$50,000,000
SENIOR SUBORDINATED, FIXED RATE TERM NOTES
(RANGING IN TERM FROM THREE (3) MONTHS TO TEN (10) YEARS)
($1,000 MINIMUM)
FIRST NATIONS FINANCIAL SERVICES COMPANY
First Nations Financial Services Company (the "Company"), a recently
formed corporation, is offering up to $50,000,000 in principal amount of
unsecured senior subordinated notes (the "Notes") pursuant to an Indenture
between the Company and Norwest Bank Minnesota, N.A., as Trustee (the
"Trustee"). The Notes are offered on a continuous "best-efforts" basis by the
Company and are subordinated to all Senior Debt of the Company (as hereinafter
defined), which includes the debt of the Company and its subsidiaries. See
"Summary of the Offering-Subordination of Notes." There is no limitation on
the amount of Senior Debt the Company may incur. Therefore, an unlimited
amount of the Company debt may rank senior to the Notes. See "Risk
Factors-Subordination of Notes to Other Debt," page 12. The Notes will be
issued in registered form in the minimum amount of $1,000 with the following
maturities: three (3) months, six (6) months, one (1) year, eighteen (18)
months, two (2) years, thirty (30) months, three (3) years, four (4) years,
five (5) years, seven (7) years or ten (10) years. Interest rates will vary
depending upon the maturity of the Note and will be specified in a supplement
to this Prospectus. THE NOTES MAY BE EXTENDED, AT THE OPTION OF THE COMPANY,
FOR A TERM EQUAL TO THE ORIGINAL TERM UNLESS THE HOLDER REQUESTS REPAYMENT
WITHIN SEVEN DAYS PRIOR TO THE ORIGINAL MATURITY DATE. SEE "DESCRIPTION OF
THE NOTES AND THE INDENTURE."
The Company has the right to reject any subscription for Notes, in whole
or in part, for any reason. Subscriptions are irrevocable upon receipt by the
Company. In the event a subscription is not accepted by the Company, the
payment accompanying such subscription will be refunded to the subscriber
forty-eight (48) hours after receipt by the Company without deduction of any
costs and without interest. No minimum amount of Notes must be sold. The
Company has the right to withdraw or cancel the Offering of the Notes at any
time. In the event of such withdrawal or cancellation, Notes previously sold
will remain outstanding until maturity and any pending subscriptions will be
irrevocable. See "Plan of Distribution."
It is presently anticipated that there will be no secondary market for
the Notes. If any such market were to develop, there can be no assurance that
it would provide the holders of the Notes with liquidity of investment. The
Notes will not be transferable without the prior written consent of the
Company. Such consent will be withheld in the event that the Company
determines that such transfer might result in a violation of any state or
Federal securities or other applicable law.
PAYMENT OF PRINCIPAL OR INTEREST ON THE NOTES IS NOT GUARANTEED BY ANY
GOVERNMENTAL OR PRIVATE INSURANCE FUND OR ANY OTHER ENTITY. THE COMPANY'S
REVENUES FROM OPERATIONS, INCLUDING THE SALE OF LOANS FROM ITS PORTFOLIO TO
THIRD PARTY INVESTORS, THE COMPANY'S WORKING CAPITAL, AND CASH GENERATED FROM
ADDITIONAL DEBT FINANCING REPRESENT THE COMPANY'S SOURCES OF FUNDS FOR THE
REPAYMENT OF PRINCIPAL AT MATURITY AND THE PAYMENT OF CURRENT INTEREST ON THE
NOTES.
THE NOTES INVOLVE A HIGH DEGREE OF RISK, INCLUDING RISK OF DEFAULT ON THE
LOANS AND LACK OF A PUBLIC MARKET. PROSPECTIVE INVESTORS SHOULD CONSIDER THE
FACTORS SET FORTH UNDER "RISK FACTORS" BEGINNING AT PAGE 8.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
______________________________
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF NOTES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT SETTING FORTH THE INTEREST RATES THEN
BEING OFFERED ON THE NOTES.
Price to Public(1) Underwriting Proceeds to the Company (2)(3)
Commissions and Discounts(2)
-----------------------------
Per Note 100% 0% 100%
Total $ 50,000,000 $ -0- $ 50,000,000
======== =================== ============================= ===============================
See footnotes on following page.
Prospectus Date April 22, 1997 2
(1) The Notes will be issued at their face principal value, without
discount.
(2) The Company has not entered into any agreement with a member firm of
the National Association of Securities Dealers, Inc. ("NASD") to assist in the
sales of the Notes and, therefore, is not presently obligated to pay any
commissions in connection with the sale of the Notes. In the event the
Company enters into an agreement with an NASD member firm, the Company may pay
the member firm, as agent, an estimated commission ranging from .5% to 6% of
the sale price of any Note sold by such broker-dealer. The Company may agree
to indemnify the broker-dealer against certain liabilities, including
liabilities under the Securities Act of 1933, as amended. It is also likely
that any such agreement by the Company with a broker-dealer will include
reimbursement to the broker-dealer for any out-of-pocket expenses incurred in
connection with the offer and sale of the Notes, based upon a percentage of
the amount of Notes sold. See "Plan of Distribution."
(3) Before deducting other expenses incurred in connection with the
Offering payable by the Company estimated at approximately $138,000.
