AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION MAY 16, 1997
REGISTRATION NOS. 333-26427 and 333-26427-01
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO.1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
<TABLE>
<CAPTION>
<S> <C> <C>
SINCLAIR BROADCAST GROUP, INC. KDSM, INC. SINCLAIR CAPITAL
(Exact name of registrant as (Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter) specified in its charter)
---------------- --------------- -----------------
MARYLAND MARYLAND DELAWARE
(State or other jurisdiction (State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization) of incorporation or organization)
---------------- --------------- -----------------
52-1494660 52-1975792 52-2026076
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
---------------- --------------- -----------------
4833 4833 6159
(Primary Standard Industrial (Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number) Classification Code Number)
</TABLE>
--------------------
2000 WEST 41ST STREET
BALTIMORE, MARYLAND 21211
(410) 467-5005
(address, including ZIP Code, and telephone number, including area code, of
registrants' principal executive offices)
--------------------
DAVID D. SMITH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SINCLAIR BROADCAST GROUP, INC.
2000 WEST 41ST STREET
BALTIMORE, MARYLAND 21211
(410) 467-5005
(Name, address, including ZIP Code, and telephone number, including area
code, of agent for service)
--------------------
Copies to:
George P. Stamas, Esq. Steven A. Thomas, Esq.
Wilmer, Cutler & Pickering Thomas & Libowitz, P.A.
2445 M Street, N.W. 100 Light Street -- Suite 1100
Washington, D.C. 20037 Baltimore, MD 21202
(202) 663-6000 (410) 752-2468
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after the effective date of this Registration
Statement.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
If any of the Securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1993 check the following box. [X]
--------------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles of Amendment and Restatement and By-Laws of the Company state
that the Company shall indemnify, and advance expenses to, its directors and
officers whether serving the Company or at the request of another entity to the
fullest extent permitted by and in accordance with Section 2-418 of the Maryland
General Corporation Law. Section 2-418 contains certain provisions which
establish that a Maryland corporation may indemnify any director or officer made
party to any proceeding by reason of service in that capacity, against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by the director or officer in connection with such proceeding unless it
is established that the director's or officer's act or omission was material to
the matter giving rise to the proceeding and the director or officer (i) acted
in bad faith or with active and deliberate dishonesty; (ii) actually received an
improper personal benefit in money, property or services; or (iii) in the case
of a criminal proceeding, had reasonable cause to believe that his act was
unlawful. However, if the proceeding was one by or in the right of the
corporation, indemnification may not be made if the director or officer is
adjudged to be liable to the corporation. The statute also provides for
indemnification of directors and officers by court order.
Section 12 of Article II of the Amended By-Laws of Sinclair Broadcast Group,
Inc. provides as follows:
A director shall perform his duties as a director, including his duties as a
member of any Committee of the Board upon which he may serve, in good faith, in
a manner he reasonably believes to be in the best interests of the Corporation,
and with such care as an ordinarily prudent person in a like position would use
under similar circumstances. In performing his duties, a director shall be
entitled to rely on information, opinions, reports, or statements, including
financial statements and other financial data, in each case prepared or
presented by:
(a) one or more officers or employees of the Corporation whom the director
reasonably believes to be reliable and competent in the matters
presented;
(b) counsel, certified public accountants, or other persons as to matters
which the director reasonably believes to be within such person's
professional or expert competence; or
(c) a Committee of the Board upon which he does not serve, duly designated
in accordance with a provision of the Articles of Incorporation or the
By-Laws, as to matters within its designated authority, which
Committee the director reasonably believes to merit confidence.
A director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause such reliance
described above to be unwarranted. A person who performs his duties in
compliance with this Section shall have no liability by reason of being or
having been a director of the Corporation.
The Company has also entered into indemnification agreements with certain
officers and directors which provide that the Company shall indemnify and
advance expenses to such officers and directors to the fullest extent permitted
by applicable law in effect on the date of the agreement, and to such greater
extent as applicable law may thereafter from time to time permit. Such
agreements provide for the advancement of expenses (subject to reimbursement if
it is ultimately determined that the officer or director is not entitled to
indemnification) prior to the disposition of any claim or proceeding.
II-1
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------
3.1** Amended and Restated Trust Agreement, dated as of March 12, 1997
among KDSM, Inc., First Union National Bank of Maryland, First
Union Bank of Delaware, David D. Smith and David B. Amy
3.2** Amended and Restated Articles of Incorporation of Sinclair
Broadcast Group, Inc., as amended as of March 11, 1997
3.3 Amended By-Laws of Sinclair Broadcast Group, Inc., as amended as
of May 31, 1995 (1)
3.4** Articles of Incorporation of KDSM, Inc. as of April 22, 1996
3.5** By-Laws of KDSM, Inc.
4.1** Indenture, dated as of March 12, 1997 among KDSM, Inc., Sinclair
Broadcast Group, Inc. and First Union National Bank of Maryland
4.2** Registration Rights Agreement, dated as of March 5, 1997 among
Sinclair Broadcast Group, Inc., KDSM, Inc., Sinclair Capital,
Smith Barney Inc. and Chase Securities Inc.
4.3** Pledge and Security Agreement dated as of March 12, 1997 between
KDSM, Inc. and First Union National Bank of Maryland
4.4 Form of 11 5/8 % High Yield Trust Offered Preferred Securities of
Sinclair Capital
4.5 Form of 11 5/8 % Senior Debentures due 2009 of KDSM, Inc.
(included in Exhibit 4.1)
4.6 Form of Parent Guarantee Agreement between Sinclair Broadcast
Group, Inc. and First Union National Bank of Maryland
5.1* Opinion of Wilmer, Cutler & Pickering as to the legality of the
11 5/8 % Senior Debentures due 2009 of KDSM, Inc., the 12 5/8 %
Series C Preferred Stock of Sinclair Broadcast Group, Inc., and
Parent Guarantee and the Parent Debenture Guarantee of Sinclair
Broadcast Group, Inc.
5.2* Opinion of Thomas & Libowitz as to the legality of the 11 5/8 %
Senior Debentures due 2009 of KDSM, Inc., the 12 5/8 % Series C
Preferred Stock of Sinclair Broadcast Group, Inc., and the Parent
Guarantee and the Parent Debenture Guarantee of Sinclair
Broadcast Group, Inc.
5.3* Opinion of Richards, Layton & Finger, as to the legality of the
11 5/8 % High Yield Trust Offered Preferred Securities of
Sinclair Capital
8.1* Opinion of Wilmer, Cutler & Pickering as to certain federal
income tax matters
12.1* Calculation of Ratio of Earnings to Fixed Charges of Sinclair
Broadcast Group, Inc.
23.1* Consent of Arthur Andersen LLP, independent certified public
accountants
23.2* Consent of KPMG Peat Marwick LLP, independent certified public
accountants
23.3* Consent of Price Waterhouse, independent accountants, relating to
financial statements of Kansas City TV 62 Limited Partnership
23.4* Consent of Price Waterhouse, independent accountants, relating to
financial statements of Cincinnati TV 64 Limited Partnership
23.5* Consent of Ernst & Young LLP, independent certified public
accountants
24 Powers of Attorney (Included in the signature pages to the
Registration Statement)
II-2
<PAGE>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------
25.1* Form T-1 Statement of Eligibility of First Union National Bank of
Maryland to act as trustee under the Amended and Restated Trust
Agreement
25.2* Form T-1 Statement of Eligibility of First Union National Bank of
Maryland to act as trustee under the Indenture
25.3* Form T-1 Statement of Eligibility of First Union National Bank of
Maryland to act as trustee under the Parent Guarantee Agreement
27* Financial Data Schedule of KDSM, Inc.
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
- -----
* To be filed by amendment.
** Previously filed
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1, No. 33-90682.
ITEM 22. UNDERTAKINGS
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Each of the undersigned registrants also hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
Each of the undersigned registrants hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
Each of the undersigned registrants hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
II-3
<PAGE>
424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Each of the undersigned registrants hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration statement,
by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuers undertake that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
Each of the registrants undertakes that every prospectus (i) that is
filed pursuant to the immediately preceding paragraph, or (ii) that
purports to meet the requirements of section 10(a)(3) of the Act and is
used in connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement and will
not be used until such amendment is effective, and that, for purposes of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants
certify that they have reasonable grounds to believe that they meet all of the
requirements for filing on Form S-4 and have duly caused this Amendment to the
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Baltimore, Maryland on the 16th day of
May, 1997.
SINCLAIR BROADCAST GROUP, INC.
By: *
-------------------------------------
David D. Smith
Chief Executive Officer and President
KDSM, INC.
By: *
-------------------------------------
David D. Smith
President and Director
SINCLAIR CAPITAL
By: *
-------------------------------------
David D. Smith
Administrative Trustee
We, the undersigned officers and directors of Sinclair Broadcast Group, Inc.
and KDSM, Inc. and administrative trustees of Sinclair Capital hereby severally
constitute David B. Amy our true and lawful attorney with full power to sign for
us and in our name in the capacities indicated below, any and all amendments to
this registration statement on Form S-4 filed by Sinclair Broadcast Group, Inc.,
KDSM, Inc. and Sinclair Capital with the Securities and Exchange Commission, and
generally to do all such things in our name and behalf in such capacities to
enable Sinclair Broadcast Group, Inc., KDSM, Inc. and Sinclair Capital to comply
with the provision of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, and we hereby ratify and
confirm our signatures as they may be signed by our said attorney to any and all
such amendments.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
- --------------------------- -------------------------------------------- ------------------
* Chairman Of The Board, May 16, 1997
- -------------------------- Chief Executive Officer, President And
David D. Smith Director (Principal Executive Officer),
Sinclair Broadcast Group, Inc.
President and Director
(Principal Executive Officer),
KDSM, Inc.
Administrative Trustee
(Principal Executive Officer),
Sinclair Capital
II-5
<PAGE>
SIGNATURE TITLE DATE
- --------------------------- -------------------------------------------- ------------------
<S> <C> <C>
/s/ DAVID B. AMY Chief Financial Officer May 16, 1997
- --------------------------- (Principal Financial and Accounting
David B. Amy Officer), Sinclair Broadcast Group, Inc.
Vice President and Director
(Principal Financial and Accounting
Officer), KDSM, Inc.
Administrative Trustee
(Principal Financial and Accounting
Officer), Sinclair Capital
* Director, Sinclair Broadcast Group, Inc. May 16, 1997
- ---------------------------
Frederick G. Smith.
* Director, Sinclair Broadcast Group, Inc. May 16, 1997
- ---------------------------
J. Duncan Smith
* Director, Sinclair Broadcast Group, Inc. May 16, 1997
- ---------------------------
Robert E. Smith
* Director, Sinclair Broadcast Group, Inc. May 16, 1997
- ---------------------------
Basil A. Thomas
* Director, Sinclair Broadcast Group, Inc. May 16, 1997
- ---------------------------
William E. Brock
* Director, Sinclair Broadcast Group, Inc. May 16, 1997
- ---------------------------
Lawrence E. McCanna
</TABLE>
* Signed on behalf of the above-listed officers and directors by their
attorney-in-fact.
