio; WISN-TV, the ABC
affiliate in Milwaukee, Wisc.; KMBC-TV, the ABC affiliate in Kansas City, Mo.;
KOCO-TV, the ABC affiliate in Oklahoma City, Ok; WNAC-TV, the Fox affiliate in
Providence, R.I.; WDTN-TV, the ABC affiliate in Dayton, Ohio; KITV-TV, the ABC
affiliate in Honolulu, Hawaii; WAPT-TV, the ABC affiliate in Jackson, Miss.; and
KHBS-TV, the ABC affiliate in Fort Smith, Ark., and its satellite, KHOG-TV, the
ABC affiliate in Fayetteville, Ark.
Hearst-Argyle Television also owns and operates Hearst-Argyle Television
Productions, which is engaged in the production of programming for cable
networks and broadcast stations. In addition, Hearst-Argyle Television provides
management services for WWWB-TV, the WB affiliate in Tampa, Fla.; WPBF-TV, the
ABC affiliate in West Palm Beach, Fla.; KCWB-TV, the WB affiliate in Kansas
City, Mo.; and two radio stations, WBAL-AM and WIYY-FM, Baltimore. These
managed stations, other than KCWB, which is operated through a local marketing
agreement, are owned by The Hearst Corporation, which is privately held.
In accordance with an order of the Federal Communications Commission, WNAC-TV in
Providence, R.I., will be divested because of an overlap with WCVB-TV in Boston;
and WDTN-TV in Dayton, Ohio, will be divested because of an overlap with WLWT-TV
in Cincinnati, Ohio.
<PAGE>
Hearst-Argyle Television's Series A Common Stock trades on the NASDAQ National
Market under the trading symbol "HATV."
Copies of the prospectus relating to these securities may be obtained by
contacting Merrill Lynch & Co., 250 Vesey Street, World Financial Center, North
Tower, New York, N.Y. 10285 (212/499-8415); Credit Suisse First Boston, 11
Madison Avenue, New York, N.Y. 10010 (212/325-2580); J.P. Morgan & Co., 60 Wall
Street, New York, N.Y. 10260 (212/648-0517); and Morgan Stanley Dean Witter,
1585 Broadway, New York, N.Y. 10036 (212/761-6775).
CONTACT: Hearst-Argyle Television, Inc., New York
Thomas W. Campo, 212/887-6827
2
<PAGE>
EXHIBIT 20.2
HEARST-ARGYLE TELEVISION ANNOUNCES PUBLIC OFFERING
OF $300 MILLION OF 10-YEAR SENIOR NOTES AND 30-YEAR DEBENTURES
Friday, November 7, 1997 05:36 PM
NEW YORK--Hearst-Argyle Television, Inc. (NASDAQ: HATV) announced today a
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public offering under its existing shelf registration statement of $125 million
principal amount of 7.00% Senior Notes Due 2007, priced at 99.616% of par, and
$175 million principal amount of 7.50% Debentures Due 2027, priced at 98.823% of
par.
Credit Suisse First Boston and J.P. Morgan & Co. are acting as co-lead
underwriters, and Merrill Lynch & Co. is acting as co-manager.
Proceeds from the offering will be used to repay existing indebtedness of the
Company.
The Hearst-Argyle television stations reach approximately 11.5 percent of U.S.
TV households and comprise the third largest non-network owned television
station group in the United States in terms of audience delivered.
Hearst-Argyle Television, Inc., based in New York City, owns and operates
network affiliated television stations WCVB-TV, the ABC affiliate in Boston;
WTAE-TV, the ABC affiliate in Pittsburgh, Penn.; WGAL-TV, the NBC affiliate in
Baltimore, Md.; WLWT-TV, the NBC affiliate in Cincinnati, Ohio; WISN-TV, the ABC
affiliate in Milwaukee, Wisc.; KMBC-TV, the ABC affiliate in Kansas City, Mo.;
KOCO-TV, the ABC affiliate in Oklahoma City, OK; WNAC-TV, the Fox affiliate in
Providence, R.I.; WDTN-TV, the ABC affiliate in Dayton, Ohio; KITV-TV, the ABC
affiliate in Honolulu, Hawaii; WAPT-TV, the ABC affiliate in Jackson, Miss.; and
KHBS-TV, the ABC affiliate in Fort Smith, Ark., and its satellite, KHOG-TV, the
ABC affiliate in Fayetteville, Ark.
Hearst-Argyle Television also owns and operates Hearst-Argyle Television
Productions, which is engaged in the production of programming for cable
networks and broadcast stations. In addition, Hearst-Argyle Television provides
management services for WWWB-TV, the WB affiliate in Tampa, Fla.; WPBF-TV, the
ABC affiliate in West Palm Beach, Fla.; KCWB-TV, the WB affiliate in Kansas
City, Mo.; and two radio stations, WBAL-AM and WIYY-FM, Baltimore. These
managed stations, other than KCWB, which is operated through a local marketing
agreement, are owned by The Hearst Corporation, which is privately held.
In accordance with an order of the Federal Communications Commission, WNAC-TV in
Providence, R.I., will be divested because of an overlap with WCVB-TV in Boston;
and WDTN-TV in Dayton, Ohio, will be divested because of an overlap with WLWT-TV
in Cincinnati, Ohio.
Hearst-Argyle Television's Series A Common Stock trades on the NASDAQ National
Market under the trading symbol "HATV."
<PAGE>
Copies of the prospectus relating to these securities may be obtained by
contacting Credit Suisse First Boston, 11 Madison Avenue, New York, N.Y. 10010
(212/325-2580); J.P. Morgan & Co., 60 Wall Street, New York, N.Y. 10260
(212/648-0517); and Merrill Lynch & Co., 250 Vesey Street, World Financial
Center, North Tower, New York, N.Y. 10285 (212/499-8415).
CONTACT: Hearst-Argyle Television, Inc., New York
Thomas W. Campo, 212/887-6827
2