AVAILABLE INFORMATION"AVAILABLEINFORMATION"
The Company has filed with the Securities and Exchange Commission,
Washington, D.C., a Registration Statement on Form SB-2, relating to the Notes
offered hereby. This Prospectus does not contain all of the information set
forth in the Registration Statement including the exhibits and schedules
thereto. Statements contained in this Prospectus as to the contents of any
contract or other document referred to are not necessarily complete and in
each instance reference is made to the copy of such contract or other document
filed as an exhibit to the Registration Statement. For further information
with respect to the Company and the Notes, reference is made to such
Registration Statement, including the exhibits and schedules thereto. The
Registration statement, including the exhibits and schedules thereto, may be
inspected without charge at the Commission's office, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. Copies of all or any part of such
material may be obtained from the Commission upon payment of fees prescribed
by the Commission.
The Company intends to furnish its Noteholders with annual reports
containing audited annual financial statements and quarterly reports for the
first three fiscal quarters of each fiscal year containing unaudited interim
financial information.
NOTICE TO RESIDENTS OF NORTH CAROLINA
This offering is open to residents of the State of North Carolina only
after a minimum of $900,000 of Notes have been sold.
NOTICE TO RESIDENTS OF OREGON
This offering is open only to residents of the State of Oregon who are
accredited investors within the meaning of OAR 441-35-010 and Section 2(15) of
the Securities Act of 19933 (including SEC Rule 215 adopted thereunder).
32
SUMMARY OF THE OFFERING"SUMMARYOFTHEOFFERING"
This summary is qualified in its entirety by reference to the detailed
information, financial statements and notes thereto appearing elsewhere in
this Prospectus, and the exhibits and documents referred to herein. Except as
the context otherwise requires in this Prospectus, the term Company refers to
First Nations Financial Services Company. Each prospective investor should
carefully review the entire Prospectus and all exhibits and documents referred
to herein and therein and carefully consider the information set out under the
heading "Risk Factors."
THE COMPANY
First Nations Financial Services Company was organized as a Delaware
corporation November 16, 1995 and the address of its principal executive
offices and telephone number at such address is included in the Supplement to
this Prospectus.
The Company has identified three interrelated segments of the financial
services industry to which it is committed to become a significant
participant. The first segment of the industry upon which the Company will
focus and concentrate its resources is commercial and business lending, which
includes real estate and equipment financing. The second segment of the
Company's business development is loans to individuals secured by automobiles
and light trucks. The third component of the Company's overall strategy is
the sale and securitization of loans originated in its other two lines of
business.
Because the Company cannot accurately predict when proceeds will be
received from the sale of Notes, if at all, the commercial lending segment
will be the only line of business in which the Company will direct its
resources until a minimum of $5,000,000 of the net proceeds from the sale of
Notes has been invested.
During the start-up phase the Company's initial focus will be limited to
commercial lending structured in such a manner and in a location that does not
require any kind of licensing. This phase will expand to commercial and
business lending that does require licenses when, and only when, the necessary
licenses are acquired. Management does not believe the present lack of
licenses will materially adversely affect the Company's ability to do business
and does not know of any impediment or disqualification for the issuance of
any required licenses. See "Business of the Company-Government Regulation and
Licensing."
The Company is recently organized and has no prior operating history or
significant operating assets. The contemplated operations will be limited in
both timing and scope by the results of the offering of Notes.
SECURITIES OFFERED
$50,000,000 in principal amount of unsecured, subordinated, term notes
(the "Notes") issued by the Company pursuant to an Indenture between the
Company and the Trustee (the "Indenture"). The Notes are unsecured,
subordinated debt obligations of the Company. The Notes are subordinated to
the Senior Debt of the Company and are not insured, guaranteed or secured by
any lien on any assets of the Company. There are no sinking fund provisions
applicable to the Notes. The Company is not a commercial bank, savings or
thrift institution and is not subject to state or federal statues or
regulations applicable to such institutions with regard to insurance, the
maintenance of reserves, the quality or condition of its assets or other
matters. The Notes offered hereunder are not CDs. Payment of principal and
interest on the Notes is not guaranteed by any governmental or private
insurance fund or any other entity. The Notes are to be issued in registered
form and are non-negotiable. No rights of ownership in a Note may be
transferred without the prior written consent of the Company (which consent
shall not be unreasonably withheld.) See "Description of the Notes and the
Indenture."
The Notes are offered with fixed maturities ranging from three (3) months
to ten (10) years. Individual Notes will be issued as subscriptions are
accepted. The Notes are offered in minimum denominations of $1,000.
Purchasers will be able to choose any of the following terms: three (3)
months, six (6) months, one (1) year, eighteen (18) months, two (2) years,
thirty (30) months, three (3) years, four (4) years, five (5) years, seven (7)
years or ten (10) years.
The interest rate payable on the Notes offered hereby will be fixed by
the Company from time to time based on market conditions and the Company's
financial requirements. Once determined, the rate of interest payable on a
Note will remain fixed for the original term of the Note. The actual rate
payable on a Note will be determined based upon the length of the term.