By: /s/ David B. Amy
-----------------------
David B. Amy
Attorney-in-Fact
II-6
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------
3.1** Amended and Restated Trust Agreement, dated as of March 12, 1997
among KDSM, Inc., First Union National Bank of Maryland, First
Union Bank of Delaware, David D. Smith and David B. Amy
3.2** Amended and Restated Articles of Incorporation of Sinclair
Broadcast Group, Inc., as amended as of March 11, 1997
3.3 Amended By-Laws of Sinclair Broadcast Group, Inc., as amended as
of May 31, 1995 (1)
3.4** Articles of Incorporation of KDSM, Inc. as of April 22, 1996
3.5** By-Laws of KDSM, Inc.
4.1** Indenture, dated as of March 12, 1997 among KDSM, Inc., Sinclair
Broadcast Group, Inc. and First Union National Bank of Maryland
4.2** Registration Rights Agreement, dated as of March 5, 1997 among
Sinclair Broadcast Group, Inc., KDSM, Inc., Sinclair Capital,
Smith Barney Inc. and Chase Securities Inc.
4.3** Pledge and Security Agreement dated as of March 12, 1997 between
KDSM, Inc. and First Union National Bank of Maryland
4.4 Form of 11 5/8 % High Yield Trust Offered Preferred Securities of
Sinclair Capital
4.5 Form of 11 5/8 % Senior Debentures due 2009 of KDSM, Inc.
(included in Exhibit 4.1)
4.6 Form of Parent Guarantee Agreement between Sinclair Broadcast
Group, Inc. and First Union National Bank of Maryland
5.1* Opinion of Wilmer, Cutler & Pickering as to the legality of the
11 5/8 % Senior Debentures due 2009 of KDSM, Inc., the 12 5/8 %
Series C Preferred Stock of Sinclair Broadcast Group, Inc., and
Parent Guarantee and the Parent Debenture Guarantee of Sinclair
Broadcast Group, Inc.
5.2* Opinion of Thomas & Libowitz as to the legality of the 11 5/8 %
Senior Debentures due 2009 of KDSM, Inc., the 12 5/8 % Series C
Preferred Stock of Sinclair Broadcast Group, Inc., and the Parent
Guarantee and the Parent Debenture Guarantee of Sinclair
Broadcast Group, Inc.
5.3* Opinion of Richards, Layton & Finger, as to the legality of the
11 5/8 % High Yield Trust Offered Preferred Securities of
Sinclair Capital
8.1* Opinion of Wilmer, Cutler & Pickering as to certain federal
income tax matters
12.1* Calculation of Ratio of Earnings to Fixed Charges of Sinclair
Broadcast Group, Inc.
23.1* Consent of Arthur Andersen LLP, independent certified public
accountants
23.2* Consent of KPMG Peat Marwick LLP, independent certified public
accountants
23.3* Consent of Price Waterhouse, independent accountants, relating to
financial statements of Kansas City TV 62 Limited Partnership
23.4* Consent of Price Waterhouse, independent accountants, relating to
financial statements of Cincinnati TV 64 Limited Partnership
23.5* Consent of Ernst & Young LLP, independent certified public
accountants
24 Powers of Attorney (Included in the signature pages to the
Registration Statement)
<PAGE>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------
25.1* Form T-1 Statement of Eligibility of First Union National Bank of
Maryland to act as trustee under the Amended and Restated Trust
Agreement
25.2* Form T-1 Statement of Eligibility of First Union National Bank of
Maryland to act as trustee under the Indenture
25.3* Form T-1 Statement of Eligibility of First Union National Bank of
Maryland to act as trustee under the Parent Guarantee Agreement
27* Financial Data Schedule of KDSM, Inc.
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
- -----
* To be filed by amendment.
** Previously filed
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1, No. 33-90682.
Exhibit 4.4
IF THIS IS A GLOBAL SECURITY, INSERT -- THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE TRUST AGREEMENT AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT.
IF DTC IS ACTING AS THE DEPOSITARY, INSERT -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH 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, CEDE & CO., HAS AN INTEREST
HEREIN.
Certificate Number Number of Preferred Securities
--- -------
CUSIP NO.
(829230200)
Form of Certificate Evidencing Preferred Securities
of
SINCLAIR CAPITAL
11 5/8% High Yield Trust Originated Preferred Securities
(liquidation amount U.S. $100 per Preferred Security)
Sinclair Capital, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that _________
(the "Holder") is the registered owner of _______ preferred securities of the
Trust representing a beneficial interest in the assets of the
<PAGE>
Trust and designated the Sinclair Capital 11 5/8% High Yield Trust Originated
Preferred Securities (liquidation amount U.S. $100 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.05 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of March 12, 1997, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of Preferred Securities as set forth therein. The Preferred Securities
are solely payable by the Trust from the Trust Property (as defined in the Trust
Agreement). The holder of this certificate is entitled to the benefits of the
Parent Guarantee Agreement entered into by Sinclair Broadcast Group, Inc., a
Maryland corporation, and First Union National Bank of Maryland, as guarantee
trustee, dated as of _____ __, 1997 (the "Guarantee") to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee
Agreement to the Holder of this certificate without charge upon written request
to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to the benefits
thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this __th day of _____, 1997.
Sinclair Capital
By:___________________________
Administrative Trustee
By:___________________________
Administrative Trustee
Registered and Countersigned by
First Union National Bank of Maryland,
as Securities Registrar
By:________________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Exhibit 4.6
PARENT GUARANTEE AGREEMENT
Between
Sinclair Broadcast Group, Inc.
(as Guarantor of Preferred Securities)
and
First Union National Bank of Maryland
(as Trustee)
dated as of
______ __, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................... 1
SECTION 1.1. Definitions........................................... 1
ARTICLE II TRUST INDENTURE ACT................................... 7
SECTION 2.1. Trust Indenture Act; Application............... 7
SECTION 2.3. Reports by the Trustee......................... 8
SECTION 2.4. Periodic Reports to Trustee.................... 8
SECTION 2.5. Evidence of Compliance with Conditions
Precedent...................................... 8
SECTION 2.6. Event of Default; Notice; Waiver............... 8
SECTION 2.7. Conflicting Interests.......................... 9
ARTICLE III POWERS, DUTIES AND RIGHTS OF TRUSTEE.................. 9
SECTION 3.1. Powers and Duties of the Trustee............... 9
SECTION 3.2. Certain Rights of Trustee...................... 11
ARTICLE IV TRUSTEE............................................... 13
SECTION 4.1. Trustee; Eligibility........................... 13
SECTION 4.2. Appointment, Removal and Resignation of
Trustee........................................ 13
ARTICLE V GUARANTEE............................................. 14
SECTION 5.1. Guarantee...................................... 14
SECTION 5.2. Waiver of Notice and Demand.................... 14
SECTION 5.3. Obligations Not Affected....................... 15
SECTION 5.4. Rights of Holders.............................. 16
SECTION 5.5. Guarantee of Payment........................... 16
SECTION 5.6. Subrogation.................................... 16
SECTION 5.7. Independent Obligations........................ 17
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION............. 17
SECTION 6.1. Limitation of Transactions..................... 17
SECTION 6.2. Subordination.................................. 17
ARTICLE VII TERMINATION........................................... 18
SECTION 7.1. Termination.................................... 18
ARTICLE VIII MISCELLANEOUS......................................... 18
SECTION 8.1. Successors and Assigns......................... 18
SECTION 8.2. Amendments..................................... 18
SECTION 8.3. Notices........................................ 18
<PAGE>
SECTION 8.4. Benefit........................................ 20
SECTION 8.5. No Benefit to Creditors of Trust............... 20
SECTION 8.6. Interpretation................................. 20
SECTION 8.7. Governing Law.................................. 21
<PAGE>
PARENT GUARANTEE AGREEMENT
This PARENT GUARANTEE AGREEMENT (the "Parent Guarantee Agreement"),
dated as of _____ __, 1997, is executed and delivered by Sinclair Broadcast
Group, Inc., a Maryland corporation (the "Guarantor"), and First Union National
Bank of Maryland, as trustee (the "Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of Sinclair Capital, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (as
amended or supplemented from time to time in accordance with its terms, the
"Trust Agreement"), dated as of March 12, 1997, among the Trustees of the Issuer
named therein, KDSM, Inc., as Depositor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing as of the date hereof $200,000,000 aggregate Liquidation Value of its 11
5/8% High Yield Trust Offered Preferred Securities, (the "Preferred Securities")
representing undivided beneficial interests in the assets of the Issuer and
having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the KDSM Senior Debentures of the
Depositor which will be deposited with the Issuer as trust assets;
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree to
pay in full on a junior subordinated basis, to the extent set forth herein, the
Guarantee Payments (as defined herein) to the Holders of the Preferred
Securities and to make certain other payments on the terms and conditions set
forth herein; and
WHEREAS, the creditors of the Issuer shall not have any benefits from
this Parent Guarantee Agreement.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder thereof, which payment the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Parent
Guarantee Agreement for the benefit of the Holders from time to time of the
Preferred
ARTICLE I
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DEFINITIONS
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SECTION 1.1. Definitions. As used in this Parent Guarantee Agreement,
the terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
<PAGE>
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person,
(ii) any other Person that owns, directly or indirectly, 5% or more of
such Person's Equity Interest or any officer or director of any such
Person or other Person or, with respect to any natural Person, any
Person having a relationship with such Person or other Person by blood,
marriage or adoption not more remote than first cousin or (iii) any
other Person 10% or more of the voting Equity Interests of which are
beneficially owned or held directly or indirectly by 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 ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Capital Lease Obligation" means any obligation under any
capital lease of real or personal property which, in accordance with
GAAP, has been recorded as a capitalized lease obligation.
"Disqualified Equity Interests" means any Equity Interests
that, either by their terms or by the terms of any security into which
they are convertible or exchangeable or otherwise, are or upon the
happening of an event or passage of time would be required to be
redeemed prior to the stated maturity, if any, of the Preferred
Securities or are redeemable at the option of the holder thereof at any
time prior to any such stated maturity, if any, or are convertible into
or exchangeable for debt securities at any time prior to any such
stated maturity, if any, at the option of the holder thereof.
"Equity Interest" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) corporate
stock or other equity participations, including partnership interests,
whether general or limited, of such Person, including any preferred
Equity Interests.
"Event of Default" shall occur upon the failure of the
Guarantor to perform any of its obligations under this Parent Guarantee
Agreement.
"GAAP" means generally accepted accounting principles in the
United States, consistently applied, which are in effect on the date
the 1993 Notes were issued.
