Small Business Credit Availability Act

To amend the Investment Company Act of 1940 to remove certain restrictions on the ability of business development companies to own securities of investment advisers and certain financial companies, to change certain requirements relating to the capital structure of business development companies, to direct the Securities and Exchange Commission to revise certain rules relating to business development companies, and for other purposes. 1. Short title This Act may be cited as the Small Business Credit Availability Act 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 (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. . 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) (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 (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) indebtedness (4) in subparagraph (A) of paragraph (4) (as redesignated)— (A) in the matter preceding clause (i), by striking voting (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. (1) in section 57— (A) in subsection (j)(1), by striking section 61(a)(3)(B) section 61(a)(4)(B) (B) in subsection (n)(2), by striking section 61(a)(3)(B) section 61(a)(4)(B) (2) in section 63(3), by striking section 61(a)(3) section 61(a)(4) 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 15 U.S.C. 78m (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. April 19, 2016 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

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.