SEC Division of Investment Management staff letter: KDSM, Inc. and Sinclair Capital

f.L"' --":. -, d

SiOON ~(l) )l I)) -. ft' .,'
RULE ~7~ -5 _ ~ ~i ,:':~:-'~i ~Ji.ï1~¡i'?7.~:C; . .
~:; FEB 2 I 1997 t
'lrrLIC 31 7. I '1 7. . . ' t:-;.f" ~-:: '.';- '~-:'::r'.-:.'1i~it'::~; \JLAILIT i . ~~R~f. Ñö:~tj6~61:4 I REPONSE OF TI OFFCE OF Clß COUNSEL KDSM, Inc. and Sinclai Capital DIVISION OF INTMEN MANAGEM File No. 132-3 Based on the facts and representations in your letter, and without necssay agreeing with your legal analysis, we would not remmend enforcement action to the Commission if KDSM, Inc. ("KDSM"), an indirt wholly owned subsidia of Sinclai Broadcast Group, Inc.

("Sinclai Broadcast"), does not register as an investment company, in relice on either section 3(b)(1) of the Investment Company Act of 1940 ("Investment Company Act"), or rule 3a-5 under that Act. Ths position is based paricularly on your opinon that KDSM would not be an investment company beuse either (i) KDSM would be priwy engaged ditly or thrugh

wholly owned subsidiares in a business or businesses other than investing, reinvestig, ownig,

holding, or tradig in seurities, or (ü) if KDSM is deemed to be priwy engaged in ownig or holding securities due to its financing activities, its priar purpse would be to finance the operations of Sinclai Broadcast and KDSM would mee al the reuirments of rule 3a-5. In addition, based on the facts and representations in your letter, and without necessariy agreing with your legal analysis, we would not reommend enforcment action to the￾Commission if Sinclai Capita, a wholly owned subsidia of KDSM, does not register as an investment company in reliance on rule 3a-5 under the Investment Company Act. Ths position is based paricularly on your opinon that Sinclai Capita would meet al the reuirements of rule 3a- 5.

You should note that any different facts or representations might reuire a different conclusion with respt to each of your questions. Your reuest for confdential treatment under 17 C.F.R. § 200.81(b) has ben granted until the ealier of 120 days from the date of this letter or the date of any disclosure of the facts sufficient to revea the essence of the no-action reuest or this response. Please inorm this office if this inormation is made public in any fashion prior to the expirtion of the 120-day period. f:c;& /:i-¡t.., I~ Rochelle Kauffman Plesset

Senior Counsel

WILMER, CUTLER 8. PICKERING
2445 M STREET. N.W. 4 CARLTON GARDENS
WASHINGTON. D.C. 20037-1420 LONDON SWIY 5"" TELEPHONE ALL 14471 l 839.4466 FACSIMILE 011 144711839-3537 JEREMY N RUBENSTEIN TELEPHONE 12021 663-6000 FACSIMILE 12021 663-6363 RUE DE LA L.OI 15 WETSTRAAT B-1040 BRUSSELS DIRECT LINE 12D21 TELEPHONE 011 13221231-3 ee3-6159 FACSIMILE 011 13221230-4322 FRIEDRICHSTRASSE 95 BRIEF KASTEN 29 0-0117 BERLIN TELEPHONE 011 14~301 2643 3601 FACSIMILE 011 14~3O 2643 3630 CONFENT TRATMENT REQUESTED

BY KDSM AN SINCLAI CAPITAL

PURUANT TO 17 C.F.R. § 200.81
Febru 21, 1997

BY MESSENGER
Jack W. Murhy, Esq.
Chief Counsel
Division of Investent Management
Securties and Exchange Commssion
450 Fift Street, N.W.
Washigton, D.C. 20549

Re: KDSM, Inc. and Sinclair Capital Under Investment Company Act Rule 38-5 Dear Mr. Murhy:
On behalf of KDSM, Inc. ("KDSM"), a Marland corporation, and Sinclair Capital, a Delawar business tr and based on the facts described below, we request a sttement by the st of the Division of Investent Manement (the "Sta) of the Securties and Exchange Commssion (the "Commssion") that the Sta will not recommend enforcement action to the Commssion ifKDSM and Sinclai Capita do not register as investent companes. KDSM is an operatig company tht also will fuction as a fiance subsidiar of its parent company, Sinclai Broadcas Grup, Inc. ("Sinclair Broadcas"). As discussed in grater detail below, we believe that KDSM will not be an investent company beus it either (i) will be excepted by section 3(b)(1) of the Investent Company Act ("Company Act") because it will be engaged priarly, directly or though wholly-owned subsidiares, in a business or businesses other than that of investng, reinvesting, ownng, holding, or trding in securties or, \ alternatively, (ii) will be exempted by rule 3a-5 under the Company Act as a finance subsidiar )

Jack W. Murhy, Esq. CONFIDENTIA TREATMENT REQUESTED Febru 21, 1997 BY KDSM AND SINCLAIR CAPITAL
Page 2 PURUANT TO 17 C.F.R. § 200.81
that complies with the rule's requirments including, in paricular, those in subparagrph (a)(5) concernng the use of offenng or borrowing proceeds. Sinclair Capita is a wholly-owned subsidiar ofKDSM that, unike KDSM, will engage in . no business other th its activities relating to its sttu as a fiance company. Sinclair Capital will issue preferrd secunties to investors that will be guteed by its ultimate parent, Sinclair Broadcas. As fuer discussed below, we believe that Sinclai Capita will be exempted by rule 3a-5 under the Company Act as a finance subsidiar that complies with the rule's requirements including, in paricular, those in subpargrph (a)(2) concernng the parnt company guantee.
i. Background
A. Genera Strctue

KDSM own all of the common secunties of Sinclair Capita. KDSM is an indirctly wholly owned subsidiar of Sinclair Broadcas, a Marland corporation. Sinclair Broadcast is a broadcasing company that own or provides progrng services to television and raio stations. KDSM owns, or will own, together with its wholly owned subsidianes, in addition to all of the voting secunties of Sinclair Capita, the assets and operations ofKDSM-TV in Des Moines, Iowa. These other assets ar expected to have an estimated curnt value of

approximately $50 milion.