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<PAGE>
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness contained herein and guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or purchase
such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (ii) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss,
(iii) to supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services without
requiring that such property be received or such services be rendered),
(iv) to maintain working capital or equity capital of the debtor, or
otherwise to maintain the net worth, solvency or other financial
condition of the debtor or (v) otherwise to assure a creditor against
loss; provided that the term "guarantee" shall not include endorsements
for collection or deposit, in either case in the ordinary course of
business.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities: (i) any accrued and unpaid distributions on the Preferred
Securities that have been theretofore properly declared on the
Preferred Securities from funds of the Trust legally available therefor
in accordance with the terms of the Trust Agreement, (ii) the
redemption price payable with respect to any Preferred Securities
called for redemption by the Trust out of funds legally available
therefor in accordance with the terms of the Trust Agreement and (iii)
upon a voluntary or involuntary dissolution, winding-up or termination
of the Trust (other than in connection with a redemption of all of the
Preferred Securities), the payment of an amount if, when, and to the
extent holders of the Preferred Securities are lawfully entitled to
payment thereof from the Trust equal to the lesser of (a) the full
liquidation preference plus accumulated and unpaid dividends to which
the holders of the Preferred Securities are lawfully entitled, and (b)
the amount of the Trust's legally available assets remaining after
satisfaction of all claims of other parties which, as a matter of law,
are prior to those of the holders of the Preferred Securities (in
either case, the "Liquidation Distribution").
"Guarantor" means Sinclair Broadcast Group, Inc. and its
successors, assigns, receivers, trustees and representatives as
provided in Section 8.1 hereunder.
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"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however,
that in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of
the Guarantor.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services, excluding any
trade payables and other accrued current liabilities arising in the
ordinary course of business, but including, without limitation, all
obligations, contingent or otherwise, of such Person in connection with
any letters of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities and in connection
with any agreement to purchase, redeem, exchange, convert or otherwise
acquire for value any Equity Interests of such Person, or any warrants,
rights or options to acquire such Equity Interests, now or hereafter
outstanding, (ii) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (iii) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even if the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property),
but excluding trade payables arising in the ordinary course of
business, (iv) all obligations under Interest Rate Agreements of such
Person, (v) all Capital Lease Obligations of such Person, (vi) all
Indebtedness referred to in clauses (i) through (v) above of other
Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien,
upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all
Disqualified Equity Interests valued at the greater of their voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends, and (ix) any amendment, supplement, modification, deferral,
renewal, extension, refunding or refinancing of any liability of the
types referred to in clauses (i) through (viii) above.
"Indenture" means the Indenture dated as of March 12, 1997,
among KDSM, Inc., the Guarantor and First Union National Bank of
Maryland, as trustee, as amended and supplemented from time to time in
accordance with its terms.
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<PAGE>
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by the Guarantor and one or more
financial institutions: interest rate protection agreements (including,
without limitation, interest rate swaps, caps, floors, collars and
similar agreements) and/or other types of interest rate hedging
agreements from time to time.
"KDSM, Inc." means KDSM, Inc., a Maryland corporation.
"KDSM Senior Debentures" means the 11 5/8% Senior Debentures
due 2009 issued by KDSM, Inc. pursuant to the Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other
encumbrance upon or with respect to any property of any kind (including
any conditional sale or other title retention agreement, any leases in
the nature thereof, and any agreement to give any security interest),
real or personal, movable or immovable, now owned or hereafter
acquired.
"Liquidation Value" means the stated Liquidation Value of $100
per Trust Security.
"Majority in Liquidation Value of the Preferred Securities"
means a vote by Holder(s) of Preferred Securities, voting separately as
a class, of at least a majority in Liquidation Value of all outstanding
Preferred Securities.
"1993 Notes" means the Guarantors' 10% Senior Subordinated
Notes due 2003.
"Officers' Certificate" means with respect to any Person a
certificate signed by (i) the Chairman, a Vice Chairman, the Chief
Executive Officer, the President, a Vice President or the Treasurer of
such Person and (ii) the Secretary or an Assistant Secretary of such
Person, and delivered to the Trustee; provided, however, that such
certificate may be signed by two of the officers or directors listed in
clause (i) above in lieu of being signed by one of such officers or
directors listed in such clause (i) and one of the officers listed in
clause (ii) above. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Parent
Guarantee Agreement shall include:
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<PAGE>
(a) a statement that each officer or director signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer or director in
rendering the Officers' Certificate;
(c) a statement that each such officer or director has made
such examination or investigation as, in such officer's or director's
opinion, is necessary to enable such officer or director 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
officer or director, such condition or covenant has been complied with.
"Parent Preferred" means the shares of Series C Preferred
Stock, par value $.01 per share, liquidation value of $100 per share,
issued by the Guarantor.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Responsible Officer" means, with respect to the Trustee, any
vice-president, any assistant vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust
officer or assistant trust officer or any other officer of the
Corporate Trust Department 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
that officer's knowledge of and familiarity with the particular
subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939, as so
amended.
"Trustee" means the First Union National Bank of Maryland
until a Successor Trustee has been appointed and
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<PAGE>
has accepted such appointment pursuant to the terms of this Parent
Guarantee Agreement and thereafter means each such Successor Trustee.
ARTICLE II
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TRUST INDENTURE ACT
-------------------
SECTION 2.1. Trust Indenture Act; Application.
As of the date hereof,
(a) this Parent Guarantee Agreement shall, as a matter of contract law,
be subject to the provisions of the Trust Indenture Act that are required to be
part of this Parent Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Parent Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2. Lists of Holders of Securities.
(a) To the extent not available to the Trustee, the Guarantor shall
furnish or cause to be furnished to the Trustee (a) quarterly, not later than
March 15, June 15, September 15 and December 15 in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders of the Preferred Securities ("List of Holders") as of a date not more
than 15 days prior to the delivery thereof as required by the Trustee and (b) at
such other times as the Trustee may reasonably request in writing, within 30
days after the receipt by the Guarantor of any such request, a List of Holders
as of a date not more than 15 days prior to the time such list is furnished;
provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Trustee by the Guarantor. The Trustee may destroy
any List of Holders previously given to it on receipt of a new List of Holders.
(b) The Trustee shall comply with the obligations set forth under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act whether or not the
Trust Indenture Act is then applicable to this Parent Guarantee Agreement, and
such provisions are hereby incorporated by reference herein.
SECTION 2.3. Reports by the Trustee. Within 60 days after May 15 of
each year, the Trustee shall provide to the Holders of the Preferred Securities
such reports as are required by Section
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<PAGE>
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act whether or not the Trust Indenture Act
is then applicable to this Parent Guarantee Agreement, and such provisions are
hereby incorporated by reference herein. The Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act whether or not the
Trust Indenture Act is then applicable to this Parent Guarantee Agreement, and
such provisions are hereby incorporated by reference herein.
SECTION 2.4. Periodic Reports to Trustee. The Guarantor shall provide
to the Trustee such documents, reports and information as are required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act whether or
not the Trust Indenture Act is then applicable to this Parent Guarantee
Agreement, and such provisions are hereby incorporated by reference herein.
SECTION 2.5. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Trustee such evidence of compliance with any
conditions precedent provided for in this Parent Guarantee Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6. Event of Default; Notice; Waiver.
(a) The Trustee shall, within 90 days after the occurrence of an Event
of Default, transmit by mail, first class postage prepaid, to the Holders of the
Preferred Securities, notices of all Events of Default known to the Trustee,
unless such defaults have been cured before the giving of such notice, provided
that the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities.
(b) The holders of a Majority in Liquidation Value of the Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default under this Parent Guarantee
Agreement and its consequences. Upon such waiver, any such Event of Default
shall cease to exist and any such Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Parent Guarantee Agreement,
but no such waiver shall extend to any subsequent or
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<PAGE>
other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7. Conflicting Interests. The Trust Agreement shall be deemed
to be specifically described in this Parent Guarantee Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
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POWERS, DUTIES AND RIGHTS OF TRUSTEE
------------------------------------
SECTION 3.1. Powers and Duties of the Trustee.
(a) This Parent Guarantee Agreement shall be held by the Trustee for
the benefit of the Holders of the Preferred Securities, and the Trustee shall
not transfer this Parent Guarantee Agreement to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.4(iv) or
to a Successor Trustee on acceptance by such Successor Trustee of its
appointment to act as Successor Trustee. The right, title and interest of the
Trustee shall automatically vest in any Successor Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Trustee.
(b) If an Event of Default has occurred and is continuing, the Trustee
shall enforce this Parent Guarantee Agreement for the benefit of the Holders of
the Preferred Securities.
(c) The Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Parent Guarantee Agreement, and no implied covenants against the Trustee shall
be read into this Parent Guarantee Agreement. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Trustee shall exercise such of the rights and powers vested in it by this Parent
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Parent Guarantee Agreement 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) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
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(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Parent
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Parent Guarantee Agreement;
and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Parent
Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(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 Liquidation Value of
the Preferred Securities 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
Parent Guarantee Agreement; and
(iv) no provision of this Parent Guarantee Agreement shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Parent Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Trustee may rely and shall be fully 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, sent or presented by the proper party or parties;
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<PAGE>
(ii) any direction or act of the Guarantor contemplated by
this Parent Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Parent Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters 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 accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; and the Trustee shall have the right at
any time to seek instructions concerning the administration of this
Parent Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Parent Guarantee Agreement
at the request or direction of any Holder, unless such Holder shall
have provided to the Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the Trustee,
against the costs, expenses (including attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Trustee;
(vi) 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 Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) 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
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(viii) whenever in the administration of this Parent Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders of the Preferred Securities, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Parent Guarantee Agreement shall be deemed to
impose any duty or obligation on the Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Trustee shall be construed to be
a duty.
(c) The Trustee hereunder shall be entitled to fees and indemnity as
Trustee under this Parent Guarantee Agreement on the same terms as those set
forth in Section 8.06(2) and (3) of the Trust Agreement except that such
obligations will be those of the Guarantor and not the Depositor (as defined in
the Trust Agreement).
ARTICLE IV
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TRUSTEE
-------
SECTION 4.1. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least $250 million U.S. dollars ($250,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such
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corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Trustee shall cease to be eligible to so act
under Section 4.1(a), the Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(d).
(c) The Trustee and the Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act whether or not the Trust
Indenture Act is then applicable to this Parent Guarantee Agreement, and such
provisions are hereby incorporated by reference herein.
SECTION 4.2. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.2(c), the Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) Subject to Section 4.2(c), the Trustee may be removed at any time
by Act of the Holders of a Majority in Liquidation Value of the Preferred
Securities, delivered to the Trustee and to the Guarantor.
(c) The Trustee shall not be removed pursuant to Section 4.2(a) or (b)
until a Successor Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Trustee and delivered to the
Guarantor.
