Small Business Credit Availability Act

Summary: Small Business Credit Availability Act  (Sec. 2) This bill directs the Securities and Exchange Commission (SEC) to promulgate regulations that codify a specified order in Investment Company Act Release No. 30024, dated March 30, 2012.  Under Investment Company Act Release No. 30024 the SEC permitted the Ares Capital Corporation to:  continue to own (directly or indirectly) up to 100% of the outstanding equity interests of Ivy Hill ll Asset Management, L.P.; and make additional investments in Ivy Hill, in each case, following the time Ivy Hill shall be required to become a registered investment adviser under the Investment Advisers Act of 1940.  The bill entitles a business development company (BDC) to treat such regulations as having been completed if the SEC fails to complete the regulations required by this bill.  The bill further states, however, that nothing in it shall prevent the SEC from issuing rules that address potential conflicts of interest between BDCs and investment advisers. The Investment Company Act of 1940 is amended to deem certain securities to be permissible BDC assets to the extent necessary for the sum of permissible assets to equal 70% of the value of a BDC's total assets (excluding specified noninvestment assets) if the aggregate value of such securities does not exceed 20% of the value of the BDC's total assets.  (Sec. 3) The asset coverage requirements of registered closed-end companies also applicable to BDCs shall be reduced from 200% to 150% if the BDC makes certain disclosures on its website, and its directors or general partners approve of the modified requirements. (A registered closed-end investment company may not issue, or sell, any class of senior security unless it represents an indebtedness and, immediately after the issuance or sale, it will have an asset coverage of at least 300%. This asset coverage requirement currently is reduced to 200% for most BDCs.)  As an additional requirement, a BDC that issues equity securities that are not registered on a national securities exchange (non-traded BDC) must extend, to each shareholder as of the date of the approval, an offer to repurchase the shareholder's equity securities, with 25% of them to be repurchased in each of the four quarters following the approval date. In the alternative, the non-traded BDC shall obtain, at a special or annual meeting of shareholders or partners at which a quorum is present, the approval of the 150% reduction in requirements by more than 50% of the votes cast. A BDC may issue more than one class of senior security which is stock but only if it is issued to and held by a qualified institutional buyer.  (Sec. 4) The SEC must revise various rules under the Securities Act of 1933, and related forms, so as to allow a BDC to use security offering rules (such as those enabling a registrant to be a Well Known Seasoned Issuer, use shelf offerings, and communicate directly with shareholders) which are available to other issuers who are required to file security issuance reports under the Securities Exchange Act of 1934.  Should the SEC fail to complete such revisions in timely fashion, a BDC shall be entitled to treat those revisions as having been completed in accordance with the timetable set forth in this bill until the SEC does complete them.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Small Business Credit Availability 
Act''.

SEC. 2. BUSINESS DEVELOPMENT COMPANY OWNERSHIP OF SECURITIES OF 
              INVESTMENT ADVISERS AND CERTAIN FINANCIAL COMPANIES.

    (a) In General.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Securities and Exchange Commission 
        shall promulgate regulations to codify the order in Investment 
        Company Act Release No. 30024, dated March 30, 2012. If the 
        Commission fails to complete the regulations as required by 
        this subsection, a business development company shall be 
        entitled to treat such regulations as having been completed in 
        accordance with the actions required to be taken by the 
        Commission until such time as such regulations are completed by 
        the Commission.
            (2) Rule of construction.--Nothing in this subsection shall 
        prevent the Commission from issuing rules to address potential 
        conflicts of interest between business development companies 
        and investment advisers.
    (b) Permissible Assets of an Eligible Portfolio Company.--Section 
55 of the Investment Company Act of 1940 (15 U.S.C. 80a-54) is amended 
by adding at the end the following:
    ``(c) Securities Deemed To Be Permissible Assets.--Notwithstanding 
subsection (a), securities that would be described in paragraphs (1) 
through (6) of such subsection except that the issuer is a company 
described in paragraph (2), (3), (4), (5), (6), or (9) of section 3(c) 
may be deemed to be assets described in paragraphs (1) through (6) of 
subsection (a) to the extent necessary for the sum of the assets to 
equal 70 percent of the value of a business development company's total 
assets (other than assets described in paragraph (7) of subsection 
(a)), provided that the aggregate value of such securities counting 
toward such 70 percent shall not exceed 20 percent of the value of the 
business development company's total assets.''.