Sinclair Broadcas fonned Sinclair Capita for the sole purose of providing fiancing for the operations of Sinclair Broadcast via an offerig ofSiIclair Capita preferrd secunties (the

"Public Preferred"). Sinclair Capita will sell to investors Public Preferrd and will use the net proceeds to purchase senior debentus from KDSM (the "KDSM Debentus"). All expenses of Sinclair Capita will be paid by KDSM. Although the amount of Public Preferred to be sold is stil subject to fial detennintion, for purses of ths letter, we have assued that the Public Preferred will have a liquidation preference totaing $200 millon. KDSM will, in tu, use the proceeds from the sae of the KDSM Debentus to purchas preferrd stock issued by Sinclair Broadcas (the "Parnt Preferrd"). Sinclai Broadcas will issue a gutee for the benefit of the Public Preferrd holders (the "Sinclai Broadcas Guatee") that, as discussed below, is modeled on gutes permtted by the Sta in pnor interpretive and no-action letters. Sinclair Capita will own no assets other than the KDSM Debentus. Sinclair Broadcas electe ths the-tiered stctu to comply with cert restrctions in

the indentues relating to pnor debt obligations and in light of ta considerations. In paricular,

Sinclai Broadcas and its subsidianes generaly, ar restcted under the tenns of its indentues from issuing additional debt but may, under cert circumstces, issue preferrd stock.

Despite the indentu restctions, Sinclai Broadcas is penntted to designate certn subsidianes as "unstcted subsidianes" that may issue their own debt. Sinclai Broadcast will designate KDSM as an unstcted subsidiar. Sinclair Broadcas and KDSM ar members of the sae consolidated group for federal income ta puroses. As a result, Sinclair Broadcast will be, in effect, entitled to an income ta deduction for interest paid on debt issued by KDSM

Jack W. Murhy, Esq. CONFIDENT TREATMENT REQUESTED Febru 21, 1997 BY KDSM AN SINCLAIR CAPITAL
Page 3 PURSUAN TO 17 C.F.R. § 200.81
to non-group members. Sinclai Capita will be a grtor tr for federal income ta puroses. Sinclair Capita will not be a member of the consolidated group for federal income ta puroses because only entities that are taable as corprations may be members of a consolidated ta group. Accordingly, KDSM can issue debt securties to Sinclai Capita and obtan a deduction for the interest, effectively enabling Sinclair Broadcas to obta interest deductions without violating the terms of its indentues. For your convenience, a stctural diagr of the proposed trsaction is provided below:

Sinclair Broadcast Group, Inc. lOO of Pn of Common Stk KDM Senior Debentu Parent lOO of Prferr Common Stk

KDSM, InC.
Common Public Investors Pr of Preferr Seuriies Seun_ (39 of capitl) aD Se Comm Ne Cu Pr of Publi Ofer of Prfer Seur Sinclair Capital ')

Jack W. Murhy, Esq. CONFIDENTIA TRATMENT REQUESTED Febru 21, 1997 BY KDSM AND SINCLAI CAPITAL

Page 4 PURUANT TO 17 C.F.R. § 200.81
B. Terms of the Sinclair Capital Preferrd Shars Sinclair Capital will sell Public Preferrd shaes to investors. Although the amount of Public Preferrd to be sold is stil subject to fial determintion, for puroses of ths letter, we _ have assumed that it will have a liquidation preference totaing $200 milion. Depending on market conditions at the time of the offerig, Sinclair Capita may sell a greater or lesser number of shares of Public Preferrd. The distrbution preference rate is likewise yet to be determined.

Sinclair Capita will use cash received from payments on the KDSM Debentues to make distrbutions on the Public Preferred, and Sinclair Capita will be unable to declare distbutions or redeem the Public Preferrd in the absence of such payments. Sinclair Capita mus redeem the Public Preferrd for cash at the liquidation preference plus accumulated and unpaid distbutions at the end of 12 year uness it does not have suffcient fuds to do so due to a default by KDSM on its obligation to repay the KDSM Debentues at matuty. Similarly, Sinclair Capita must redeem the Public Preferred ifKDSM redeems the KDSM Debentues prior to matuty. If an event of default on the KDSM . at least 25% in aggregate liquidation value of the Public Debentues occur, the holders of

Preferred will have the right to direct the trstees of Sinclair Capita to declare the principal of and interest on the KDSM Debentues immediately due and payable. If Sinclair Broadcas (or one or more of its subsidiares which collectively own directly or indirectly 50% or more of the company's consolidated assets) becomes banpt or insolvent or the holders of a majority in aggregate liquidation value of its Public Preferred, may be dissolved and liquidated. In addition, Sinclair is dissolved or liquidated, Sinclai Capita, at the option of

Capital will liquidate and dissolve upon the expiration of its term in 2015 ifit has not previously liquidated and dissolved. Upon an event of default of the Public Preferred, the holders of a the Public Preferrd will have the right to elect majority in aggregate liquidation preference of new trstees of Sinclair Capita.1 .
C. Terms of
the Sinclair Broadcas Guatee
Sinclai Broadcas will unconditionally gutee, on a junor subordinated basis, the

payment in ful under the Public Preferrd of:

(a) any accrued and unpaid distbutions on the Public Preferrd that have been

theretofore declard on the Public Preferrd from fuds of Sinclai Capita legally available therefor in accordance with the Sinclai Capita ti agrement; l! Events of default on the Public Preferrd include the failur of Sinclair Capita to make

\ distbutions for any period for which KDSM pays interest on the KDSM Debentues and any

event of default on the KDSM Debentus.

Jack W. Murhy, Esq. CONFENTIA TRATMNT REQUESTED Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL
Page 5 PURUAN TO 17 C.F.R. § 200.81
(b) the redemption pnce payable with respect to any Public Preferrd called for redemption by Sinclair Capita from fuds legally available therefor in accordance with the tenns of the Sinclair Capita tr agrement; and (c) upon a volunta or involunta dissolution, widing-up or tennination of