Interest on Notes with terms twelve (12) months or less will be paid at
maturity. Persons investing in Notes of longer duration will have the option
of having interest paid monthly, quarterly, semi-annually, annually or upon
maturity. All interest on the Notes will be compounded daily. Payment of
interest will be by check mailed to the holder of the Note. Holders of Notes
with terms of 12 months or greater will have the ability to change their
interest payment election once during the term of the Note.
Notes with terms of six (6) months or less will not be subject to
redemption or prepayment prior to maturity, all other Notes will be subject to
early repayment, at the election of the original holder only, upon the
occurrence of a Total Permanent Disability of such holder (as hereinafter
defined) or by his or her estate after such holder's death. In the case of a
Note jointly held, only where the joint holders are spouses will the election
apply if one or the other holder dies or becomes disabled. Otherwise, holders
will have no right to demand early repayment. See "Description of the Notes
and the Indenture - Redemption by the Holder upon Death or Total Permanent
Disability."
The Notes are non-negotiable instruments. The Notes will be issued in
fully registered form. Transfers of record ownership of Notes may be made
only with the prior written consent of the Company, which consent will not be
unreasonably withheld. Such consent will be withheld in the event that the
Company determines that such transfer might result in a violation of any state
or federal securities or other applicable law.
Seven (7) days prior to the expiration of the applicable term of a Note,
if the Company does not notify the holder of its intention to repay the Note
it will be extended for an identical term, unless, within seven (7) days after
the relevant maturity date, the holder requests repayment. Notices will be
delivered to the holder regarding upcoming maturity dates. As a courtesy, the
Company provides a request for repayment form with such notice. Use of such
form by a holder is not a condition of repayment. Requests for repayment may
also be made to the Company by letter or telephone. Any such Notes which are
so extended will be extended at the interest rate then being offered by the
Company, for newly issued Notes of like term and denomination.
SUBORDINATION OF NOTES
The notes are subordinated to all Senior Debt of the Company. As of the
date of this Prospectus, there was no Senior Debt outstanding. There is no
limitation on the amount of Senior Debt the Company may incur. Senior Debt is
defined for this purpose to include any indebtedness (whether outstanding on
the date hereof or hereafter created) incurred in connection with borrowings
by the Company (including its subsidiaries) from a bank, trust company,
insurance company, or from any other institutional lender, whether such
indebtedness is or is not specifically designated by the Company as being
"Senior Debt" in its defining instruments. See "Description of Notes and
Indenture."
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be utilized by the
Company for its general corporate purposes. See "Use of Proceeds."
RISK FACTORS
THE COMPANY IS NOT SUBJECT TO STATE OR FEDERAL STATUTES OR REGULATIONS
APPLICABLE TO COMMERCIAL BANKS AND SAVINGS AND LOAN ASSOCIATIONS WITH REGARD
TO INSURANCE, THE MAINTENANCE OF RESERVES, THE QUALITY OR CONDITION OF ITS
ASSETS OR OTHER MATTERS. THE NOTES OFFERED HEREUNDER ARE NOT CDS. PAYMENT OF
PRINCIPAL AND INTEREST ON THE NOTES IS NOT GUARANTEED BY ANY GOVERNMENTAL OR
PRIVATE INSURANCE FUND OR OTHER ENTITY. THE COMPANY'S REVENUES FROM
OPERATIONS, INCLUDING THE SALE OF LOANS FROM ITS PORTFOLIO TO THIRD PARTY
INVESTORS, THE COMPANY'S WORKING CAPITAL AND CASH GENERATED
FROM ADDITIONAL DEBT FINANCING REPRESENT THE COMPANY'S SOURCES OF FUNDS FOR
THE REPAYMENT OF PRINCIPAL, AT MATURITY, AND THE PAYMENT OF INTEREST ON THE
NOTES.
An investment in the Notes involves a high degree of risk, including the
risk of default because of default in payment of the loans, lack of a public
market and lack of experience by management. See "Risk Factors."
TAX STATUS
In the opinion of special tax counsel for the Company, the Notes will be
characterized as debt for federal income tax purposes. See "Material Income
Tax Consequences" for additional information concerning the application of
federal tax laws.
ERISA CONSIDERATIONS
If the Notes are considered to be indebtedness without substantial equity
features under a regulation issued by the United States Department of Labor,
the acquisition or holding of Notes by or on behalf of a Benefit Plan will not
cause the assets of the Company to become plan assets, thereby preventing the
application of certain prohibited transaction rules of the Employee
Retirement Income Security Act of 1974 and the Internal Revenue Code of 1986
that otherwise could possibly be applicable. The Company believes that the
Notes should be treated as indebtedness without substantial equity features
for purposes of such regulation.
NO RATING OF THE NOTES
It is not a condition to the issuance of the Notes that they be rated in
any rating category by any nationally recognized statistical rating agency.
The Company has not and does not intend to apply for a rating because of the
Company's lack of operating history.
HIGHLIGHTS OF TERMS OF NOTES"HIGHLIGHTSOFTERMSOFNOTES"
EIGHTEEN, THIRTY MONTHS & ONE, TWO,
THREE AND SIX MONTHS THREE, FOUR, FIVE SEVEN & TEN YEARS
----------------------------------------- ----------------------------------------------
Notes Unsecured, Subordinated Fixed Same as three and six month notes.
Term Notes
Denomination of Minimum purchase: $1,000 per Note Same as three and six month notes.