SEC. 3. EXPANDING ACCESS TO CAPITAL FOR BUSINESS DEVELOPMENT COMPANIES.

    (a) In General.--Section 61(a) of the Investment Company Act of 
1940 (15 U.S.C. 80a-60(a)) is amended--
            (1) by redesignating paragraphs (2) through (4) as 
        paragraphs (3) through (5), respectively;
            (2) by striking paragraph (1) and inserting the following:
            ``(1) Except as provided in paragraph (2), the asset 
        coverage requirements of subparagraphs (A) and (B) of section 
        18(a)(1) (and any related rule promulgated under this Act) 
        applicable to business development companies shall be 200 
        percent.
            ``(2) The asset coverage requirements of subparagraphs (A) 
        and (B) of section 18(a)(1) and of subparagraphs (A) and (B) of 
        section 18(a)(2) (and any related rule promulgated under this 
        Act) applicable to a business development company shall be 150 
        percent if--
                    ``(A) within five business days of the approval of 
                the adoption of the asset coverage requirements 
                described in clause (ii), the business development 
                company discloses such approval and the date of its 
                effectiveness in a Form 8-K filed with the Commission 
                and in a notice on its website and discloses in its 
                periodic filings made under section 13 of the 
                Securities Exchange Act of 1934 (15 U.S.C. 78m)--
                            ``(i) the aggregate value of the senior 
                        securities issued by such company and the asset 
                        coverage percentage as of the date of such 
                        company's most recent financial statements; and
                            ``(ii) that such company has adopted the 
                        asset coverage requirements of this 
                        subparagraph and the effective date of such 
                        requirements;
                    ``(B) with respect to a business development 
                company that issues equity securities that are 
                registered on a national securities exchange, the 
                periodic filings of the company under section 13(a) of 
                the Securities Exchange Act of 1934 (15 U.S.C. 78m) 
                include disclosures reasonably designed to ensure that 
                shareholders are informed of--
                            ``(i) the amount of indebtedness and asset 
                        coverage ratio of the company, determined as of 
                        the date of the financial statements of the 
                        company dated on or most recently before the 
                        date of such filing; and
                            ``(ii) the principal risk factors 
                        associated with such indebtedness, to the 
                        extent such risk is incurred by the company; 
                        and
                    ``(C)(i) the application of this paragraph to the 
                company is approved by the required majority (as 
                defined in section 57(o)) of the directors of or 
                general partners of such company who are not interested 
                persons of the business development company, which 
                application shall become effective on the date that is 
                1 year after the date of the approval, and, with 
                respect to a business development company that issues 
                equity securities that are not registered on a national 
                securities exchange, the company extends, to each 
                person who is a shareholder as of the date of the 
                approval, an offer to repurchase the equity securities 
                held by such person as of such approval date, with 25 
                percent of such securities to be repurchased in each of 