Sinclair Capita (other th in connection with a redemption of all of the Public

Preferrd), the payment of an amount if, when, and to the extent holders of the Public Preferred ar lawflly entitled to payment thereof frm Sinclair Broadcast equa to the lesser of (i) the full liquidation preference plus accumulated and unpaid dividends to which the holders of the Public Preferrd ar lawfly entitled, and (ii) the amount of . Sinclair Capital's legally available assets remaining afer satisfaction of all clais of

other paries which, as a matter oflaw, ar pnor to those of the holders of the Public Preferred. The Sinclair Broadcas Guatee will be unecurd and is expected to be subordinate to most or all other liabilties of Sinclair Broadcast. Under the tenns of the Guatee, any holder

of Public Preferrd may intitute a legal proceeding directly agains Sinclair Broadcas to enforce its nghts under the Sinclai Broadcas Guatee without fi inituting a legal proceeding against Sinclair Capital or any other person or entity. D. Terms of the KDSM Debentus KDSM will sell Sinclair Capital the KDSM Debentues for roughy $200 milion, assuming Sinclair Capita sells 2 milion shars of the Public Preferred. The KDSM Debentues will have an aggregate pnncipal amount equa to the purchase pnceand an interest rate equa to the distbution rate on the Public Preferrd. They will matu in 2008 and will be securd by a pledge of the Parnt Preferrd. The abilty ofKDSM to make payments on its debentus depends pnmarly on its receipt of dividends on the Parnt Preferrd. In addition, because KDSM own KDSM- TV, it may be able to finance payments on its debentus though the cash flow generated by the operations ofKDSM-TV in the event incient dividends ar received.

KDSM may redeem the KDSM Debentus for cash at the liquidation value plus accumulated interest and a spcified premium any tie afer five year from issuace or upon a

"Tax Event" or an "Investent Company Act Event."l' In addition, if a Tax Event occur, KDSM can caus Sinclai Capita to dissolve and distbute the KDSM Debentus provided that ths option can only be exercised if Sinclai Broadcas is able, at the time of such an event, to l' A Tax Event is defied, among other thgs, to include cert clarfications or changes

in ta law involving unexpected taation of the activities ofKDSM or Sinclai Capita or that would cause Sinclair Broadcas on a consolidated basis to lose its ta deduction for interest on the KDSM Debentues. An Investent Company Act Event is defied as a change or ./ \ I clarfication of law that would cause Sinclair Capita or KDSM to be considered an investment company under Section 3 of the Company Act.

Jack W.Murhy, Esq. CONFIDENTIA TRATMENT REQUESTED Febru 21, 1997. BY KDSM AN SINCLAIR CAPITAL
Page 6 PURSUAN TO 17 C.F.R. § 200.81
fully and unconditionally gutee the KDSM Senior Debentus on a junor subordinated basis effective at the time of the distrbution ofKDSM Debentus. Sinclair Broadcas could not provide such a guartee as of the date of the offering beaus of restctions in its existing debt agreements. Prior to the year afer issuce, KDSM may also redeem up to 50% of the

the Parnt Preferrd for cash at the liquidation value plus accnied interest and a spified premium. KDSM Debentus with the proceeds ofa redemption of

KDSM will covenat that it will not, nor will it permit any of its subsidiares to, incur or gutee or otherwse in any maner become dirctly or indirectly liable for any indebtedness, except that KDSM may incur indebtedness if the debt to anua operating cash flow ratio of KDSM and its subsidiares at the time such indebtedness is incurd (afer giving pro forma effect thereto), is 4 to 1 or less. In addition, and notwthding the ratio, KDSM will not be restrcted from issuing the KDSM Debentues, trde debt in the ordinar course of business, and debt for working capital puroses not to exceed $5 milion. E. Terms of the Parnt Preferrd The Parnt Preferrd will have a distbution rate that will be up to one percentage point higher than the interest rate of the KDSM Debentus and a liquidation preference equa to the principal amount of the KDSM Debentus. Sinclai Broadcas will have the option to repay the Parent Preferred in the sae cirumstces and at the sae redemption prices as KDSM will have the option to redeem the KDSM Debentues. The Parent Preferred will have a stted matuty of approximately 12 year and will be mandatorily redeemable on its matuty date. The holders of a majority in aggregate liquidation value of the outstding Parnt Preferrd will have the right to cause Sinclair Broadcast to increase the size of its board of directors by two members and will have the right to elect the two new directors upon Sinclair Broadcas's failur to: (a) pay dividends durng four consecutive quaers; (b) make and consumate a change of control offer upon the occurnce of a change of control in certn circumstces; (c) discharge any redemption obligation with respect to the

Parent Preferrd; or (d) meet its covenants on the Parnt Preferr. n. Anysis Rule 3a-5 wa adopted afer the Commission grted many exemptive applications that allowed operatig companes to rase capita though fice subsidiares. The Commission recognzed tht a varety of ta and other reguatory reasons often .caused companes to seek to

rase capita though wholly-owned subsidiares rather th doing so dirctly. Exemption from

All Provisions of the Investment Company Act of 1940 for Certain Finance Subsidiaries of United States and Foreign Private Issuers, SEC Releas No. IC-12679, 1982 WL 35650, * I (Sept. 22, 1982) ("Proposing Release"). Whle these fiance subsidiares may meet the technical defition of investent company under Section 3(a)(3) of the Company Act, the Commission business the (Company) Act was intended to regulate." Id. at *1.*2. recognzed that they "were not engaging in the kid of

Jack W. Murhy, Esq. CONFENT TREATMNT REQUESTED Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL . PURSUAN TO 17 C.F.R. § 200.81 Page 7

The primar intent of the Commission in developing Rule 3a-5 was to exempt appropriate reguation while assug that "neither the stctue nor subsidiares from counterproductive

resembles tht of an investent company." mode of operation of a quaifyg fiance subsidiar

Exemption From the Definiton of Investment Company for Certain Finance Subsidiaries of United States and Foreign Private Issuers, SEC Relea No. IC-14275, 1984 WL 52669, *3 (December 14, 1984) ("Adopting Release"). According to the Commssion:
We have found ths to be the cas where the primar purse of the subsidiar is to finace the business operations of its parnt or other subsidiares of its parnt which are. not investent companes. We have also found ths to be the cas where any purchaser of the finance subsidiars debt inents ultimately looks to the parnt for repayment

and not to the finance subsidiar. The nie, therefore, describes a sitution where the

finance subsidiar is essentially a conduit for the parnt to rase capita for its own business operations or for the business operations of its other subsidiares. Id. ths natu, the Commission imposed To assure that quaifyg financing subsidiares ar of

Rule 3a-5. In suar, these ar:
six limitations on their activities in pargrph (a) of

(1) Any debt of the fice subsidiar issued to or held by the public mus be

unconditionally guteed by the parnt; the finance subsidiar issued to or held by the (2) any non-voting preferred stock of

public must be unconditionaly guteed by the parnt;

(3) the tenns of the parnt's gutee mus allow the public holders to institute legal proceedings dirctly agains the parnt to enforc the gutee without firs proceeding agaist the finace subsidiar;

(4) any securties issued by the fiance subsidiar tht ar convertible or

exchageable mus be convertble or exchangeable only for seurties issued by the parnt or for debt or non-votig preferrd of the finace subsidiar meeting the above

requiments;
(5) the fice subsidiar mus invest in or loan to its parnt or a company

the proceeds frm offerigs of the fiance controlled by its parnt at leas 85% of

subsidiars debt or non-votig preferrd securties, or any other borrwigs, as soon as practicable, but in any event with six month afer receipt; and (6) the finance subsidiar mus own, hold or trde in only Governent securties, securties of the parnt company or a company controlled by the parnt, or debt securties the Securties Act of 1933 (Securties Act") which ar exempted frm the provisions of

by Section 3(a)(3) of that Act.

