Question
November 2, 2005
HAND DELIVERY
Ms. Nancy Ovuka
SeniorCompliance Specialist
PremergerNotification Office
Bureau ofCompetition
Federal TradeCommission
6th and Pennsylvania Ave. NW
Washington, DC
Re: Assumption of lease for open and closed stores
Dear Ms. Ovuka:
Iam writing this letter to confirm oral advice provided to me on November 2, 2005 regarding the assumption of leases for stores that are bothopen and closed as part of a proposed acquisition of a retail business.
FACTS:
Ourclient proposes to acquire an on-going business that includes several retailstores. It is in fact stepping into the shoes of the current owner of thebusiness. As part of the proposed transaction, the purchaser agrees to assumethe leases and to make the lease payments as part of the ordinary course ofbusiness operations. There is no payment of a premium to the seller in order toassume the leases and the leases will not use up the economic life of therealty.
HSRINTERPRETATIONS:
Itis my understanding that the premerger notification office's position regardingthe assumption of a leasehold under the above noted conditions is notconsidered to be either an acquisition of the underlying realty or theassumption of a liability. Therefore, no amount is added to the purchase priceof the assets based on this assumption in order to determine the total pricepursuant to section 801.10(c)(2) of the HSR rules ofpractice.
Regardingthe proposed transaction, one or more of the retail stores are closed or willbe closed; however, the obligation to pay rental amounts continues and will bepaid when due in accordance with the terms of the lease. In our discussion, youagreed that the premerger office does not view open or closed storesdifferently and that the assumption of the leaseholds under the facts presentedare not considered to be a liability for HSR purposesand therefore, need not be considered in determining the total purchase priceof the business.
REQUEST:
I hereby requestthat you confirm this advice in writing by making a notation on this letter. Iintend to request a copy thereof in accordance with the Freedom Of InformationAct. If you have any questions or comments on the accuracy of this letter,please telephone me at (redacted).