Question
December 3, 1991
CERTIFIED MAIL RETURN RECEIPT REQUESTED
Mr. Patrick Sharp
Premerger Specialist
Premerger Notification Office
H-303
Â鶹´«Ã½ Trade Commission
Washington, D.C. 20580
Dear Mr. Sharp:
Thank you for discussing with me last week my questions regarding the interpretation of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the Act). As we discussed, our firm has a client that is engaged in the business of developing and operating (redacted) which are facilities that produce (redacted) and (redacted). In 1984 our client, through a wholly-owned subsidiary, commenced construction of three such facilities. The construction of these facilities was financed with the proceeds of construction loans provided by a financial institution. Upon completion of construction, title to these facilities was transferred to an owner trustee for the benefit of such financial institution in a sale/leaseback financing transaction. Our client, through its subsidiary, has been the operator of these facilities.
Our client, through another wholly-owned subsidiary, plans to reacquire title to these three (redacted) facilities by purchasing all the assets relating thereto held by the owner trustee. In connection with this purchase, the above-described lease financing would be terminated and replaced by senior and subordinate credit facilities to finance the purchase price.
Based on our telephone conversation, I understand that the Premerger Notification Office of the Â鶹´«Ã½ Trade Commission (the Office) has taken the position that transactions such as the purchase described in the immediately preceding paragraph are not subject to the requirements of the Act.** I also understand from our conversation that this position is based in part upon the Offices view that for purposes of the Act, such a transaction does not result in a change in the beneficial ownership of the related assets. Accordingly, our client does not plan to file a notification under the Act in connection with the above-described purchase, and neither the owner trustee referred to above nor the parent of the financial institution referred to above plans to file such a notification.
** staff comment: Wrong! The PMN Office has made one exception limited to that fact situation. It convinced us the the (sic) lessee retained beneficial ownership.
I would appreciate it very much if you would sign the enclosed copy of this letter acknowledging its receipt and return the acknowledged copy in the enclosed stamped self-addressed envelope.** Thank you again for your assistance.
** staff comment: I cannot sign the letter.
Very truly yours,
(redacted)
cc:(redacted)
Receipt of this letter is confirmed:
___________________________
Patrick Sharp