Jack W. M¡nhy, Esq. CONFENT TRATMNT REQUESTED
Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL
Page 8 PURUAN TO 17 C.F.R. § 200.81
KDSM has been stctud to satisfy the reuiments of parph (a) of Rule 3a-5. KDSM will not issue any preferrd stock or debt to the public, elimting the need for any gutee that otherwse might be requid under subparphs (a)(I), (a)(2), and (a)(3).lI Because securties issued by KDSM will not be convertble or exchageable, subpargrph . (a)(4) is inapplicable (and any volunta dissolution ofKDSM in whicli KDSM Debentus are distbuted is conditioned on such debentus being guteed by Sinclai Broadcas). KDSM will own, hold or trde in only Governent securties, securties of Sinclair Broadcas or a . company controlled by Sinclai Broadcas or debt securties which ar exempted from the provisions of the Securties Act by Section 3(a)(3) of tht Act as requid by subpargrph (a)(6). As discussed in grater detal below, we believe that KDSM will comply with the remaining provisions of Rule 3a-5, including the use of proceeds requirement of subpargrph (a)(5) and the definition offinance subsidiar in pargrph (b). pargrph (a). Sinclai We also believe tht Sinclai Capita meets the requirements of

Capita will not issue any debt to the public, elimatig any need to comply with subpargrph the (a)(1). Sinclai Broadcas will, as discussed below, issue an unconditional gutee of

Public Preferred stctud to comply with the Stas inteipretations of subpargrph (a)(2). The

Sinclai Broadcas Guatee will give the Public Preferrd holders the right to proceed dirctly the gutee without first proceeding against against Sinclair Broadcas to enforce the tenns of

Sinclair Capita, thus complying with subpargrph (a)(3). Neither the Public Preferred nor any other securty issued by Sinclai Capita will be convertble or exchageable into any other securty, thus renderig the requiements of subpargrph (a)(4) inapplicable, as discussed below. Sinclair Capital will invest substatially all of the' net offerig proceeds in KDSM, a company controlled by Sinclair Broadcas as soon as practicable, but in any event withn six subpargrph (a)(5). Finally, month afer receipt, thereby satisfyg the requirements of

Sinclai Capita will own, hold or trde in only Governent securties, securties of Sinclair Broadcast or a company controlled by Sinclai Broadcas, or debt securties which ar exempted from the provisions of the Securties Act Section 3(a)(3) in compliance with subpargrph (a)(6). Rule In our view, KDSM and Sinclai Capita ar able to comply with the requiments of

3a-5 becaus they ar engaged in the ty offiancing activities that the Commssion envisioned when it promulgated Rule 3a-5. Jus as the CommssÌon intended, both entities ar stctud to

li See PSEG Capital Corp., SEC No-Action Letter, 1988 WL 234525 (July 13,1988)

(private placement of non-guteed debt securties permtted by the Sta in light of the fact that Rule 3a-5 only requis the gutee of securties "issued to or held by the public"); see also Societe Generale and SGA Society Generale Acceptance N. V., SEC No-Action Letter, 1992 WL 75606 (Feb. 14, 1992) and MEC Finance USA, Inc., SEC No-Action Letter, 1991 WL 243175 (Oct. 25, 1991) (securties sold in public offerigs to persns outside the United States Rule 3a-5 and accordingly need not be are not "issued to or held by the public" for puroses of

guteed by the parnt company).

Jack W. Murhy, Esq. CONFIENT TRATMENT REQUESTED Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL

Page 9 PURUAN TO 17 C.F.R. § 200.81
raise capita for their ultimate parnt becaus of business and ta considerations. Specific issues

associated with KDSM and Sinclai Capita ar discussed below.
A. KDSM. the Definition of
Finance Subsidiai. and the "Primai PUTose" Test As a prelimina matter, an entity seking to rely on Rule 3a-5 mus fall with the fiance subsidiar provided in subpargrph (b)(I). Tht subpargrph provides that a finance subsidiar mean any company:!' definition of

(i) all of whose seurties other th debt or preferrd stock meeting the requirements of subpargrphs (a)(l) thugh (a)(3) or dirctors' quaifyng shas are owned by its parent company or a company contrlled by its parnt company; and its parnt which is to finace the business operations of (ii) the primar purse of

company or companes controlled by its parnt company.
These requirements serve to insur that the finance subsidiar is a conduit though which the parent rases capita. Adopting Releas at .6. KDSM will comply with subpargrph (b)(I)(i) both intially and for so long as it relies on Rule 3a-5. Intially, KDSM will issue securties only to Sinclair Broadcas and Sinclair CapitaL. Sinclair Broadcas meets the defition of "parent company" as it is a corpration, which is not an investent company under Section 3(a), or is excepted or exempted from that definition puruat to Section 3(b) or the rues under Section 3(a), and which is organzed under the laws of

Marland. The KDSM Debentus issued by KDSM to Sinclair Capita will not be publicly offered, and thus subpargrphs (a)(I) though (a)(3) will be inapplicable. IfKDSM issues additional securties, whether debt or equity, such securties will be limited to those pennitted by pargrph (b) for so long as KDSM relies on Rule 3a-5. The only substtial queston about whether KDSM falls withn the definition of fiance subsidiar relates to the priar purose requiment of subpargrph (b)( 1 )(ii). As noted previously, KDSM own and will contiue to own assets other th its interest in Sinclai Capita and the Parnt Prferr. We believe tht such operations will be subsidiar to its priar purse of ficing the operations of Sinclai Broadcas and accordingly that KDSM

meets the defition of fice subsidiar.