Initial Purchase any amount in excess thereof.
and Additional
Purchases
Annual Interest Rate Fixed upon issuance. Purchasers will Fixed upon issuance. Purchasers will elect
elect a term length and the interest rate a term length and the interest rate
applicable to such Note will be based applicable to such Note will be based upon
upon the term length chosen. the term length chosen.
Payment of Interest Interest will be compounded daily and Interest will be compounded daily and, at
paid at maturity. the election of the holder, paid at maturity,
monthly, quarterly, semi-annually or
annually.
Redemption by May be redeemed by the holder only at May be redeemed by the original holder
the Holder maturity. upon the occurrence of a Total Permanent
Disability, or by the holder's estate after
death, at the principal amount plus accrued
interest. Otherwise, the holder will have no
right to cause redemption prior to maturity.
(For joint holders, see "Description of the
Notes and the Indenture.")
Redemption by Not redeemable until maturity. Five, Seven & Ten Year Notes redeemable
the Company with 10% premium, others not redeemable
until maturity.
Form In fully registered form and non- Same as three and six month notes.
negotiable. Not transferable without the
Company's prior written consent.
Automatic Extension If the Company does not notify the Same as three and six month notes.
holder of its intention to repay the Note
at least seven (7) days prior to maturity
or it is not redeemed by holder within
seven (7) days after its maturity date,
Note will be extended automatically
for a period equal to the original term.
Notes to be extended will be extended at
a fixed rate equal to the rate then being
offered on a newly-issued Notes of like
tenor, term and denomination at their
respective maturity dates.
RISK FACTORS"RISKFACTORS"
Investors should consider, among other things, the following factors in
connection with the purchase of the Notes.
RECENTLY ORGANIZED BUSINESS WITH NO OPERATING HISTORY AND LIMITED CAPITAL
The Company is recently organized, has no operating history, limited
equity capital and management has no experience in raising or investing funds.
Therefore, purchasers of Notes are subject to all the risks of a start up
enterprise including lack of operating history to forecast future performance,
lack of management experience, total dependence upon the two organizers to
operate the business, limited capitalization, dependence upon the offering
proceeds to implement its business plan, uncertainties as to the amount and
timing of the offering proceeds, uncertainties about the ability to attract
customers, ability to comply with unfamiliar government regulations and
ability to compete with other businesses with substantially greater resources
and experience.
RISKS OF MAKING LOANS SECURED BY REAL PROPERTY
The Company intends to make most of its loans based on independent
appraiser estimates of the fair market value of the real estate offered to
collateralize its loans. Current internal credit guidelines of the Company
for business loans to be kept in its portfolio provide for a maximum overall
loan to value ratio of 90% of the appraised value of the real estate
collateral. It is possible that the actual resale value of property
collateralizing such loans may decrease below appraised estimates of value.
While the Company presently intends to maintain an overall loan to appraised
value ratio in its loan portfolio which the Company believes to be
conservative, there can be no assurance that the market value of the real
estate underlying such loans will at any time be equal to or in excess of the
outstanding principal amount of such loans. Such a decrease could result in
some or all of such loans being under collateralized, presenting a greater
risk of non-payment in the event of a default. See "Business of the Company."
RISKS OF LOANS SECURED BY MOTOR VEHICLES
Legal Aspects. In connection with the purchase of loans secured by motor
vehicles, security interests in vehicles securing the loans will be assigned
to the Company by dealers. Due to administrative burden and expense, the
certificates of title to the vehicles may not be amended to reflect the
assignment to the Company. In the absence of such an amendment, the Company
may not have a perfected security interest in the vehicles securing the loans
in some states. To the extent the security interest is perfected, the Company
will have a prior claim over subsequent purchasers of such vehicle and holders
of subsequently perfected security interests. However, as against liens for
repairs of a vehicle or for taxes unpaid by a borrower under a loan, or
through fraud, the Company could lose the priority of its security interest or
its security interest in a loan vehicle.
If the transfer of loans to the Company from a dealer is characterized as
a loan, the loan could constitute the property of the dealer's bankruptcy
estate (in the event of the dealer's bankruptcy). The Company would be
subject to the automatic stay provisions of the United States Bankruptcy Code
which operates to suspend any proceeding to collect against the bankruptcy
debtor, including enforcement of a security interest. A "true sale" of the
loans, on the other hand, isolates the loans from the Dealer's bankruptcy
estate.
The United States Court of Appeals for the 10th circuit in the case of
Octagon Gas Systems, Inc. vs. Roy T. Rimmer (May 27, 1993) held that the
assignment of a "overriding royalty interest" with respect to an interest in
proceeds payable from the sale of natural gas through a gas gathering system
was an "account" within the meaning of Article 9 of the UCC. The Court held
that applying Article 9's treatment of accounts sold as collateral placed the
account in the property of the bankruptcy estate of the seller. The Octagon
Gas case is generally considered to be wrongly decided. However, it is now
the law in the 10th Circuit. Neither the Company nor any dealers from whom
the Company intends to purchase auto loans have chief executive officers or
offices or other significant contacts in the 10th Circuit. Therefore, the
decision should not apply to the Company.