(d) The Trustee appointed to office shall hold office until a Successor
Trustee shall have been appointed or until its removal or registration. The
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(e) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery to the
Guarantor of an instrument of resignation, the resigning Trustee may petition
any court of competent jurisdiction for appointment of a Successor Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Trustee.
(f) No Trustee shall be liable for the acts or omissions to act of any
of any Successor Trustee.
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ARTICLE V
---------
GUARANTEE
---------
SECTION 5.1. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim which the Issuer may have or assert
other than the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied, in the Guarantor's sole discretion, by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer or any other person to pay such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Parent Guarantee Agreement and of any liability to
which it applies or may apply presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected. The obligation of the Guarantor
to make the Guarantee Payments under this Parent Guarantee Agreement shall in no
way be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of
Distributions that results from the extension of any interest payment
period on the KDSM Senior Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities,
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or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred;
(g) the making of any payments under the Parent Preferred or
the KDSM Senior Debentures; or
(h) any other circumstance (including any statute of
limitations) whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor other than the defense of
payment, it being the intent of this Section 5.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Parent Guarantee Agreement will be deposited with the Trustee to
be held for the benefit of the Holders of the Preferred Securities; (ii) the
Trustee has the right to enforce this Parent Guarantee Agreement on behalf of
the Holders of the Preferred Securities; (iii) the Holders of a Majority in
Liquidation Value of the Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee in respect of this Parent Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Parent Guarantee Agreement; and (iv)
if the Trustee fails to enforce this Parent Guarantee Agreement, any Holder of
the Preferred Securities may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Parent Guarantee Agreement, without
first instituting a legal proceeding against the Issuer, the Trustee or any
other person or entity. The Guarantor waives any right or remedy to require that
any action be brought first against the Issuer or any Person before proceeding
directly against the Guarantor.
15
<PAGE>
SECTION 5.5. Guarantee of Payment. This Parent Guarantee Agreement
creates a guarantee of payment of the Guarantee Payments to the limited extent
described in Section 5.1 and not of collection or performance of non-payment
covenants. This Parent Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication).
SECTION 5.6. Subrogation. The Guarantor shall be subrogated to any and
all rights of the Holders of Preferred Securities against the Issuer in respect
of any amounts paid to the Holders by the Guarantor under this Parent Guarantee
Agreement; provided, however, that the Guarantor shall not be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Parent Guarantee Agreement unless and until all of amounts and
preferences owing to the holders of the Preferred Securities are paid in full
and are no longer outstanding or if any amounts are due and unpaid under this
Parent Guarantee Agreement. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Parent Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
----------
LIMITATION OF TRANSACTIONS; SUBORDINATION
-----------------------------------------
SECTION 6.1. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred an Event of Default
or an event of default under the Trust Agreement, then the Guarantor shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire of make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of common
stock in connection with the satisfaction by the Guarantor of its obligations
under any employee benefit plans, or (ii) as a result of a reclassification of
the Guarantor's capital stock or the exchange or conversion of one class or
series of the Guarantor's capital stock for another class or series of the
Guarantor's capital stock) or make any guarantee payments with respect to the
foregoing.
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<PAGE>
SECTION 6.2. Subordination. This Parent Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank (i) senior to
any class or series of the Guarantor's preferred stock and common stock and (ii)
subordinate and junior in right of payment to all Indebtedness and liabilities
of the Guarantor (excluding trade payables and other liabilities that may be
made pari passu with or subordinate to the Guarantee Payments expressly by their
terms), and, therefore, no payments shall be required to be made under this
Parent Guarantee Agreement so long as there shall be a default or event of
default under any such Indebtedness or such payments will create a default or
event of default under any Indebtedness or any other liabilities of the
Guarantor (other than liabilities that are pari passu with of subordinate to the
Guarantee Payments expressly by their terms).
ARTICLE VII
-----------
TERMINATION
-----------
SECTION 7.1. Termination. This Parent Guarantee Agreement shall
terminate and be of no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Securities or (ii) the distribution of the
KDSM Senior Debentures to Holders of Preferred Securities in accordance with the
Trust Agreement upon liquidation of the Issuer or (iii) upon full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Issuer. Notwithstanding the foregoing, this Parent Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid with respect to Preferred
Securities or under this Parent Guarantee Agreement.
ARTICLE VIII
------------
MISCELLANEOUS
-------------
SECTION 8.1. Successors and Assigns. All guarantees and agreements
contained in this Parent Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor that is
permitted under Article Eight of the Indenture, the Guarantor shall not assign
its obligations hereunder.
SECTION 8.2. Amendments. Except with respect to any changes which do
not adversely affect the rights of Holders (in which case no consent of Holders
will be required) and for which an opinion of counsel of the Trustee has been
received stating that such changes do not adversely affect the rights of
Holders,
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<PAGE>
the terms of this Parent Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Value of the
Preferred Securities. The provisions of Article Six of the Trust Agreement
concerning meetings of Holders shall apply to the giving of such approval.
SECTION 8.3. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities:
Sinclair Broadcast Group, Inc.
2000 W. 41st Street
Baltimore, Maryland 21211
Attention: General Counsel
with a copy to:
Thomas & Libowitz, P.A.
100 Light Street, Suite 1100
Baltimore, Maryland 21202
Attention: Steven A. Thomas, Esq.
and a copy to:
Wilmer, Cutler & Pickering
100 Light Street
Baltimore, Maryland 21202
Attention: John B. Watkins, Esq.
(b) if given to the Issuer, in care of the Trustee, at the
Issuer's (and the Trustee's) address set forth below or such other
address as the Trustee on behalf of the Issuer may give notice of to
the Holders of the Preferred Securities:
Sinclair Capital
c/o Sinclair Broadcast Group, Inc.
2000 W. 41st Street
Baltimore, Maryland 21211
Attention: General Counsel
with a copy to:
Thomas & Libowitz, P.A.
100 Light Street, Suite 1100
Baltimore, Maryland 21202
Attention: Steven A. Thomas, Esq.
18
<PAGE>
and a copy to:
Wilmer, Cutler & Pickering
100 Light Street
Baltimore, Maryland 21202
Attention: John B. Watkins, Esq.
with a copy to:
First Union National Bank of Maryland
901 East Cary Street
Richmond, Virginia 23219
Facsimile No.: 804-788-9661
Attention: Corporate Trust Department
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit. This Parent Guarantee Agreement is solely for the
benefit of the Holders of the Preferred Securities and, subject to Section
3.1(a), is not separately transferable from the Preferred Securities.
SECTION 8.5. No Benefit to Creditors of Trust. The rights under this
Parent Guarantee Agreement will not inure to the benefit of any creditors of the
Trust for any purposes whatsoever.
SECTION 8.6. Interpretation. In this Parent Guarantee Agreement, unless
the context otherwise requires:
(a) Capitalized terms used in this Parent Guarantee Agreement
but not defined in the preamble hereto have the respective meanings
assigned to them in Section 1.1;
(b) a term defined anywhere in this Parent Guarantee Agreement
has the same meaning throughout;
(c) all references to "the Parent Guarantee Agreement" or
"this Parent Guarantee Agreement" are to this Parent Guarantee
Agreement as modified, supplemented or amended from time to time;
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<PAGE>
(d) all references in this Parent Guarantee Agreement to
Articles and Sections are to Articles and Sections of this Parent
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Parent Guarantee Agreement unless otherwise
defined in this Parent Guarantee Agreement or unless the context
otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.7. Governing Law. THIS PARENT GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
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.
THIS PARENT GUARANTEE AGREEMENT is executed as of the day and year
first above written.
SINCLAIR BROADCAST GROUP, INC., as
Guarantor
By:
----------------------------
Name: DAVID D. SMITH
Title: PRESIDENT
FIRST UNION NATIONAL BANK OF MARYLAND,
as Trustee
By:
-----------------------------
Name: Patricia A. Welling
Title:
20
<PAGE>
CROSS-REFERENCE TABLE*/
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a)....................... 4.1(a)
310(b)....................... 4.1(c), 2.7
310(c)....................... Inapplicable
311(a)....................... 2.2(b)
311(b)....................... 2.2(b)
311(c)....................... Inapplicable
312(a)....................... 2.2(a)
312(b)....................... 2.2(b)
313.......................... 2.3
314(a)....................... 2.4
314(b)....................... Inapplicable
314(c)....................... 2.5
314(d)....................... Inapplicable
314(e)....................... 1.1, 2.5, 3.2
314(f)....................... 2.1, 3.2
315(a)....................... 3.1(d)
315(b)....................... 2.7
315(c)....................... 3.1
315(d)....................... 3.1(d)
316(a)....................... 5.4(iii), 2.6
316(b)....................... 5.1
316(c)....................... 2.2
317(a)....................... Inapplicable
317(b)....................... Inapplicable
318(a)....................... 2.1(b)
318(b)....................... 2.1
318(c)....................... 2.1(a)
------------------
*/This Cross-Reference Table does not constitute part of the Parent
Guarantee Agreement and shall not affect the interpretation of any of
its terms or provisions.
21
FORM OF CONSENT AND LETTER OF TRANSMITTAL
SINCLAIR BROADCAST GROUP, INC.
and
SINCLAIR CAPITAL
Offer To Exchange Sinclair Capital's 11 5/8% High Yield Trust
Offered Preferred Securities
That Have Been Registered Under the Securities Act of 1933
For Any and All of Sinclair Capital's Outstanding
11 5/8% High Yield Trust Offered Preferred Securities
(Liquidation Value $100 per Preferred Security)
Pursuant to the Prospectus Dated ____ __, 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON ________ ___, 1997, UNLESS THE EXCHANGE OFFER IS EXTENDED.
SINCLAIR BROADCAST GROUP, INC. HAS PROPOSED A TECHNICAL AMENDMENT TO THE
ARTICLES SUPPLEMENTARY GOVERNING ITS SERIES C PREFERRED STOCK. THE AMENDMENT
IS INTENDED TO ENSURE THAT SHARES OF SINCLAIR CAPITAL'S HIGH YIELD TRUST
OFFERED PREFERRED SECURITIES ISSUED IN THE EXCHANGE OFFER WILL BE VALIDLY
ISSUED. THE CONSENT OF HOLDERS OF A MAJORITY IN AGGREGATE LIQUIDATION VALUE
OF THE OUTSTANDING HIGH YIELD TRUST OFFERED PREFERRED SECURITIES IS REQUIRED
TO EFFECT THIS AMENDMENT. YOUR SUBMISSION OF THIS CONSENT AND LETTER OF
TRANSMITTAL WILL CONSTITUTE CONSENT TO THE PROPOSED AMENDMENT UNLESS YOU
INDICATE OTHERWISE IN THE SPACE PROVIDED HEREIN.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
First Union National Bank of Maryland
<TABLE>
<CAPTION>
<S> <C> <C>
BY MAIL, HAND BY FACSIMILE TRANSMISSION: TO CONFIRM BY TELEPHONE
OR OVERNIGHT DELIVERY: (804) 788-9661 OR FOR INFORMATION:
First Union National Bank Patricia Welling: (804)
of Maryland 788-9663
901 E. Cary Street, 2nd Floor
Richmond, VA 23219
Attn: Patricia Welling
</TABLE>
DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION OF THIS CONSENT AND LETTER OF TRANSMITTAL VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY. THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
CONSENT AND LETTER OF TRANSMITTAL IS COMPLETED. CAPITALIZED TERMS USED BUT NOT
DEFINED HEREIN SHALL HAVE THE SAME MEANING GIVEN THEM IN THE PROSPECTUS (AS
DEFINED BELOW).