Neither Rule 3a-5, nor the releases accompanyig its proposa and adoption, defie priar purose. The Proposing Releas made clear tht the reason for the primar purse test

~ Whle subpargrph (b )(1) uses the tenn "corporation," in severa no-action letters the Stahas allowed Delawar business tr to rely on Rule 3a-5. See Lehman Brothers, Inc., ) SEC No-Action Letter, 1995 WL 329629 (May 26,1995); Goldman, Sachs & Co., SEC No￾Action Letter, 1995 WL 271721 (April 27, 1995). .i

Jack W. Murhy, Esq. CONFENT TRATMENT REQUESTED Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL
Page 10 PURUAN TO 17 C.F.R. § 200.81
was to "ensur that the exemption does not provide a vehicle thugh which some other tye of investment company warting reguation might evade the (Company) Act." Proposing Release at *4. In response to comments that were cntical of the priar purse requiment, the

Adopting Releas made it clear that a fice subsidiar ca hold other assets not invested with

. the parnt and stll quaify:
The Commssion has decided to retan the pnmar purse test in the fi rule; to do

otherwse would be inconsistent with the rue's underlyig rationale. If a subsidiar were to be engaged prianly in non-finacing activities, it could not be considered a conduit for the parnt to rase capita. In addition, the Commssion notes that the primary purpose test by no means prevents a finance subsidiary from engaging in non￾financing activities so long as its primary purpose is to engage in financing activities. Adopting Release at *6 (emphasis added). Whle the Commssion has not yet expanded upon ths explantion, in simlar contexts, in determnig the business in which a company is "pnmanly engaged," the stha used the

maner in which the assets of a company ar deployed as the predominant factor. "In vanous context, the tenn 'pnmanly engaged' in a business has been taen to mean that at leas 55% of a

company's assets ar employed in, and 55% of a company's income is denved from, that business." Exemption from the Investment Company Act of J 940 for the Offer and Sale of Securities by Foreign Banks and Foreign Insurance Companies and Related Entities, SEC Release No. IC-17682, 1990 WL 321555, *17 n.33 (Aug. 17, 1990); see also Econo Lodges of America, Inc., SEC No-Action Letter, 1989 WL 246651 (Dec. 22, 1989) (agreing that the requestor quaified for a Section 3(c)(5)(C) exception where 55% of the company's assets were invested in quaifyg assets and the company planed to lend 85% of the proceeds of a public offenng to its parnt). In our view, the pnmar purose of KDSM is to fiance the operations of Sinclai Broadcas. The substatial majonty of its assets will be used to engage in fiancing activities. KDSM will purha Parnt Preferrd with the offerig proceeds frm the sae of the KDSM Debentus. KDSM also will own the operations ofKDSM-lV which ar expected to have a curnt value of approxiately $50 millon. Although the precise offerig proceeds may var depending upon market conditions, under any scenano well over 55% ofKDSM assets would be used dirctly in KDSM's ficing activities upon completion of the offerig. KDSM's remainig assets will indirctly faciltate these fiancing activities. We note in parcular that KDSM mus reta operating assets because of its financing activities, and not due to any attempt to evade the purses of the Act or become a defacto investent company. Sinclair Broadcas has been advised that it could not replace KDSM with a fiance subsidiar ownng no substtial assets other than the Parnt Preferrd and retan its abilty to deduct interest paid on the KDSM Debentus.

Jack W. Murhy, Es. CONFDENT TRATMNT REQUESTED

Febru 21, 1997 BY KDSMAN SINCLA CAPITAL .

Page 1 I PURUAN TO 17 C.F.R. § 200.81

We acknowledge, however, that it may be possible to view KDSM as priarly engaged. in a non-investent business due to the fact that the day by day activities of its offcei' and employees pnmarly relate to its broadcas business, it is known as a broadcas sttion operator, and may contiue to operate its broadcas sttion afer any ficing activities ar teminated. If

KDSM fails to meet the "priar purse" test of subpargrph (b Xl Xii) beaus it is deemed to be priarly engaged in its broadcasing business, we ar of the opinon that it would be excluded frm the defition of investent company puruat to Section 3(bXI) of the Company . Act. Section 3(b)( 1) excepts companes that meet the prima facie definition of investent company in Section 3(a)(3) but that, dictly or though wholly-owned subsidiares, ar engaged priarly in a business or businesses other than investg, reinvestng, ownng, holding or

trding in securties. Although KDSM expects to hold a broadcas license in a wholly-owned subsidiar, it has no other subsidiares. Accordingly, we ar of the opinon tht KDSM is not an investent company because it either (i) is priarly engaged dirctly or though wholly-owned subsidiares in a business or businesses other than investg, reinvesting, owng, holding, or trding in securties or, (ii) ifKDSM is deemed to be priarly engaged in owng or holding securties due to its financing activities, its "priar purse" would be to engage in financing activities and, subject to the sts concurence with our views concernng subpargrph (a)(5) as discussed below, it complies with the remainig provisions of Rule 3a-5. B. Additional Borrowings by KDSM To avoid any question about KDSM's sttu as an investent company, we seek the Stas concurence that KDSM would be in compliance with subpargrph (a)(5) assumg that it meets fiance subsidiar. Subpargrph (a)(5) requis that a financing subsidiar invest in or loan to its "parnt company" or a "company contrlled by the parnt company" at leas 85% of the proceeds of an offenng of debt, non-voting preferrd securties, or other the definition of

borrowings as soon as practicable and in any event with six month afer receipt of the

proceeds. According to the Adopting Release, in the absence of such a requirement, "the finance subsidiar could act as a de facto investent company for an indefinite penod." Adopting Release at *7. KDSM wil invest all of the net offerig proceeds in Sinclai Broadcas simultaeously with their receipt, therby complyig with subparph (a)(5) intially. KDSM, however, would be both a fice subsidiar and an operatig company. KDSM thus ha retaed the nght to isse additiona debt to fice its operations, although such rights ar substtially

restcted under the term of the KDSM Debentus. As discussed above, in addition to issuing the KDSM Debentus, KDSM can incur trde debt in the ordi cour of business, debt for working capita puroses not to exceed $5 millon, and additiona indebtedness only if the debt to operatig cash flow ratio ofKDSM when such indebtedness is incurd, afer givig pro forma effect thereto, is 4 to i or less. We believe that KDSM's nght to incur additional debt offends neither the policy nor the letter of the Rule.