                the four quarters following such approval date; or
                    ``(ii) the company obtains, at a special or annual 
                meeting of shareholders or partners at which a quorum 
                is present, the approval of more than 50 percent of the 
                votes cast of the application of this paragraph to the 
                company, which application shall become effective on 
                the date immediately after the date of the approval.'';
            (3) in paragraph (3) (as redesignated), by inserting ``or 
        which is a stock, provided that all such stock is issued in 
        accordance with paragraph (6)'' after ``indebtedness'';
            (4) in subparagraph (A) of paragraph (4) (as 
        redesignated)--
                    (A) in the matter preceding clause (i), by striking 
                ``voting''; and
                    (B) by amending clause (iii) to read as follows:
                            ``(iii) the exercise or conversion price at 
                        the date of issuance of such warrants, options, 
                        or rights is not less than--
                                    ``(I) the market value of the 
                                securities issuable upon the exercise 
                                of such warrants, options, or rights at 
                                the date of issuance of such warrants, 
                                options, or rights; or
                                    ``(II) if no such market value 
                                exists, the net asset value of the 
                                securities issuable upon the exercise 
                                of such warrants, options, or rights at 
                                the date of issuance of such warrants, 
                                options, or rights; and''; and
            (5) by adding at the end the following:
            ``(6)(A) Qualified institutional buyer.--Except as provided 
        in subparagraph (B), the following shall not apply to a senior 
        security which is a stock and which is issued to and held by a 
        qualified institutional buyer (as defined in section 3(a)(64) 
        of the Securities Exchange Act of 1934):
                    ``(i) Subparagraphs (C) and (D) of section 
                18(a)(2).
                    ``(ii) Subparagraph (E) of section 18(a)(2), to the 
                extent such subparagraph requires any priority over any 
                other class of stock as to distribution of assets upon 
                liquidation.
                    ``(iii) With respect to a senior security which is 
                a stock, subsections (c) and (i) of section 18.
            ``(B) Individual investors who are not qualified 
        institutional buyers.--Subparagraph (A) shall not apply with 
        respect to a senior security which is a stock and which is 
        issued to a person who is not known by the business development 
        company to be a qualified institutional buyer (as defined in 
        section 3(a) of the Securities Exchange Act of 1934).
            ``(7) Rule of construction.--Notwithstanding any other 
        provision of law, any additional class of stock issued pursuant 
        to this section must be issued in accordance with all investor 
        protections contained in all applicable federal securities laws 
        administered by the Commission.''.
    (b) Conforming Amendments.--The Investment Company Act of 1940 (15 
U.S.C. 80a-1 et seq.) is amended--
            (1) in section 57--
                    (A) in subsection (j)(1), by striking ``section 
                61(a)(3)(B)'' and inserting ``section 61(a)(4)(B)''; 
                and
                    (B) in subsection (n)(2), by striking ``section 
                61(a)(3)(B)'' and inserting ``section 61(a)(4)(B)''; 
                and
            (2) in section 63(3), by striking ``section 61(a)(3)'' and 
        inserting ``section 61(a)(4)''.