If the majority opinion in the Octagon Gas Systems case were applied to
the transfer of the loans to the Company by the dealers, the loans would be
included in the estate of the dealer in the event of the application of the
Federal Bankruptcy Laws to the dealer.
The Company believes the Octagon Gas Systems opinion is inapplicable to
the transfer of loans from the dealer to the Company because the transactions
of the Company and the Dealer have no significant contact in the 10th Circuit.
The Court's opinion has been criticized by the Permanent Editorial Board for
the UCC and at least two (2) Circuit Court opinions reach a different result.
Major's Furniture Mart v. Castle Credit Corp. 602 F.2nd 538 (3rd Cir. Rev.
1979) in re: Contractors Equipment Supply Co., 861 F.2nd 241 (9th Cir. 1988).
The opinion has also been criticized by the TriBar opinion committee
consisting of the special committee on legal opinions in commercial
transactions of the New York County Lawyers Association, the special committee
of the corporation law committee of the association of the Bar of the City of
New York and the special committee on legal opinions of the business law
section of the New York State Bar Association.
Lack of Damage Insurance. Although most state laws require owners to
maintain liability insurance for damages arising from their use of a motor
vehicle, the owners of the vehicles securing the loans may fail to maintain
physical damage insurance. As a consequence, in the event of any theft or
physical damage to a vehicle occurs and no such insurance exists, the Company
may suffer a loss unless the borrower is otherwise able to pay for repairs or
replacement or its obligations under the related loan. If the Company incurs
significant losses from uninsured vehicles, its ability to pay the Notes may
be adversely affected.
Lack of Dealer Agreements. The Company has no arrangements with dealers
or groups of dealers from whom loans secured by motor vehicles will be
purchased or who will originate loans for purchase by the Company. The
Company intends to develop arrangements with independent automobile dealers.
However, because no person associated with the offering of the Notes has any
prior experience with the origination or purchase of automobile loans, there
is no assurance that the Company will be able to acquire any specified amount
of loans.
GENERAL LENDING RISKS
The Company will market loans, in part, to borrowers who, for one reason
or another, are not able, or do not wish, to obtain financing from sources
such as commercial banks. To the extent that such loans may be considered to
be of a riskier nature than loans made by traditional sources of commercial
financing, holders of the Notes of the Company may be deemed to be at greater
risk than if the Company's business loans were made to other types of
borrowers. The Company is subject to the risk that a general downturn in the
economy will adversely affect the Company's lending business and its portfolio
to a greater extent than if its loans were made to more credit worthy
borrowers. While the Company expects to experience relatively little
prepayment activity on its portfolio, due principally to the associated
pre-payment fees, agreements in connection with home equity loans sold to
unaffiliated lenders may require that all or a portion of the fee be refunded
if the loan is paid off during the first six to twelve months after
origination. See "Business of the Company" and "Management's Plan of
Operation."
RELIANCE ON MANAGEMENT WITH NO PRIOR FINANCIAL SERVICES INDUSTRY EXPERIENCE.
The success of the Company's operations is totally dependent upon the
management, lending, credit analysis and business skills of the two person
senior level management of the Company. Neither Mr. William T. Juliano, the
Company's President or Thomas E. Juliano, the Company's Chief Operating
Officer have any prior experience in the financial services industry and if
either of them were for some reason unable to perform his or their duties or
were, for any reason, to leave the Company, there can be no assurance that the
Company would be able to find capable replacements. The Company has not
entered into an employment or noncompetition agreement with either of the
Julianos and does not presently have key man life insurance on either of them.
The Company anticipates adding additional senior level managers as the
business activity increases. Because the new executives are not likely to be
shareholders of the Company, as is the case of both Julianos, the Company
intends to execute an employment, confidentiality and noncompetition agreement
with each new executive.
MANAGEMENT DISCRETION OVER SUBSTANTIAL AMOUNTS OF THE PROCEEDS OF THE OFFERING
AND POSSIBLE USE OF FUTURE UNSPECIFIED ACQUISITIONS
The net proceeds from the sale of the Notes will be utilized for general
corporate purposes, including possible unspecified acquisitions of related
businesses or assets. No specific allocation of such proceeds has been made
as of the date of this Prospectus and management will have broad discretion in
allocating the proceeds of the Offering.
SIGNIFICANT COST ASSOCIATED WITH DEVELOPING THE COMPANY TO OPERATING LEVELS
Until the Company receives proceeds from the sale of Notes, invests the
proceeds and receives a return on the investment, the Company's only source of
funds for advertising, marketing and promotion will be the limited equity
capital and the income derived from its investment. Therefore, the Company
may expend significant cash in the early months of operation to cover its cost
of developing the business. See "Risk Factors - No Minimum Offering - Risk of
Sale of Small Amount of Notes" and "Management's Plan of Operation - Plan of
Operation of Next 12 Months."
LACK OF EXISTING CUSTOMER BASE
As of the date of this Prospectus, the Company has no established
customers to provide potentially profitable transactions which fit the
Company's proposed business. Therefore, until the Company is successful in
developing a pool of customers and sources of potential transactions, the
opportunities for investing the proceeds from the sale of Notes will be
limited. See "Description of the Notes and the Indenture - No Personal
Liability of Directors, Officers, Employees and Shareholders" and
"Management's Plan of Operation - Plan of Operation for Next 12 Months."