Jack W. Murhy, Esq. CONFENT TRATMNT REQUESTED
Febru 21, 1997 BY KDSM AN _SINCLAI CAPITAL
Page 12 PURUAN TO i 7 C.F.R. § 200.81
As a matter of policy, the reasn for preserving KDSM's right to incur additiona indebtedness is to help assur that its operatig business can fuction. KDSM will not incur additional debt for investent puroses. Rather, as the owner and operator of an existing

television sttion, KDSM ha and will continue to have ficial obligations and needs tht

relate to its continued mangement of the television sttion. The concern expressed in the Adopting Releas - that a finance subsidiar tht retaed offerig proceeds might fuction as a de facto investent company -- simply is not present. As far as the letter of the rue is concerned, we believe tht the abilty to incur additional debt also is consistent with subpargrph (aXS). KDSM will age tht it will invest in or loan to Sinclair Broadcas or companes other than itself tht ar contrlled by Sinclai Broadcas at leas 85% of the cumulative proceeds of all issued and outsding debt securties or non-voting preferred stock or any other debt (collectively, "fiancings") as soon as is practicable, but in any event withn six month afer receipt of any cash puruat to a ficing. Thus, ifKDSM rases $200 milion though KDSM Debentus and own Parnt Preferrd for which it ha paid $200 milion and which has not been redeemed, it could rase approxiately $35 milion of additional

debt or non-voting preferrd and us the proceeds to finace its operations ($200 milion is slightly more than 85% of $235 millon).

We would like to emphaize tht KDSM will not us the abilty to rase additional debt or offering proceeds for securties investent purses. KDSM will continue to comply with the rue, which will prevent it from. owng securties other than Governent securties, securties issued by Sinclair Broadcas or companes controlled by Sinclair Broadcas, or debt securties exempted by section 3(a)(3) under the Securties Act. subpargrph (a)(6) of

Moreover, KDSM will us any debt or offerig proceeds, other th those tht ar promptly

forwarded to Sinclai Broadcas or companes -contrlled by Sinclai Broadcas, solely to fiance its broadcas operations (or such other non-securties investent business or businesses in which it may be engaged in the futu).

Given the limtations on KDSM's investent activities, interpretig the 85% requirement on a cwnulative, rather th an offerig-by-offerig, basis is consistent with the primar purose requiment of subparph (bXl) as well as subpargrph (aX5)'s intent to ensur tht a the outsding pricipal amount of debt and preferrd stock is included in the calculation, at all fiance subsidiar does not beome a de facto investent company. So long as all of

times the vas majority of the outsdig ficing activity ofKDSM will be dirctly tied to finacing the activities of Sinclai Broadcas and its other contrlled companes. In addition, the limtations on the puroses for which KDSM can reta additiona debt provides fuer assurce that it will not be used as a device to evade the policies underlyig, and provisions of, the Company Act.

Jack W. Murhy, Esq. CONFENT TRATMNT REQUESTED
Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL

Page 13 PURUAN TO 17 C.F.R. § 200.81

2) in the event of a liquidation, to unconditionaly gutee the payment of the
lesse of
~ Intially, the Public Preferrd may be.offered in a non-public offerig exempted from the

registtion requirements of the Securties Act by Section 4(2) of that Act or the rues and reguations thereunder. Becaus Sinclai Capita expects to grt registtion nghts to holders of

the Public Preferrd even if these securties intially ar offered pnvately, it is trating such securties as if they were publicly issued ab inito for purses of the gutee requirment

Jack W. Murhy, Esq. CONFENT TRATMENT REQUESTED Febru 21, 1997 BY KDSM AN SINCLA CAPITAL
Page 14 PURUAN TO-17 C.F.R. § 200.81
i) the ful liquidation preference plus accumulated and unpaid dividends to which the preferrd stockholders ar lawfly entitled, or ii) the amount of the subsidiars assets remaig afer satisfaction of other paries havig clais which, as a matter oflaw, ar prior to those of the preferrd stockholders."

Cleary at .3.
Cleary presented the gutee issue on a purly policy basis, without identifyng or describing any paricular proposa. The Sta subsequently was asked to consider subpargrph (a)(2) in a specific fact setting in Chieftain Intl Funding Corp., SEC No-Action Letter, 1992 WL 335318 (Nov. 3, 1992). Like the curnt proposa, Chieftain involved a multi-tiered stctue.

Chieftn International Funding Corp. ("Funding Corp.") was a wholly-owned subsidiar of

Chieft International (U.S.), Inc. ("Chieft U.S.") which was in tu a wholly-owned subsidiar of Chieftn Interntional, Inc. ("Chieftn Canda"). Funding Corp. intended to issue

preferred stock to the public and loan the proceeds to or invest them in Chieftn Canada or its subsidiares for use in business operations. The preferrd would be convertble into shs of Chieftn Canada common stock at the option of the holders at any tie. Chieft Canada planed to unconditionally gutee on a subordinted basis:
(i) the payment of dividends, when, as and if properly declard by Funding Corp.'s Board of Directors, out of fuds legally available therefor; (ii) in the event of liquidation, the payment of an amount if, when and to the extent holders of Preferrd Stock ar lawfly entitled to payment thereof from Funding Corp. equa to the lesser of (a) the ful liquidation preference plus accumulated and unpaid dividends to which the holde~ of Preferrd Stock ar lawfly entitled and (b) the amount of Funding COrp.IS assets remaing afer

satisfaction of all clais of other paries which, as a matter of law, ar prior to those of the holders of Preferrd Stock; (and)

(ii) in the event of redemption, the payment of the redemption price. .. if, when and to the extnt holders of Preferrd Stock ar lawfly entitled to payment thereof from Fundig Corp.

The Sinclai Broadca Guatee is modeled on and substtially identical to the gutees in Cleary and Chieftain. All the gutees gutee the payment of dividends

lawfly declared. Specifically, Sinclai Broadcas will gutee the payment of any accrued

and unpaid distbutions on the Public Preferrd that have ben theretofore declard on the Public Preferrd from fuds of Sinclai Capita legally available therefor in accordace with the ' Sinclai Capita tr agrement. In Cleary the Sta approved a parnt gutee of 'te payment of dividends on the subsidiars non-voting preferrd stock, which have been properly

declared by the subsidiars board of dirctors." Cleary at .3. Chieft proposed to gutee

Jack W. Murhy, Es. CONFENT TRATMNT REQUESTED
Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL

Page 15 PURUAN TO 17 C.F.R. § 200.81
"the payment of dividends, when, as and if properly declard by Funding Corp. 's Board of Directors, out offuds legally available therefor." Chieftain at .2. All the gutees gutee upon liquidation the lesser of the liquidation preference plus accuiulated and unpaid dividends, and assets remainig afer prior claims ar paid.