<PAGE>
This Consent and Letter of Transmittal is to be completed by holders of Old
Preferred Securities (as defined below) either if Old Preferred Securities are
to be forwarded herewith or if tenders of Old Preferred Securities are to be
made by book-entry transfer to an account maintained by First Union National
Bank of Maryland (the "Exchange Agent") at The Depository Trust Company ("DTC")
pursuant to the procedures set forth in "The Exchange Offer -- Procedures for
Tendering Old Preferred Securities" in the Prospectus.
Holders of Old Preferred Securities whose certificates (the "Certificates")
for such Old Preferred Securities are not immediately available or who cannot
deliver their Certificates and all other required documents to the Exchange
Agent on or prior to the Expiration Date (as defined in the Prospectus) or who
cannot complete the procedures for book-entry transfer on a timely basis, must
tender their Old Preferred Securities according to the guaranteed delivery
procedures set forth in "The Exchange Offer -- Procedures for Tendering Old
Preferred Securities" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
----------------------
2
<PAGE>
Please list below the Old Preferred Securities to which this Consent and
Letter of Transmittal relates. If the space provided below is inadequate, please
list the certificate numbers and Aggregate Liquidation Values on a separately
executed schedule and affix the schedule to this Consent and Letter of
Transmittal.
<TABLE>
<CAPTION>
======================================================================================================================
DESCRIPTION OF THE OLD PREFERRED SECURITIES
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
AGGREGATE LIQUIDATION AGGREGATE LIQUIDATION
CERTIFICATE VALUE OF OLD PREFERRED VALUE OF OLD PREFERRED
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) NUMBER(S)* SECURITIES DELIVERED SECURITIES TENDERED FOR
EXCHANGE**
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------ -------------------- ------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders. Such holders should check the
appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Preferred
Securities delivered to the Exchange Agent. All Old Preferred Securities
delivered shall be deemed tendered unless a lesser number is specified in
this column.
================================================================================
3
<PAGE>
================================================================================
TENDER OF OLD PREFERRED SECURITIES
================================================================================
[ ] Check here if tendered Old Preferred Securities are enclosed herewith.
[ ] Check here if tendered Old Preferred Securities are being delivered by
book-entry transfer made to the account maintained by the Exchange Agent at
DTC and complete the following:
Name of Tendering Institution: ____________________________________________
DTC Account Number: _______________________________________________________
Transaction Code Number: __________________________________________________
[ ] Check here if tendered Old Preferred Securities are being delivered
pursuant to a Notice of Guaranteed Delivery previously delivered to the
Exchange Agent. In such case, please enclose a photocopy of the Notice of
Guaranteed Delivery and complete the following:
Name of Registered Holders(s): ____________________________________________
Window Ticket Number (if any): ____________________________________________
Date of Execution of Notice of Guaranteed Delivery: _______________________
Name of Eligible Institution that Guaranteed Delivery: ____________________
[ ] Check here if you are a broker-dealer who acquired the Old Preferred
Securities for its own account as a result of market making or other
trading activities (a "Participating Broker-Dealer") and wish to receive 10
additional copies of the Prospectus and 10 copies of any amendments or
supplements thereto. In such case, please complete the following:
Name:______________________________________________________________________
Address:___________________________________________________________________
Area Code and Telephone Number:____________________________________________
Contact Person:____________________________________________________________
================================================================================
4
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Sinclair Capital, a Delaware special
purpose statutory business trust (the "Trust") and Sinclair Broadcast Group,
Inc., a Maryland corporation, as Depositor ("the Company"), the above described
aggregate Liquidation Value of the Trust's 11 5/8% High Yield Trust Offered
Preferred Securities (the "Old Preferred Securities") in exchange for a like
aggregate Liquidation Value of the Trust's 11 5/8% High Yield Trust Offered
Preferred Securities (the "New Preferred Securities") which have been registered
under the Securities Act of 1933 (the "Securities Act"), upon the terms and
subject to the conditions set forth in the Prospectus dated ____ __, 1997 (as
the same may be amended or supplemented from time to time, the "Prospectus"),
receipt of which is acknowledged, and in this Consent and Letter of Transmittal
(which, together with the Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Preferred Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Old Preferred
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company and the Trust in connection with the Exchange Offer) with respect to the
tendered Old Preferred Securities, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
subject only to the right of withdrawal described in the Prospectus, to (i)
deliver Certificates for Old Preferred Securities to the Company or the Trust
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Trust, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Preferred Securities to be issued in exchange
for such Old Preferred Securities, (ii) present Certificates for such Old
Preferred Securities for transfer, and to transfer the Old Preferred Securities
on the books of the Trust, and (iii) receive for the account of the Trust all
benefits and otherwise exercise all rights of beneficial ownership of such Old
Preferred Securities, all in accordance with the terms and conditions of the
Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENT(S) AND WARRANT(S) THAT THE UNDERSIGNED
HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
OLD PREFERRED SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED
FOR EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD PREFERRED SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY, THE TRUST OR THE
EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT
AND TRANSFER OF THE OLD PREFERRED SECURITIES TENDERED HEREBY, AND THE
5
<PAGE>
UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS
AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE
EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old
Preferred Securities tendered hereby should be printed on page 3, if they are
not already set forth there, as they appear on the Certificates (or, in the case
of book-entry securities, on the relevant security position listing)
representing such Old Preferred Securities. The Certificate number(s) and the
Old Preferred Securities that the undersigned wishes to tender should be
indicated in the appropriate boxes on page 3.
If any tendered Old Preferred Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for more Old
Preferred Securities than are tendered or accepted for exchange, Certificates
for such nonexchanged or nontendered Old Preferred Securities will be returned
(or, in the case of Old Preferred Securities tendered by book-entry transfer,
such Old Preferred Securities will be credited to the appropriate account
maintained at DTC), without expense to the tendering holder, promptly following
the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Preferred Securities
pursuant to any one of the procedures described in "The Exchange Offer --
Procedures for Tendering Old Preferred Securities" in the Prospectus and in the
instructions hereto will, upon the Company's and the Trust's acceptance for
exchange of such tendered Old Preferred Securities, constitute a binding
agreement between the undersigned, the Company and the Trust upon the terms and
subject to the conditions of the Exchange Offer. The undersigned recognizes
that, under certain circumstances set forth in the Prospectus, the Company and
the Trust may not be required to accept for exchange any of the Old Preferred
Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Preferred
Securities be issued in the name(s) of the undersigned or, in the case of a
book-entry transfer of Old Preferred Securities, that such New Preferred
Securities be credited to the account indicated above maintained at DTC. If
applicable, substitute Certificates representing Old Preferred Securities not
tendered or not accepted for exchange will be issued to the undersigned or, in
the case of a book-entry transfer of Old Preferred Securities, will be credited
to the account indicated above maintained at DTC. Similarly, unless otherwise
indicated under "Special Delivery Instructions," the undersigned hereby directs
that New Preferred Securities be delivered to the undersigned at the address
shown below the undersigned's signature.
BY TENDERING OLD PREFERRED SECURITIES AND EXECUTING THIS CONSENT AND
LETTER OF TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE TRUST, (II) ANY NEW
PREFERRED SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE
ORDINARY COURSE OF ITS BUSINESS, (III) THE UNDERSIGNED HAS NO ARRANGEMENT OR
UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE
MEANING OF THE SECURITIES
6
<PAGE>
ACT) OF NEW PREFERRED SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (IV)
IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN,
AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH NEW PREFERRED SECURITIES. BY TENDERING OLD PREFERRED
SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS CONSENT AND LETTER
OF TRANSMITTAL, A HOLDER OF OLD PREFERRED SECURITIES THAT IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE
COMMISSION (THE "STAFF") TO THIRD PARTIES, THAT (A) SUCH OLD PREFERRED
SECURITIES HELD BY THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (B) SUCH OLD
PREFERRED SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS
A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL
DELIVER A PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH NEW
PREFERRED SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING A
PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT IS AN
"UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS OF
THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER (AS
DEFINED BELOW) IN CONNECTION WITH RESALES OF NEW PREFERRED SECURITIES RECEIVED
IN EXCHANGE FOR OLD PREFERRED SECURITIES, WHERE SUCH OLD PREFERRED SECURITIES
WERE ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR A PERIOD
ENDING 180 DAYS AFTER THE EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN
LIMITED CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH
NEW PREFERRED SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING
BROKER-DEALER. IN THAT REGARD, EACH BROKER-DEALER WHO ACQUIRED OLD PREFERRED
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH OLD PREFERRED
SECURITIES AND EXECUTING THIS CONSENT AND LETTER OF TRANSMITTAL, AGREES THAT,
UPON RECEIPT OF NOTICE FROM THE COMPANY OR THE TRUST OF THE OCCURRENCE OF ANY
EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR
INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR
WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION RIGHTS
AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF NEW
PREFERRED SECURITIES (OR THE NEW KDSM SENIOR DEBENTURES OR THE NEW PARENT
GUARANTEE OR THE NEW PARENT DEBENTURE GUARANTEE, AS APPLICABLE) PURSUANT TO THE
PROSPECTUS UNTIL THE COMPANY AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE
PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF
THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR THE
COMPANY OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE NEW PREFERRED
SECURITIES (OR THE NEW KDSM SENIOR DEBENTURES OR THE NEW PARENT GUARANTEE OR THE
NEW PARENT DEBENTURE GUARANTEE, AS APPLICABLE) MAY BE RESUMED, AS THE CASE MAY
BE. IF THE COMPANY OR THE TRUST GIVES
7
<PAGE>
SUCH NOTICE TO SUSPEND THE SALE OF THE NEW PREFERRED SECURITIES, IT SHALL EXTEND
THE 90-DAY PERIOD REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS
ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH THE RESALE OF NEW
PREFERRED SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING
THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE DATE WHEN
PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR
AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE NEW PREFERRED SECURITIES
OR TO AND INCLUDING THE DATE ON WHICH THE COMPANY OR THE TRUST HAS GIVEN NOTICE
THAT THE SALE OF NEW PREFERRED SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Preferred Securities whose Old Preferred Securities are
accepted for exchange will not receive accrued distributions on such Old
Preferred Securities for any period from and after the last Distribution Payment
Date with respect to which distributions have been paid or duly provided for on
such Old Preferred Securities prior to the original issue date of the New
Preferred Securities or, if no such distributions have been paid or duly
provided for, will not receive any accrued distributions on such Old Preferred
Securities, and the undersigned waives the right to receive any distributions on
such Old Preferred Securities accrued from and after such Distribution Payment
Date or, if no such distributions have been paid or duly provided for, from and
after March 12, 1997. The distribution payment provisions of the New Preferred
Securities are described in the Prospectus. See "Description of the New
Preferred Securities -- Distributions."