COMPETITION FOR EXPERIENCED MANAGEMENT
As of the date of this Prospectus, William and Thomas Juliano are the
only directors, executive officers or employees. If the Company sells a
significant amount of Notes to support the growth of the Company, its level of
activity will increase and additional executive management with experience in
operational and lending activities will be required. Because of the intense
competition for experienced management in the financial services industry,
there is no assurance that qualified managers can be identified and, if
identified, hired upon terms which are satisfactory to the Company. See
"Business of the Company - Employees" and "Management - Executive Officers and
Directors."
INSIGNIFICANT EQUITY CAPITAL AT RISK
If all of the Notes are sold, the Company will have debt in the amount of
Fifty Million Dollars ($50,000,000) and only approximately One Million Dollars
($1,000,000) in equity which has been provided by the shareholders of the
Company. Therefore, substantially all the risk of loss will be borne by the
Noteholders because for every One Dollar ($1.00) at risk by the shareholders
of the Company Fifty Dollars ($50.00) is at risk by the Noteholders. See
"Management's Plan of Operation - Sources of Capital and Liquidity."
CONFLICTS OF INTEREST
The Company has the right to enter into direct transactions with its
officers, directors, securityholders or affiliates as well as investments in
which officers, directors, securityholders or affiliates have a direct or
indirect pecuniary interest. The Company has adopted a policy not to enter
into any such transactions unless approved by a majority of the entire Board
of Directors, not including any interested director or supported by an
independent appraisal. As of the date of this Prospectus, there are no
independent directors. Therefore, any transaction entered into by the Company
in which any of its officers, directors, securityholders or affiliates have a
direct or indirect pecuniary interest will require an independent appraisal to
establish the value of the transaction. See "Certain Relationships and
Related Transactions."
ABSENCE OF INSURANCE AND REGULATION
The Notes are not insured by any governmental or private agency and they
are not guaranteed by any public or private entity. Likewise, the Company is
not regulated or subject to examination as commercial banks and thrift
institutions are. The Company is not a commercial bank, savings or thrift
institution. The Company is dependent upon proceeds from the continuing sale
of Notes to conduct its ongoing operations. The Company's revenues from
operations, including the sale of loans from its portfolio to third party
investors, the Company's working capital and cash generated from additional
debt financing represent the source of funds for repayment of principal at
maturity and the ongoing payment of interest on the Notes.
LACK OF GUARANTEES
THE COMPANY IS NOT SUBJECT TO STATE OR FEDERAL STATUTES OR REGULATIONS
APPLICABLE TO COMMERCIAL BANKS AND SAVINGS AND LOAN ASSOCIATIONS WITH REGARD
TO INSURANCE, THE MAINTENANCE OF RESERVES, THE QUALITY OR CONDITION OF ITS
ASSETS OR OTHER MATTERS. THE NOTES OFFERED HEREUNDER ARE NOT CDS. PAYMENT OF
PRINCIPAL AND INTEREST ON THE NOTES IS NOT GUARANTEED BY ANY GOVERNMENTAL OR
PRIVATE INSURANCE FUND OR OTHER ENTITY. THE COMPANY'S REVENUES FROM
OPERATIONS, INCLUDING THE SALE OF LOANS FROM ITS PORTFOLIO TO THIRD PARTY
INVESTORS, THE COMPANY'S WORKING CAPITAL AND CASH GENERATED FROM ADDITIONAL
DEBT FINANCING REPRESENT THE COMPANY'S SOURCES OF FUNDS FOR THE REPAYMENT OF
PRINCIPAL, AT MATURITY, AND THE PAYMENT OF INTEREST ON THE NOTES.
POSSIBLE CHARACTERIZATION OF THE COMPANY AS HOLDING COMPANY
The Investment Company Act of 1940 (the "1940 Act") defines an
"investment company", in effect, as a Company which is or holds itself out as
being engaged primarily in the business of investing, reinvesting or trading
of securities.
While the Company presently intends to engage in the business of
originating or acquiring multiple lines of loans, it is the stated intention
of Management not to make investments in securities of another company except
in those circumstances in which such company will eventually become a
wholly-owned or majority-owned subsidiary of the Company, or a subsidiary
controlled primarily by the Company, or the Company will be the surviving
entity in a merger.
Since the Company could become subject to regulation and registration
under the 1940 Act in the event it obtains or continues to hold a minority
interest in a number of enterprises, Management will continue to review the
Company's activities from time to time with a view toward reducing the
likelihood of, and will make every effort to prevent, the Company from being
classified as an "investment company."
Although the Company could be expected to incur significant registration
and compliance costs if required to register under the 1940 Act, being an
unregistered "investment company" thereunder is a more serious matter and can
result in civil liability and criminal penalties to the Company (and its
controlling persons in certain instances), as well as civil liabilities and
unenforceability of certain types of contracts to which the Company may be a
party. Accordingly, the Company does not intend to engage in the business of
(i) investing, reinvesting, or trading in securities as its primary business
(ii) issuing face-amount certificates of the installment type or (iii)
investing, reinvesting, owning, holding, or trading in securities, if it shall
own or propose to acquire investment securities having a value exceeding forty
percent of the value of its total assets (exclusive of government securities
and cash items) on a consolidated basis. See "Business of the Company."