SEC. 4. PARITY FOR BUSINESS DEVELOPMENT COMPANIES REGARDING OFFERING 
              AND PROXY RULES.

    (a) Revision to Rules.--Not later than 1 year after the date of 
enactment of this Act, the Securities and Exchange Commission shall 
revise any rules to the extent necessary to allow a business 
development company that has filed an election pursuant to section 54 
of the Investment Company Act of 1940 (15 U.S.C. 80a-53) to use the 
securities offering and proxy rules that are available to other issuers 
that are required to file reports under section 13 or section 15(d) of 
the Securities Exchange Act of 1934 (15 U.S.C. 78m; 78o(d)). Any action 
that the Commission takes pursuant to this subsection shall include the 
following:
            (1) The Commission shall revise rule 405 under the 
        Securities Act of 1933 (17 C.F.R. 230.405)--
                    (A) to remove the exclusion of a business 
                development company from the definition of a well-known 
                seasoned issuer provided by that rule; and
                    (B) to add registration statements filed on Form N-
                2 to the definition of automatic shelf registration 
                statement provided by that rule.
            (2) The Commission shall revise rules 168 and 169 under the 
        Securities Act of 1933 (17 C.F.R. 230.168 and 230.169) to 
        remove the exclusion of a business development company from an 
        issuer that can use the exemptions provided by those rules.
            (3) The Commission shall revise rules 163 and 163A under 
        the Securities Act of 1933 (17 C.F.R. 230.163 and 230.163A) to 
        remove a business development company from the list of issuers 
        that are ineligible to use the exemptions provided by those 
        rules.
            (4) The Commission shall revise rule 134 under the 
        Securities Act of 1933 (17 C.F.R. 230.134) to remove the 
        exclusion of a business development company from that rule.
            (5) The Commission shall revise rules 138 and 139 under the 
        Securities Act of 1933 (17 C.F.R. 230.138 and 230.139) to 
        specifically include a business development company as an 
        issuer to which those rules apply.
            (6) The Commission shall revise rule 164 under the 
        Securities Act of 1933 (17 C.F.R. 230.164) to remove a business 
        development company from the list of issuers that are excluded 
        from that rule.
            (7) The Commission shall revise rule 433 under the 
        Securities Act of 1933 (17 C.F.R. 230.433) to specifically 
        include a business development company that is a well-known 
        seasoned issuer as an issuer to which that rule applies.
            (8) The Commission shall revise rule 415 under the 
        Securities Act of 1933 (17 C.F.R. 230.415)--
                    (A) to state that the registration for securities 
                provided by that rule includes securities registered by 
                a business development company on Form N-2; and
                    (B) to provide an exception for a business 
                development company from the requirement that a Form N-
                2 registrant must furnish the undertakings required by 
                item 34.4 of Form N-2.
            (9) The Commission shall revise rule 497 under the 
        Securities Act of 1933 (17 C.F.R. 230.497) to include a process 
        for a business development company to file a form of prospectus 
        that is parallel to the process for filing a form of prospectus 
        under rule 424(b).
            (10) The Commission shall revise rules 172 and 173 under 
        the Securities Act of 1933 (17 C.F.R. 230.172 and 230.173) to 
        remove the exclusion of an offering of a business development 
        company from those rules.
            (11) The Commission shall revise rule 418 under the 
        Securities Act of 1933 (17 C.F.R. 230.418) to provide that a 
        business development company that would otherwise meet the 
        eligibility requirements of General Instruction I.A of Form S-3 
        shall be exempt from paragraph (a)(3) of that rule.
            (12) The Commission shall revise rule 14a-101 under the 
        Securities Exchange Act of 1934 (17 C.F.R. 240.14a-101) to 
        provide that a business development company that would 
        otherwise meet the requirements of General Instruction I.A of 
        Form S-3 shall be deemed to meet the requirements of Form S-3 
        for purposes of Schedule 14A.
            (13) The Commission shall revise rule 103 under Regulation 
        FD (17 C.F.R. 243.103) to provide that paragraph (a) of that 
        rule applies for purposes of Form N-2.
    (b) Revision to Form N-2.--Not later than 1 year after the date of 
enactment of this Act, the Commission shall revise Form N-2--
            (1) to include an item or instruction that is similar to 
        item 12 on Form S-3 to provide that a business development 
        company that would otherwise meet the requirements of Form S-3 
        shall incorporate by reference its reports and documents filed 
        under the Securities Exchange Act of 1934 into its registration 
        statement filed on Form N-2; and
            (2) to include an item or instruction that is similar to 
        the instruction regarding automatic shelf offerings by well-
        known seasoned issuers on Form S-3 to provide that a business 
        development company that is a well-known seasoned issuer may 
        file automatic shelf offerings on Form N-2.
    (c) Treatment if Revisions Not Completed in Timely Manner.--If the 
Commission fails to complete the revisions required by subsections (a) 
and (b) by the time required by such subsections, a business 
development company shall be entitled to treat such revisions as having 
been completed in accordance with the actions required to be taken by 
the Commission by such subsections until such time as such revisions 
are completed by the Commission.
    (d) Rule of Construction.--Any reference in this section to a rule 
or form means such rule or form or any successor rule or form.