All authority herein conferred or agreed to be conferred in this Consent
and Letter of Transmittal shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Please be advised that the Company is registering the New Preferred
Securities in reliance on the position of the Staff enunciated in Exxon
Preferred Holdings Corp. (available April 13, 1989) and Morgan Stanley & Co.
Incorporated (available June 5, 1991). The Company has not entered into any
arrangement or understanding with any person to distribute the New Preferred
Securities to be received in the Exchange Offer and, to the best of its
information and belief, each person participating in the Exchange Offer is
acquiring the New Preferred Securities in its ordinary course of business and
has no arrangement or understanding with any person to participate in the
distribution of the New Preferred Securities to be received in the Exchange
Offer. In this regard, the undersigned is aware that if the undersigned is
participating in the Exchange Offer for the purpose of distributing the New
Preferred Securities to be acquired in the Exchange Offer, the undersigned (a)
may not rely on the Staff position enunciated in Exxon Preferred or
interpretative letters to similar effect and (b) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction. The undersigned is aware that
such a secondary resale transaction by a person participating in the Exchange
Offer for the purpose of
8
<PAGE>
distributing the New Preferred Securities should be covered by an effective
registration statement containing the selling securityholder information
required by Item 507 of Regulation S-K.
9
<PAGE>
- --------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, and 6) (See Instructions 1, 5, and 6)
To be completed ONLY if the New To be completed ONLY if New or
Preferred Securities or any Old any Old Preferred Securities
Preferred Securities delivered but delivered, but not tendered for
not tendered for exchange are to be exchange are to be sent to someone
issued in the name of someone other other than the registered holder of
than the registered holder of the the Old Preferred Securities whose
Old Preferred Securities whose name(s) appear(s) above, or such
name(s) appear(s) above. registered holder(s) at an address
other than that shown above.
Issue: |_| New Preferred Securities
and/or Mail: |_| New Preferred Securities
|_| Old Preferred Securities and /or
delivered but not tendered |_| Old Preferred Securities
for exchange delivered but not tendered
for exchange:
Name(s): _________________________
(Please Print) Name(s): _________________________
(Please Print)
Address:_______________________________
(Please Print) Address:_______________________________
_______________________________________ (Please Print)
_______________________________________
_______________________________________
(Please include ZIP code) _______________________________________
(Please include ZIP code)
_______________________________________
Telephone Number with Area Code _______________________________________
Telephone Number with Area Code
_______________________________________
Tax ID Number _______________________________________
Tax ID Number
- --------------------------------------------------------------------------------
10
<PAGE>
- --------------------------------------------------------------------------------
CONSENT TO PROPOSED AMENDMENT
- --------------------------------------------------------------------------------
By checking the appropriate box below, the undersigned hereby gives or
withholds consent for the proposed amendment to the Parent Preferred Articles
Supplementary with respect to the aggregate Liquidation Value of the Old
Preferred Securities listed in the box labeled "Description of Old Preferred
Securities." By checking neither box, the undersigned hereby consents to the
proposed amendment. The Proposed Amendment is intended to ensure that New
Preferred Securities issued in the Exchange Offer will be validly issued. The
Proposed Amendment is described in the Prospectus section captioned "The
Exchange Offer -- Amendment of the Parent Preferred Articles Supplementary."
[ ] FOR PROPOSED AMENDMENT
[ ] AGAINST PROPOSED AMENDMENT
If the undersigned is not a holder of Old Preferred Securities listed in
the box labeled "Description of Old Preferred Securities" (i.e. the record
holder thereof as of the close of business as of the Record Date) or such
Holder's legal representative or attorney-in-fact, then, in order to validly
consent, the undersigned must obtain a properly completed irrevocable proxy that
authorizes the undersigned (or the undersigned's legal representative or
attorney-in-fact) to vote such Old Preferred Securities on behalf of the holder
thereof, and such proxy should be delivered with this Consent and Letter of
Transmittal.
- --------------------------------------------------------------------------------
11
<PAGE>
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(Please Complete Substitute Form W-9 Contained Herein)
(Note: Signatures Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Old Preferred Securities hereby tendered (or, in the case
of book-entry securities, on the relevant security position listing), or by any
person(s) authorized to become the registered holder(s) by endorsements and
documents transmitted herewith (including such opinions of counsel,
certifications and other information as may be required by the Trust or the
Trustee for the Old Preferred Securities to comply with the restrictions on
transfer applicable to the Old Preferred Securities). If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
X _________________________________ GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5 below)
X _________________________________ Certain Signatures Must be Guaranteed
(Signature(s) of Holder(s) or by an Eligible Institution
Authorized Signatory)
Date:________________________, 1997 ____________________________________
(Authorized Signature)
Name(s): __________________________
____________________________________
___________________________________ (Capacity (full title))
(Please Print)
____________________________________
Capacity:__________________________ (Name of Eligible Institution
Guaranteeing Signature)
Address: __________________________
____________________________________
(Address of Firm -- Please include
___________________________________ ZIP code)
(Please Include ZIP Code)
____________________________________
Telephone No.(with area code):_____
Tax ID No.: ______________________ ____________________________________
Telephone No. (with area code)
of Firm
Date:_________________________, 1997
12
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF CONSENT AND LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. This Consent and Letter of Transmittal is to
be completed either if (a) Certificates are to be forwarded herewith or (b)
tenders are to be made pursuant to the procedures for tender by book-entry
transfer set forth in "The Exchange Offer -- Procedures for Tendering Old
Preferred Securities" in the Prospectus. Certificates, or timely
confirmation of a book-entry transfer of such Old Preferred Securities into
the Exchange Agent's account at DTC, as well as this Consent and Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, and any other documents required by
this Consent and Letter of Transmittal, must be received by the Exchange
Agent at its address set forth herein on or prior to the Expiration Date.
Holders who wish to tender their Old Preferred Securities and (i) whose
Old Preferred Securities are not immediately available or (ii) who cannot
deliver their Old Preferred Securities, this Consent and Letter of
Transmittal and all other required documents to the Exchange Agent on or
prior to the Expiration Date or (iii) who cannot complete the procedures for
delivery by book-entry transfer on a timely basis, may tender their Old
Preferred Securities by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth
in "The Exchange Offer -- Procedures for Tendering Old Preferred Securities"
in the Prospectus. Pursuant to such procedures: (i) such tender must be made
by or through an Eligible Institution (as defined below); (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in
the form made available by the Company, must be received by the Exchange
Agent on or prior to the Expiration Date; and (iii) the Certificates (or a
book-entry confirmation (as defined in the Prospectus)) representing all
tendered Old Preferred Securities, in proper form for transfer, together
with a Consent and Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees and any
other documents required by this Consent and Letter of Transmittal, must be
received by the Exchange Agent within three Nasdaq Stock Market trading days
after the date of execution of such Notice of Guaranteed Delivery, all as
provided in "The Exchange Offer -- Procedures for Tendering Old Preferred
Securities" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by
an Eligible Institution in the form set forth in such Notice. For Old
Preferred Securities to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution"
13
<PAGE>
means a firm or other entity identified in Rule 17Ad-15 under the Exchange
Act as "an eligible guarantor institution," including (as such terms are
defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS CONSENT AND LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK
OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY
SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Neither the Company nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Consent and Letter of Transmittal (or facsimile thereof), waives any right
to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Consent and
Letter of Transmittal is required if:
(i) this Consent and Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document,
shall include any participant in DTC whose name appears on the
relevant security position listing as the owner of the Old
Preferred Securities) of Old Preferred Securities tendered
herewith, unless such holder(s) has completed either the box
entitled "Special Issuance Instructions" or the box entitled
"Special Delivery Instructions" above, or
(ii) such Old Preferred Securities are tendered for the account of a
firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Consent and Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Preferred Securities" is inadequate, the Certificate
number(s) and/or the aggregate Liquidation Value of Old Preferred Securities
and any other required information should be listed on a separate signed
schedule which is attached to this Consent and Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. If less than all the Old
Preferred Securities evidenced by any Certificate submitted are to be
tendered, fill in the aggregate Liquidation Value
14
<PAGE>
of Old Preferred Securities which are to be tendered in the box entitled
"Aggregate Liquidation Value of Old Preferred Securities Tendered for
Exchange." In such case, new Certificate(s) for the remainder of the Old
Preferred Securities that were evidenced by your old Certificate(s) will be
sent to the holder of the Old Preferred Securities (or such other party as
you identify in the box captioned "Special Delivery Instructions"), promptly
after the Expiration Date. All Old Preferred Securities represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Preferred Securities
may be withdrawn at any time on or prior to the Expiration Date. In order
for a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at its address set forth above on or prior to the Expiration
Date. Any such notice of withdrawal must specify the name of the person who
tendered the Old Preferred Securities to be withdrawn, the aggregate
Liquidation Value of Old Preferred Securities to be withdrawn, and (if
Certificates for Old Preferred Securities have been tendered) the name of
the registered holder of the Old Preferred Securities as set forth on the
Certificate for the Old Preferred Securities, if different from that of the
person who tendered such Old Preferred Securities. If Certificates for the
Old Preferred Securities have been delivered or otherwise identified to the
Exchange Agent, then prior to the physical release of such Certificates for
the Old Preferred Securities, the tendering holder must submit the serial
numbers shown on the particular Certificates for the Old Preferred
Securities to be withdrawn and the signature on the notice of withdrawal
must be guaranteed by an Eligible Institution, except in the case of Old
Preferred Securities tendered for the account of an Eligible Institution. If
Old Preferred Securities have been tendered pursuant to the procedures for
book-entry transfer set forth in "The Exchange Offer -- Procedures for
Tendering Old Preferred Securities," the notice of withdrawal must specify
the name and number of the account at DTC to be credited with the withdrawal
of Old Preferred Securities, in which case a notice of withdrawal will be
effective if delivered to the Exchange Agent by written, telegraphic, telex
or facsimile transmission. Withdrawals of tenders of Old Preferred
Securities may not be rescinded. Old Preferred Securities properly withdrawn
will not be deemed validly tendered for purposes of the Exchange Offer, but
may be retendered at any subsequent time on or prior to the Expiration Date
by following any of the procedures described in the Prospectus under "The
Exchange Offer -- Procedures for Tendering Old Preferred Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. The Company and the Trust, any affiliates or assigns
of the Company and the Trust, the Exchange Agent or any other person shall
not be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Preferred Securities which
15
<PAGE>
have been tendered but which are withdrawn will be returned to the holder
thereof without cost to such holder promptly after withdrawal.