COMPETITION
Other lenders against which the Company competes have substantially
greater resources, higher lending limits, name recognition and greater
experience, as well as more established customer bases and established market
presence than the Company. The Company presently has no customers and
anticipates approximate $250,000 to cover marketing expenses to develop
customers and industry correspondents during the first year of operations.
The future profitability of the Company will depend upon its ability to
compete in the marketplace of which there can be no assurance. See "Business
of the Company."
SUBORDINATION OF NOTES TO ALL OTHER DEBT
The Notes will be subordinated in claim and right to all "Senior Debt" of
the Company. Senior Debt is defined for this purpose to include any
indebtedness (whether outstanding on the date hereof or thereafter created)
incurred in connection with borrowings by the Company (including its
subsidiaries) from a bank, trust company, insurance company, or from any other
lender, whether such indebtedness is or is not specifically designated by the
Company as being "Senior Debt" in its defining instruments. If the Company
were to become insolvent, such Senior Debt of the Company would have a
priority of right to payment in connection with the liquidation of the Company
and its assets. The Indenture does not provide any protection to the
Noteholders in the event of a highly leverage transaction, reorganization,
restructuring, merger or similar transaction that creates Senior Debt which
has a priority of right to payment over payments to Noteholders. There can be
no assurance that any holder of the Company's indebtedness would be repaid
upon a liquidation of the Company. The instruments creating any Senior Debt
may contain provisions for acceleration in the event of a change of control of
the Company.
LACK OF EMPLOYEES AND INDEPENDENT DIRECTORS
As of the date of this Prospectus, William and Thomas Juliano are the
only directors, executive officers or employees. William T. Juliano is the
father of Thomas E. Juliano. Until the Company reaches a size level
sufficient to attract qualified independent directors and provide director
liability insurance coverage, management of the Company will operate without
outside oversight. The lack of independent directors increases the risk to
purchasers of Notes that the investment decisions of management will not be
reviewed by disinterested third parties. There is no assurance that the
Company will be able to identify and attract an adequately qualified staff of
senior executives, operational and support personnel within the time and
limited financial resources available.
ABSENCE OF SINKING FUND
The Notes are unsecured obligations of the Company and no sinking fund
(i.e. funds contributed on a regular basis to a separate account to repay the
Notes) exists for the benefit of Noteholders.
LACK OF RATINGS OF THE NOTES
It is not a condition to the issuance of the Notes that they be rated by
any Rating Agency. Therefore, purchasers of Notes will not have access to an
assessment of the credit quality of the Notes from an independent third party.
RESIDENTIAL MORTGAGE FORECLOSURE
The ability of a lender to avoid losses in its loan portfolio when a
particular loan becomes delinquent or in default depends upon its ability to
foreclose on the collateral it has accepted to collateralize such loan. In
the case of the Company, the majority of that collateral is intended to be
real estate. The Company's ability to foreclose on such real estate mortgages
securing its loans is regulated by state law. While the precedents for such
an action are extremely rare, in the past, certain jurisdictions have, during
difficult economic times, declared a moratorium on principal residence
mortgage foreclosures. To the Company's knowledge, no such moratoriums are in
effect at this time anywhere in the United States but there can be no
assurance that such moratorium(s) will not be enacted in the future. Certain
states may grant to mortgagors of foreclosed property a statutory right of
redemption. The Company does not view any such statutory right of redemption
as a material risk in foreclosing mortgaged property in the states in which it
intends to conduct its business but there can be no assurances that such
statutory right of redemption will not be a material risk.
ENVIRONMENTAL CONCERNS
In the course of its business, the Company may acquire in the future,
properties securing loans which are in default. Under various federal, state
and local environmental laws, ordinances and regulations, a current or
previous owner or operator of real estate may be required to investigate and
clean up hazardous or toxic substances or chemical releases at such property,
and may be held liable to a governmental entity or to third parties for
property damage, personal injury and investigation and cleanup costs incurred
by such parties in connection with the contamination. Such laws typically
impose cleanup responsibility and liability under such laws has been
interpreted to be joint and several unless the harm is divisible and there is
a reasonable basis for allocation of responsibility. The costs of
investigation, remediation or removal of such substances may be substantial,
and the presence of such substances, or the failure to properly remediate such
property, may adversely affect the owner's ability to sell or rent such
property or to borrow using such property as collateral. Persons who arrange
for the disposal or treatment of hazardous or toxic substances also may be
liable for the costs of removal or remediation of such substances at the
disposal or treatment facility, whether or not the facility is owned or
operated by such person. In addition, the owner or former owners of a
contaminated site may be subject to common law claims by third parties based
on damages and costs resulting from environmental contamination emanating from
such property.
In appropriate cases, the Company intends to mitigate this risk by
requiring a Phase I Environmental Assessment Report covering any real estate
which is the subject of a proposed investment. The consultant performing the
assessment is expected to provide a report of his examination of relevant
public records, physical inspection of the site, interviews with the owner,
former owners and others with personal knowledge of prior use of the property
to determine it is present and former use.