Specifically, Sinclai Broadcas will gutee upon liquidation the payment of the lesser of:
(i) the ful liquidation preference plus accumulated and unpaid dividends to which the holders of the Public Preferrd ar lawfly entitled; and (ii) the amount of Sinclai Capita's legally available assets remainig afer satisfaction of all clais of other pares which, as a matter of the Public Preferrd. In Cleary the Sta approved the the lesser ofi) the ful liquidation preference plus law, ar prior to those of the holders of

gutee upon liquidation of "the payment of

accumulated and unpaid dividends to which the preferrd stockholders ar lawfly entitled, or

ii) the amount of the subsidiars assets remaig afr satisfaction of other paries havig clais which, as a matter oflaw, ar prior to those of the preferrd stockholders." Cleary at .3. Chieft proposed to gutee upon liquidation the payment of "an amount if, when and to the extent holders of Preferrd Stock are lawfly entitled to payment thereof from Funding Corp.

equa to the lesser of (a) the ful liquidation preference plus accumulated and unpaid dividends to which the holders of Preferrd Stock are lawflly entitled and (b) the amount of Funding Corp.'s assets remaining afer satisfaction of all claims of other paries which, as a matter of law, are prior to those 'ofthe holders of Preferrd Stock." Chieftain at .2. Latly, all the gutees allow the public holders to insitute legal proceedings directly

againt the parnt without firs proceeding agai the fice subsidiai. In om view, the

Rule 3a-5 set out in Cleary and applied in Chieftain.
Sinclair Broadcas Guatee meets the Stas interpretation of

We believe that one aspect of the gutee tht was not expressly discussed in Cleary and

Chieftain merits discussion: the meang of the sttement that the parnt will gutee payment of "the amount of the subsidiars" lawfly available assets remaig afer satisfaction of

claims if ths "amount" is less th the ful liquidation preference plus accumulated and unpaid

dividends. In parcular, we believe tht the gutee of the "amount of the subsidiars assets"

does not requi tht the pant deliver the ciih equivalent value of these assets, but rather tae direct respnsibilty for ensg tht the subsidiai promptly deliver to the holders of its

preferrd securties any iisets held by the subsidiary that lawfully can be distrbuted. Any requiment tht the parnt gutee the delivery of the cash equivalent value of the assets of a finance subsidiai would, in effect, amount to a requiment that the parnt gute "the existence of a cert amount of assets legally available for distbution" tht the Sta in Cleary stted was inconsistent with the intent of Rule 3a-S. In ths regar, we note tht Sinclai

Broadcas may be precluded from promising to deliver the cas equivalent value of any liquidation preference under the terms of itS curnt indentus. As discussed in Par I.B., above, Sinclai Capita may be liquidated and dissolved in the absence of a redemption of the Public Preferrd for their ful liquidation preference plus

Jack W. Murhy, Esq. CONFENT TRATMNT REQUESTED
Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL
Page 16 PURUAN TO 17 C.F.R. § 200.81
accumulated and undistbuted dividends if: (i) a majority in interest of the holders of the Public Preferred so elect afer Sinclair Broadcas becomes banpt, inlvent, dissolves, or liquidates; (ii) a Tax Event occur and KDSM Debentus ar the sole ast distbuted and ar fuly and unconditionally guteed by Sinclai Broadcas on a junor subordted basis effective at the . time of the distbution, or (ii) in the year 2015 if Sinclai Capital ha not previously liquidated

and dissolved (which could occur only if the KDSM Debentus were in default). It is impossible to predict with complete certty what assets would be owned by - and therefore . available for distbution from - Sinclai Capita in the event of a liquidation (other than one involving a distbution of the guteed KDSM Debentus) without a prior redemption of the Public Preferrd for cash. However, such asset$ could include KDSM Debentus or, in some cases, any rights or other assets tht Sinclair Capita gaied as holder ofKDSM Debentus. We believe that the parnt's gutee that it will cause the fiance subsidiar promptly to distbute any assets remaig afer resolution and satisfaction of prior clais without requig that legal the fice subsidiar fully satisfies subpargrph (a)(2) with respect to (i) and (ii), above.!' action be brought agains or demand be made of

Although not directly discussed in Cleary and Chieftain, out interpretation is consistent with many other trctions tht relied on those letters. Moreover, a contr interpretation would severely disrupt the abilty of fiance subsidiares to issue preferrd stock by requiring precisely the tye of collection gutee tht was rejected by the Sta. For example, in Ford Motor Company Capital Trut I, SEC No-Action Letter, 1996 WL 435548 (Aug. 2, 1996), Ford Motor Company ("Ford") and Ford Motor Company Capita Tru I (the "Tru") sought an exemption from the periodic reporting requirements of Sections 13 and 15(d) of the Exchange Act. Whle Ford and the Tru did not seek assurce concerng Rule 3a-5, the trction

relied on the rule (Ford at *2) and is representative oftrsaciions that comport to the Cleary and Chieftain positions.Z¡ As described in the requestg letter, "(t)he Preferrd Securties

Guatee consitutes a gutee of payment and not of collection." Ford at *9. The no-action request subsequently described how the gutee would fuction. Fir the request noted that

!' As note previously, any volunta determtion to dissolve and liquidate KDSM

Debentus is conditioned upon the existence of a ful and unconditiona gutee of such debentus, thus elimtig any concern tht a volunta liquidation would be usd as a

mechasm to evade a gute.

z¡ Ford is substtially identical to a large number of simlar letters under the Exchange

Act. Like Ford, each letter sttes tht the gutee is one of "payment and not of collection,"

and makes it clear that non-cash asts might be distbuted upon a liquidation of the fiance

subsidiar without any cash payment of a liquidation preference or its equivalent. See, e.g., Salomon Inc., SEC No-Action Letter, 1997 WL 47183 (Feb. 5,1997); Texas Utilties Electric Co., SEC No-Action Letter, 1997 WL 29323 (Jan. 24, 1997); Commonwealth Edison Co. SEC No-Action Letter, 1996 WL 183332 (Apr. 16,1996); Time Warner Inc., SEC No-Action Letter, 1996 WL 149073 (Apr. 1, 1996).