5. SIGNATURES ON CONSENT AND LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Consent and Letter of Transmittal is signed by the
registered holder(s) of the Old Preferred Securities tendered hereby, the
signature(s) must correspond exactly with the name(s) as written on the face
of the Certificate(s) (or, in the case of book-entry securities, on the
relevant security position listing) without alteration, enlargement or any
change whatsoever.
If any of the Old Preferred Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Consent
and Letter of Transmittal.
If any tendered Old Preferred Securities are registered in different
name(s) on several Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal (or facsimiles thereof) as
there are different registrations of Certificates.
If this Consent and Letter of Transmittal or any Certificates or bond
powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing and
must submit proper evidence satisfactory to the Company and the Trust, in
their sole discretion, of such persons' authority to so act.
When this Consent and Letter of Transmittal is signed by the registered
owner(s) of the Old Preferred Securities listed and transmitted hereby, no
endorsement(s) of Certificate(s) or separate bond power(s) are required
unless New Preferred Securities are to be issued in the name of a person
other than the registered holder(s). Signature(s) on such Certificate(s) or
bond power(s) must be guaranteed by an Eligible Institution.
If this Consent and Letter of Transmittal is signed by a person other
than the registered owner(s) of the Old Preferred Securities listed, the
Certificates must be endorsed or accompanied by appropriate bond powers,
signed exactly as the name or names of the registered owner(s) appear(s) on
the Certificates, and also must be accompanied by such opinions of counsel,
certifications and other information as the Company, the Trust or the
Trustee for the Old Preferred Securities may require in accordance with the
restrictions on transfer applicable to the Old Preferred Securities.
Signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Preferred
Securities are to be issued in the name of a person other than the signer of
this Consent and Letter of Transmittal, or if New Preferred Securities are
to be sent to someone other than the signer of this Consent and Letter of
16
<PAGE>
Transmittal or to an address other than that shown above, the appropriate
boxes on this Consent and Letter of Transmittal should be completed.
Certificates for Old Preferred Securities not exchanged will be returned by
mail or, if tendered by book-entry transfer, by crediting the account
indicated above maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Preferred Securities, which determination shall be final and
binding on all parties. The Company and the Trust reserve the absolute right
to reject any and all tenders determined by either of them not to be in
proper form or the acceptance of which, or exchange for, may, in the view of
counsel to the Company and the Trust, be unlawful. The Company and the Trust
also reserve the absolute right, subject to applicable law, to waive any of
the conditions of the Exchange Offer set forth in the Prospectus under "The
Exchange Offer -- Certain Conditions to the Exchange Offer" or any
conditions or irregularity in any tender of Old Preferred Securities of any
particular holder whether or not similar conditions or irregularities are
waived in the case of other holders. The Company's and the Trust's
interpretation of the terms and conditions of the Exchange Offer (including
this Consent and Letter of Transmittal and the instructions hereto) will be
final and binding. No tender of Old Preferred Securities will be deemed to
have been validly made until all irregularities with respect to such tender
have been cured or waived. The Company, the Trust, any affiliates or assigns
of the Company, the Trust, the Exchange Agent, or any other person shall not
be under any duty to give notification of any irregularities in tenders or
incur any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its
address and telephone number set forth on the front of this Consent and
Letter of Transmittal. Additional copies of the Prospectus, the Notice of
Guaranteed Delivery and the Consent and Letter of Transmittal may be
obtained from the Exchange Agent or from your broker, dealer, commercial
bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Preferred Securities have been lost, destroyed or stolen,
the holder should promptly notify the Exchange Agent. The holder will then
be instructed as to the steps that must be taken in order to replace the
Certificate(s). This Consent and Letter of Transmittal and related documents
cannot be processed until the procedures for replacing lost, destroyed or
stolen Certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Preferred
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Preferred Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Preferred Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Old Preferred
Securities in connection with the Exchange Offer,
17
<PAGE>
then the amount of any such transfer tax (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Consent and Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
IMPORTANT: THIS CONSENT AND LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF)
AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON
OR PRIOR TO THE EXPIRATION DATE.
18
<PAGE>
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Preferred
Securities are accepted for exchange is required by law to provide the Exchange
Agent with such holder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 included herein or otherwise establish a basis for exemption
from backup withholding. If such holder is an individual, the TIN is his social
security number. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the holder or transferee to a $50 penalty.
In addition, delivery of such holder's New Preferred Securities may be subject
to backup withholding. Failure to comply truthfully with the backup withholding
requirements also may result in the imposition of severe criminal and/or civil
fines and penalties.
Certain holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt holders should furnish their TIN, write "Exempt" on the
face of the Substitute Form W-9, and sign, date and return the Substitute Form
W-9 to the Exchange Agent. A foreign person, including entities, may qualify as
an exempt recipient by submitting to the Exchange Agent a properly completed
Internal Revenue Service Form W-8, signed under penalties of perjury, attesting
to that holder's foreign status. A Form W-8 can be obtained from the Exchange
Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the holder or other transferee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to Old
Preferred Securities exchanged in the Exchange Offer, the holder is required to
provide the Exchange Agent with either: (i) the holder's correct TIN by
completing the form included herein, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that
(A) the holder has not been notified by the Internal Revenue Service that the
holder is subject to backup withholding as a result of failure to report all
interest or dividends or (B) the Internal Revenue Service has notified the
holder that the holder is no longer subject to backup withholding; or (ii) an
adequate basis for exemption.
19
<PAGE>
NUMBER TO GIVE THE DEPOSITARY
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Old Preferred Securities. If the Old Preferred Securities are held in more
than one name or are held not in the name of the actual owner, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W- 9" for additional guidance on which number to report.
20
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Payer's Name:
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN IN Social security number or
Form W-9 THE BOX AT RIGHT AND CERTIFY BY ____________/________/___________
SIGNING AND DATING BELOW Employer identification number
Payer's
Request for
Taxpayer
Identification
Number (TIN)
Part 2 -- Certification -- Under penalties of perjury, I
certify that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me) and
(2) I am not subject to backup withholding because (i)
I have not been notified by the Internal Revenue
Service ("IRS") that I am subject to backup
withholding as a result of failure to report all
interest or dividends, or (ii) the IRS has
notified me that I am no longer subject to backup
withholding.
Certificate Instructions -- You must cross out item (2) in Part 3 --
Part 2 above if you have been notified by the IRS that you Awaiting TIN
are subject to backup withholding because of [ ]
underreporting interest or dividends on your tax return.
However, if after being notified by the IRS that you are
subject to backup withholding you received another
notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out item (2).
______________________________ Date _____________, 1997
Signature
______________________________
Name (please print)
- --------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATION IF YOU CHECKED THE BOX IN PART 3
OF THIS SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
- --------------------------------------------------------------------------------
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the New
Preferred Securities shall be retained until I provide a taxpayer
identification number to the Exchange Agent and that, if I do not provide my
taxpayer identification number within 60 days, such retained amounts shall be
remitted to the Internal Revenue Service as backup withholding and 31% of all
reportable payments made to me thereafter will be withheld and remitted to the
Internal Revenue Service until I provide a taxpayer identification number.
Signature:___________________________ Date: ______________________, 1997
Name (please print):___________________________
- --------------------------------------------------------------------------------
21
FORM OF NOTICE OF GUARANTEED DELIVERY
For Tender of High Yield Trust Offered Preferred Securities
(Liquidation Value $100 per Preferred Security)
of
SINCLAIR CAPITAL
As set forth in the Exchange Offer (as defined below), this Notice of
Guaranteed Delivery, or one substantially equivalent to this form, must be used
to accept the Exchange Offer if (i) certificates for Sinclair Capital's High
Yield Trust Offered Preferred Securities (the "Old Preferred Securities") are
not immediately available, (ii) the Old Preferred Securities, the Letter of
Transmittal and all other required documents cannot be delivered to First Union
National Bank of Maryland (the "Exchange Agent") on or prior to the Expiration
Date (as defined in the Prospectus referred to below) or (iii) the procedures
for delivery by book-entry transfer cannot be completed on or prior to the
Expiration Date as set forth below. This Notice of Guaranteed Delivery may be
delivered by hand, overnight courier or mail, or transmitted by facsimile
transmission, to the Exchange Agent on or prior to the Expiration Date. See "The
Exchange Offer -- Procedures for Tendering Old Preferred Securities" in the
Prospectus.
The Exchange Agent is:
FIRST UNION NATIONAL BANK OF MARYLAND
By Mail, Hand or Overnight Delivery: By Facsimile Transmission
First Union National Bank of Maryland (804) 788-9661
901 E. Cary Street, 2nd Floor
Richmond, VA 23219 To Confirm By Telephone:
Attn: Patricia Welling Patricia Welling: (804) 788-9663
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on the Consent and Letter of Transmittal is required
to be guaranteed by an "Eligible Institution" under the instructions thereto,
such signature guarantee must appear in the applicable space provided in the
signature box on the Consent and Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to Sinclair Capital, a Delaware special
purpose statutory business trust, upon the terms and subject to the conditions
set forth in the Prospectus dated __________, 1997 (as the same may be amended
or supplemented from time to time, the "Prospectus"), and the related Consent
and Letter of Transmittal (which together constitute the "Exchange Offer"),
receipt of which is hereby acknowledged, the aggregate Liquidation Value of Old
Preferred Securities set forth below pursuant to the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange Offer --
Procedures for Tendering Old Preferred Securities."
Signature(s)_______________________ Address(es)________________________
_______________________ ___________________________________
Zip Code
Name(s) of Record Holder(s)
___________________________________ Area Code and Tel. No.(s) _________
___________________________________ Dated________________________, 1997
Please Type or Print
If Old Preferred Securities will be
Aggregate Liquidation Value tendered by book-entry transfer,
Tendered __________________________ provide the DTC account number:
Share Certificate No(s). (If
available)
___________________________________
___________________________________
___________________________________
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
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THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
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GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm or other entity identified in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker, government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at its address set forth above, either the Old Preferred
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Preferred Securities to the Exchange Agent's
account at The Depository Trust Company ("DTC"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letters of Transmittal (or
facsimile thereof or Agent's Message in lieu thereof) and any other required
documents within three Nasdaq Stock Market trading days after the date of
execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letters of Transmittal (or
facsimile thereof or Agent's Message in lieu thereof) and the Old Preferred
Securities tendered hereby (or a book-entry confirmation) to the Exchange Agent
within the time period set forth above and that failure to do so could result in
a financial loss to the undersigned.
___________________________________ _____________________________________
Name of Firm Authorized Signature
___________________________________
Address Name_________________________________
___________________________________ Please Type or Print
Zip Code
Title_______________________________
Area Code and Tel. No. ____________
Dated__________________________, 1997
NOTE: DO NOT SEND OLD PREFERRED SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD PREFERRED SECURITIES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY
EXECUTED CONSENT AND LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED
DOCUMENTS.
