Question
April 30, 2007
Mr. B. MichaelVerneVia E-mail & Regular Mail
Federal Trade Commission
Premerger Notification Office
Room 303
600 Pennsylvania Avenue, NW
Washington, DC 20580
Re: Availability of 802.2(b) Exemption for LeaseBuyout Dear Mike:
Thank you for speaking with metoday concerning the application of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSRAct") to my client's plan to buy out a lease from its current lessor.I am writing to summarize the facts I presented to you and to confirm yourconclusion that no Premerger Notification and Report Form is required under theHSR Act.
As I described this morning, ourclient, Company A, filed for approval under the HSR Act to purchase a number ofexisting power plants in 1999. The HSR waiting period expired without action.Immediately before closing, Company A transferred the right to obtain legaltitle to two of the plants to Company B, an entity engaged in the business ofentering into lease financing arrangements. Company A has therefore been thesole lessee of those plants since 1999. In addition,Company A has consistently and exclusively operated and possessed the twoplants and has made all necessary regulatory filings on behalf of thoseplants.
Company B isnow in bankruptcy. Accordingly, Company A, as the lessee, plans to buy out the lease from Company B. Prior to 1999, the facilitywas owned and operated by a party other than Company A or Company B.
This morning we discussed the applicability of 16 C.F.R. 802.2(b) (certain acquisitions of real property assets; used facilities) to the proposedtransaction. In particular, we discussed whether the exemption was available to the transaction I described even thoughCompany A, the current lessee, was not the operator of the facility whenit originally went into service but has been the operator of the facilitycontinuously since 1999.
Based on the facts describedabove, you agreed that the transaction would qualify as exempt from PremergerNotification and Report filing under the HSR Act because the proposedtransaction was in the spirit of the exemption provided under 802.2(b) of theHSR Regulations, 16 C.F.R. 802.2(b).
Thank you very much for your time,and please let me know at your earliest convenience if I have summarized ourconversation incorrectly or if you have any concerns regarding theapplicability of the HSR Act to this transaction. I can be reached at202-828-5847.