Three-Year Sunset Does Not Apply To Operating Partnership Unit And Debt Security Conversion Shelf Registration Statements

We recently approached the staff of the SEC's Division of Corporation Finance (the "Staff") on behalf of a number of our Real Estate Investment Trust ("REIT") clients seeking clarification as to the application of Rule 415(a)(1)(iv). We asked the Staff whether a shelf registration statement on Form S-3 for the exchange of units and/or debt securities of a partnership controlled by the REIT for shares of common stock of the REIT, where the REIT has a right either to issue its common stock or to redeem the outstanding units or debt securities for cash, would be subject to the three-year sunset under Rule 415(a)(5). The Staff concurred in our belief that Rule 415(a)(1)(iv) applies to the exchange in this situation and, accordingly, the three-year sunset would not apply.