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Exhibit 99.3
___ __, 1997
FORM OF EXCHANGE AGENT AGREEMENT
First Union National Bank of Maryland
901 E. Cary Street, 2nd Floor
Richmond, VA 23219
Ladies and Gentlemen:
Sinclair Broadcast Group, Inc., a Maryland corporation, as Depositor
("the Company") and Sinclair Capital, a Delaware special purpose statutory
business trust (the "Trust") hereby appoint First Union National Bank of
Maryland ("First Union") to act as exchange agent (the "Exchange Agent") in
connection with an exchange offer (the "Exchange Offer") by the Company and the
Trust to exchange up to $200,000,000 aggregate Liquidation Value of the Trust's
11 5/8% High Yield Trust Offered Preferred Securities (the "New Preferred
Securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like aggregate Liquidation Value of the
Trust's outstanding 11 5/8% High Yield Trust Offered Preferred Securities (the
"Old Preferred Securities" and, together with the New Preferred Securities, the
"Preferred Securities").
The terms and conditions of the exchange offer are set forth in a
Prospectus dated ____ __ , 1997 (as the same may be amended or supplemented from
time to time, the "Prospectus") and in the related Letter of Transmittal, which
together constitute the "Exchange Offer." The registered holders of the
Preferred Securities are hereinafter referred to as the "Holders." Capitalized
terms used herein and not defined shall have the respective meanings ascribed
thereto in the Prospectus. References hereinafter to "you" shall refer to the
First Union National Bank of Maryland.
The Exchange Offer is expected to be commenced by the Company and the
Trust on or about ___ __, 1997. The Letter of Transmittal accompanying the
Prospectus is to be used by the Holders to accept the Exchange Offer, and
contains certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
____ __, 1997 or on such later date or time to which the Company and the Trust
may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company and the Trust expressly
reserve the right to extend the Exchange Offer from time to time and may extend
the Exchange Offer by giving oral (promptly confirmed in writing) or
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written notice to you no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date.
The Company and the Trust expressly reserve the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old Preferred
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "Conditions to the Exchange Offer." The Company or the Trust will give
oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you agree to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Preferred
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Preferred Securities by causing the Book-Entry Transfer Facility to transfer
such Old Preferred Securities into your account in accordance with the
Book-Entry Transfer Facility's procedure for such transfer.
3. You will examine each of the Letters of Transmittal, certificates
for Old Preferred Securities and confirmations of book- entry transfers into
your account at the Book-Entry Transfer Facility and any Agent's Message or
other documents delivered or mailed to you by or for holders of the Old
Preferred Securities to ascertain whether (i) the Letters of Transmittal and any
such other documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Preferred Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Old Preferred Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will advise the Company of such irregularity. If the Company does
not waive the irregularity as provided in paragraph 4, you will endeavor to
inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer or the Secretary of the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such officer of the Company in writing,
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you are authorized to waive any irregularities in connection with any tender of
Old Preferred Securities pursuant to the Exchange Offer.
5. Tenders of Old Preferred Securities may be made only as set forth in
the section of the Prospectus captioned "The Exchange Offer -- Procedures for
Tendering Old Preferred Securities" or in the Letter of Transmittal and Old
Preferred Securities shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Preferred
Securities which the Trust or any other party designated by the Trust in writing
shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Trust with respect to any Old Preferred
Securities delivered subsequent to the Expiration Date and accept their
instructions with respect to disposition of such Old Preferred Securities.
7. You will accept tenders:
(a) in cases where the Old Preferred Securities are registered
in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority to so act is submitted; and
(c) from persons other than the registered holder of Old
Preferred Securities provided that customary transfer requirements, including
any applicable transfer taxes, are fulfilled. You will accept partial tenders of
Old Preferred Securities where so indicated and as permitted in the Letter of
Transmittal and deliver certificates for Old Preferred Securities to the
transfer agent for split-up and return any untendered Old Preferred Securities
to the holder (or to such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Trust will notify you (such notice if given orally, to be promptly
confirmed in writing) of the Company's acceptance, promptly after the Expiration
Date, of all Old Preferred Securities properly tendered and you, on behalf of
the Trust, will exchange such Old Preferred Securities for New Preferred
Securities and cause such Old Preferred Securities to be canceled. Delivery of
New Preferred Securities will be made on behalf of the Trust by you at the rate
of $100 Liquidation Value of New Preferred Securities for each $100 Liquidation
Value of Old Preferred Securities tendered promptly after notice (such notice if
given orally, to be promptly confirmed in writing) of acceptance of said Old
Preferred Securities by the Trust; provided, however, that in
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all cases, Old Preferred Securities tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by you of certificates for such Old
Preferred Securities (or confirmation of book-entry transfer into your account
at the Book-Entry Transfer Facility), a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) with any required signature
guarantees (or in lieu thereof an Agent's Message) and any other required
document.
9. The Company and the Trust shall not be required to exchange any Old
Preferred Securities tendered if any of the conditions set forth in the Exchange
Offer are not met. Notice of any decision by the Company and the Trust not to
exchange any Old Preferred Securities tendered shall be given (such notice, if
given orally, shall be promptly confirmed in writing) by the Company or the
Trust to you.
10. If, pursuant to the Exchange Offer, the Company or the Trust does
not accept for exchange all or part of the Old Preferred Securities tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Old Preferred Securities (or effect the appropriate book-entry
transfer of the unaccepted Old Preferred Securities), and return any related
required documents and the Letters of Transmittal relating thereto that are in
your possession, to the persons who deposited them.
11. All certificates for reissued Old Preferred Securities or for
unaccepted Old Preferred Securities shall be forwarded by (a) first-class mail,
return receipt requested, under a blanket surety bond protecting you, the
Company and the Trust from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of such certificates.
12. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of Old
Preferred Securities, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
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(c) shall not be liable to the Company or the Trust for any
action taken or omitted by you, or any action suffered by you to be taken or
omitted, without negligence, misconduct or bad faith on your part, by reason of
or as a result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and the effectiveness of its provisions, but also as to
the truth and accuracy of any information contained therein, which you shall in
good faith reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written
or oral instructions from the Trust or any officer of the Company with respect
to the Exchange Offer;
(f) shall not advise any person tendering Old Preferred
Securities pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market value of any Old
Preferred Securities; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the written opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in good faith
and in accordance with such written opinion of such counsel.
14. You shall take such action as may from time to time be requested by
the Company, the Trust or their counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery, or such other forms as may be
approved from time to time by the Company or the Trust, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer and that such information shall be consistent with the terms of the
Exchange Offer and the Letter of Transmittal. The Company or the Trust will
furnish you with copies of such documents at your request. All other requests
for information relating to the Exchange Offer shall be directed to the Company,
care of Patrick Talamantes at: 2000 W. 41st Street, Baltimore, MD 21211.
15. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Company, the Trust and Wilmer,
Cutler & Pickering, counsel for the Company and the Trust, and such other person
or persons as they may request, weekly, and more
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frequently if reasonably requested, up to and including the Expiration Date, as
to the principal amount of the Old Preferred Securities that have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received and items covered by Notices of
Guaranteed Delivery. In addition, you will also inform, and cooperate in making
available to, the Company and the Trust or any such other person or persons as
the Company or the Trust request from time to time prior to the Expiration Date,
such other information as they reasonably request. You shall prepare a list of
persons who failed to tender or whose tenders were not accepted and the
aggregate principal amount of Old Preferred Securities not tendered or Old
Preferred Securities not accepted and deliver said list to the Company and the
Trust at least seven days prior to the Expiration Date. You shall also prepare a
final list of all persons whose tenders were accepted, the aggregate principal
amount of Old Preferred Securities tendered and the aggregate principal amount
of Old Preferred Securities accepted and deliver said list to the Company and
the Trust.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company or destroying them if authorized by the Company.
17. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of [$____] and you shall be entitled to reimbursement of your
expenses (including fees and expenses of your counsel, which fees are expected
under normal circumstances to be not in excess of [$____]) incurred in
connection with the Exchange Offer. The obligations under this Section 18 shall
constitute joint and several obligations of the Company and the Trust.
18. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent necessary to perform your duties hereunder. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
19. The Company and the Trust jointly and severally agree to indemnify
and hold you harmless in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorneys' fees, arising out of
or in connection with the acceptance or administration of your duties hereunder,
including, without limitation, in connection with any act, omission, delay or
refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Preferred Securities
reasonably believed by you in good
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faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Preferred Securities; provided, however,
that the Company and the Trust shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent arising out of
your negligence, willful breach of this Agreement, willful misconduct or bad
faith. In no case shall the Company or the Trust be liable under this indemnity
with respect to any claim against you unless the Company and the Trust shall be
notified by you, by letter or by facsimile confirmed by letter, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or
commencement of action. The Company and the Trust shall be entitled to
participate at their own expense in the defense of any such claim or other
action, and, if the Company and the Trust so elect, the Company and the Trust
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company and the Trust shall assume the defense of any such suit,
the Company and the Trust shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Company and the
Trust shall retain counsel reasonably satisfactory to you to defend such suit.
You shall not compromise or settle any such action or claim without the consent
of the Company and the Trust.
20. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
Maryland applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
21. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together
constitute one and the same agreement.
22. In case any provision of this Agreement 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.
23. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
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24. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company or the Trust:
Sinclair Broadcast Group, Inc.
2000 W. 41st Street
Baltimore, MD 21211
Telephone: (410) 467-5005
Facsimile: (410) 467-5043
Attn: Robert Quicksilver, Esq.
With copies to:
Wilmer, Cutler & Pickering
100 Light Street
Baltimore, MD 21202
Telephone: (410) 986-2800
Facsimile: (410) 986-2828
Attn: John B. Watkins, Esq.
Thomas & Libowitz
100 Light Street, Suite 100
Baltimore, MD 21202
Telephone: (410) 752-2468
Facsimile: (410) 752-2046
Attn: C. Wayne Davis, Esq.
If to the Exchange Agent:
First Union National Bank of Maryland
901 E. Cary Street, 2nd Floor
Richmond, VA 23219
Telephone: (804) 788-9663
Facsimile: (804) 788-9661
Attn: Ms. Patricia A. Welling
25. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 17 and 19 shall survive the termination of this Agreement.
Except as provided in Section 16, upon any termination of this Agreement, you
shall promptly deliver to the Company any funds or property
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(including, without limitation, Letters of Transmittal and any other documents
relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement.
26. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
SINCLAIR BROADCAST GROUP, INC.
By: __________________________________
Name:
Title:
SINCLAIR CAPITAL
By: ___________________________________
Name:
Title:
Accepted as of the date
first above written:
FIRST UNION NATIONAL BANK OF MARYLAND
By: ____________________________________
Name:
Title:
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