Question
December 3, 1991
CERTIFIED MAIL RETURN RECEIPT REQUESTED
Mr. Patrick Sharp
Premerger Specialist
Premerger Notification Office
H-303
Federal 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 Federal 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