Article by Daniel P. Adams , James P.C. Barri , Gilbert G. Menna and Ettore A. Santucci P.C.
In light of Section 939A of the Dodd-Frank Wall Street Reform
and Consumer Protection Act, on July 26, 2011, the Securities and
Exchange Commission ("SEC") voted unanimously to adopt
new rules ("New Rules") to remove credit ratings as
eligibility criteria for companies seeking to use "short
form" registration when registering securities. Instead of the
ratings criteria, the New Rules allow for, among other things, the
use of Form S-3 for the offering of non-convertible debt securities
under the Securities Act of 1933, if the issuer is a majority-owned
operating partnership of a real estate investment trust
("REIT") that qualifies as a "well-known seasoned
issuer."
This REIT-specific eligibility criteria represents a significant
broadening of the eligibility criteria contained in the SEC's
initial proposal, which threatened to create meaningful roadblocks
to widely followed REITs' continued access to the debt capital
markets. The New Rules also will permit an issuer to utilize Form
S-3 for non-convertible debt securities if, among other things, the
issuer (i) has issued at least $1 billion of non-convertible debt
securities over the prior three years in primary offerings for cash
that were registered under the Securities Act, (ii) has outstanding
at least $750 million of non-convertible debt securities issued in
primary offerings for cash that were registered under the
Securities Act or (iii) is a wholly owned subsidiary of a
"well-known seasoned issuer."
Representatives of Goodwin Procter style="FONT-SIZE: 8pt">LLP assisted The National Association of Real Estate Investment Trusts ("NAREIT") in connection with its comment letter related to the SEC's initial proposal and met the SEC to discuss, among other things, the REIT-specific eligibility criteria which ultimately was adopted in the New Rules.
The New Rules will take effect 30 days after they are published, but will include a temporary grandfather provision that allows an issuer to use Form S-3 for a period of three years from the effective date of the New Rules if the issuer would have been eligible to register the securities offerings under the old provision.
Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.
This article, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP or its attorneys. © 2011 Goodwin Procter LLP. All rights reserved.
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