Jack W. Murhy, Esq. CONFIDENTIA TRATMENT REQUESTED Febru 21,1997 BY KDSM AN SINCLAI CAPITAL
Page 17 PURUAN TO 17 C.F.R. § 200.81
liquidation could occur at the matuty or early redemption of the parnt's debt securties held by the Tru, which would enable the Tru to make corrspnding payments on its preferrd securties. Second, if the Tru was liquidated without repayment of the parnt debt, the debt securties held by the Tru would be distbuted to the holders of Tru preferrd. Ford at .15. Like Ford, we believe that Sinclair Broadcas's gute tht any assets actuly owned by Sinclair Capita will be delivered in the event of a liquidation fuly complies with subpargrph (a)(2). We also would like to emphaize that ths interpretation is consistent with the underlying purses of rue 3a-S, which seeks to put the holder of securties issued by a finance subsidiar in substtially the sae position as if the holder held parnt securties directly. In ths regard,

we note that although debt and preferred securties often ar regarded as being fuctionaly equivalent, there ar certn distinctions between such securties that ar material to the natu of the parent's gutee. If a holder of debt securties is not paid pricipal or interest when due, the holder can bring a direct suit to enforce its right to an imediate cash payment. Accordingly, a holder of debt Securties issued by a fice subsidiar will be in substtially the

sae position as a holder of parent debt only if the holder simlarly can requir the parnt to

make a cash payment upon a default.
In contr, a holder of preferrd securties issued without a sinng fud ha no specific right to any payment upon the stted matuty of the securties. Rather, a holder of preferred preference plus any accumulated and unpaid dividends before any payment could be made to the holders of the securties simply would be entitled to the payment of any liquidation

issuets common securties, and might enjoy cert votig rights. Thus, a dirt holder of

preferred securties would not have any right to sue for an imediate cah payment upon stated matuty. Of coure, ths does not mean that an issuer does not have a substtial incentive to make timely and ful payments on its preferrd. Jus as if it ha not usd a fice subsidiar stctu, Sinclai Broadcas will be unble to make distbutions to its common holders afer the

matuty of the Parnt Preferrd pending payment of any liquidation preference and accumulated

distbutions relatig to the Parnt Preferrd.
Finly, Chieftain involved one element in addition to a Cleary-ty gutee tht we believe is not gerane but which we discus becaus Chieftain is the only no-action letter that addrsses subparph (aX2) in the context of a spific stctu. In Chieftain, Funding Corp.'s preferrd shs were to be convertble into Chieft Can common stock at any time at the option of the holders. For tht reasn, Chieft Canad Stted tht it would gutee performance of Funding Corp.'s obligation to deliver the proper number of shas of its common stock to the holders of Funding Corp.'s preferrd shas. In the cas of Sinclai Capita, the

Public Preferred will not be convertible or exchageable for securties of any other entity.!' !' Of coure, securties issued by KDSM might, or might not, be among the assets

distbuted to holders of Public Preferrd if
Sinclair Capita is liquidated and the Public Preferrd

Jack W. Murhy, Esq. CONFIDENT TRATMNT REQUESTED Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL
Page 18 PURUAN TO 17 C.F.R. § 200.81
In our view, the convertibilty provision was discussed in Chieftain because it was par of the paricular trsaction at issue and not because of any requirement that preferrd stock issued

by a finance subsidiai be convertible into the securties of its parnt company. Fir and foremost, Cleary made no mention of such a convertbilty featu. Second, subpargrph (a)(4) makes clear tht such convertibilty is permitted, but not required, providing simply tht any securties issued by a fice subsidiar tht ar convertble or exchageable be convertible or

exchangeable only for securties issued by the parnt or for debt or non-voting preferrd of the finance subsidiar.!' Although not spcifically sactioned by the st, we note that many other

trctions have been effected in reliance on Cleary without a convertibilty featu.

We believe that the discussion of convertibilty in Chieftain simply reflects the requestots attempt to assur the Sta that its securties would comply with subpargrph (a)(2) and that the thee-tiered stctue would not interfere with the holdets abilty to receive taget securties. Because Chieftain is the only application of the Cleary position to a spcific trction,

however, we seek confation that the Stawill not recommend enforcement action if the Public Preferred is not convertible into securties of Sinclair Broadcas.
..........
r
We believe that neither Sinclai Capita nor KDSM is the ty of entity that Congrss

intended to reguate under the Company Act. Each entity is priarly engaged in the bona fide

fiancing of the operations of
Sinclair Broadcas and its controlled companes, and the holders of the Public Preferred are able to look to the Sinclair Broadcas Guatee to assur that they ha not been redeemed for ca in accordce with its terms. Such a liquidating distbution of assets, under the limted cirumces described in ths letter, does not. constute an convertbilty or exchage featu covered by subpargrph (aX4). A holder of Public Preferrd does not have any right to caus the Public Preferrd to be exchanged or converted into another securty, and any reipt ofKDSM Debentus would merely constute the ordar distbution of Sinclai Capita's assets upon its cessation. In addition, even if the abilty to effect a volunta dissolution and distbution ofKDSM Debentus upon a Tax Event were viewed as the fuctional equivalent of convertibilty, a volunta distbution would satisfy subpargrph (a)( 4) becaus the KDSM Debentus would be fuly and unconditionaly guteed. !' In ths regard, we note tht the Sta stted tht it approved the Chieft stctu "in

paricular" because the proposed gutee conformed to the Stas "interpretation" of

subpargrph (a)(2). Chieftain at .2. The Stas only mention of the convertibilty featue was in its discussion of the deal terms.

Jack W. Murhy, Esq. CONFENT TRATMNT REQUESTED
Febru 21, 1997 BY KDSM AN SINCLAI CAPITAL
Page 19 PURUAN TO 17 C.F.R. § 200.81
receive payment. On the basis of the foregoing, we request a sttement that the Stawill not

recommend enforcement action to the Commssion ifKDSM and Sinclai Capita do not register as investent companes. Please contact Jeremy N. Rubensein at 202-663-6 i 59 or John C. Nagel at 202-663-6134 if you need additional inonnation or if you would like to discuss these matt~rs fuer.

\
,