DEPENDENCE ON DEBT FINANCING
For its continuing operations, the Company is dependent upon borrowings
such as that represented by the Notes. At the present time, the Company
intends to utilize the proceeds of the sale of the Notes offered hereunder to
finance its lending activities and as working capital and has no other
resources of borrowing or credit facilities. The Company's ability to
continue to operate and to expand its operations in the future will at least,
in part, be dependent upon the Company's continued access to such sources of
debt financing.
NO MINIMUM OFFERING - RISK OF SALE OF SMALL AMOUNT OF NOTES
The offering is not conditioned upon the sale of a minimum principal
amount of the Notes. Therefore, purchases of Notes are irrevocable whether or
not the offering is successful. In the event only a small portion of the
maximum offering amount of $50 million of Notes is sold, the performance of
individual loans in the pool will have a greater effect on the ability of the
Company to pay the Notes than if a large portion of the offered Notes are sold
and the Company's investment performance were spread over a larger financial
base. It will also be more difficult for the Company to balance the
maturities between the Notes and its investments with a smaller base of
investments. In addition, although most of the expenses of the Company will
generally vary with the amount of loans or Notes, relatively small amounts of
fixed fees and expenses payable by the Company and for on-going banking,
accounting and legal services may not vary in proportion with the amount of
loans and may be relatively higher if only a small portion of the Notes are
sold than if a large portion of the Notes are sold. If the fixed expenses are
higher than expected, the Company's ability to repay may be adversely
affected.
Until the Company receives the proceeds from the sale of Notes its
lending and investment activities will be limited to its equity capital in the
approximate amount of $1,000,000. In the event, less than $5,000,000 of Notes
are sold prior to the expiration of the term of the offering, management is
likely to determine that an attempt to sale additional Notes are not cost
effective and therefore should be terminated. The offering will terminate one
year after the date of the this Prospectus or at the time management
determines that continuation of the offering is no longer feasible, whichever
occurs first. Such determination will be made based upon the relative amount
of proceeds received from the sale of Notes measured against the cost
associated with the offering of Notes. In such event, management will
structure its investments so as to pay off the outstanding Notes at maturity
and not attempt to renew their term or sell additional Notes. In such event,
the Noteholders would not have the opportunity to reinvest the principal
proceeds from maturity notes into newly issued Notes of the Company.
CONTINGENT RISKS
Although the Company will attempt to sell substantially all loans which
it originates on a nonrecourse basis, there is no assurance that such attempt
will be successful. It is likely that the Company will retain some degree of
risk on substantially all loans sold. During the period of time that loans
are held pending sale, the Company is subject to the various business risks
associated with the lending business including the risk of borrower default,
the risk of foreclosure and the risk that a rapid increase in interest rates
would result in a decline in the value of loans to potential purchasers. In
addition, the obligations in connection with the Company's securitizations or
sale require the Company to commit to repurchase or replace loans which do not
conform to the representations and warranties made by the Company at the time
of sale. When borrowers are delinquent in making monthly payments on loans
included in a sale or securitization trust, the Company will be required to
advance interest payments with respect to such delinquent loans to the extent
that the Company deems such advances ultimately recoverable. These advances
will require funding from the Company's capital resources but have priority of
repayment from the succeeding month's collections.
In the ordinary course of its business, the Company will be subject to
claims made against it by borrowers and private investors arising from, among
other things, losses that are claimed to have been incurred as a result of
alleged breaches of fiduciary obligations, misrepresentations, errors and
omissions of employees, officers and agents of the Company (including its
appraisers), incomplete documentation and failures by the Company to comply
with various laws and regulations applicable to its business. Any claims
asserted in the future may result in legal expenses or liabilities which could
have a material adverse effect on the Company's results of operations and
financial condition. See "Management's Plan of Operation."
LIMITED LIQUIDITY -- LACK OF TRADING MARKET
The Notes are non-negotiable and are therefore not transferable without
the prior written consent of the Company (which consent shall not be
unreasonably withheld). Due to the length of the term of certain Notes, the
non-negotiable nature of the Notes, and the lack of a market for the sale of
the Notes, even if the Company permitted a transfer, investors may be unable
to liquidate their investment even if circumstances would otherwise warrant
such a sale.
ECONOMIC CONDITIONS AND RELATED UNCERTAINTIES
Financial service companies are affected, directly and indirectly, by
economic conditions, and by governmental policies. Economic downturns could
result in decreased demand for credit, declining real estate values and the
delinquency of outstanding loans. Any material decline in real estate values
reduces the ability of borrowers to use real estate equity to support
borrowing. Because of the Company's focus on borrowers who are unable or
unwilling to obtain financing from sources such as commercial banks, the
actual rates of delinquencies, foreclosures and losses on such loans could be
higher under adverse economic conditions than those experienced in the
commercial lending business generally. The Company's operations are dependent
to a large degree on net interest income which is the difference between
interest and fee income from loans and interest expense on borrowings. The
Company's ability to generate net income is dependent upon its ability to make
loans at rates in excess of and for amounts at least equivalent to its
outstanding indebtedness including the indebtedness of the Notes. The
Company's profitability will be affected by fluctuations in interest rates.
For example, any future rise in interest rates, while increasing the income
yield on the Company's assets, may adversely affect loan demand and the cost
of funds. Conversely, any future decrease in interest rates may reduce the
amounts which the Company may earn on its assets, but increased loan demand
and reduce the cost of funds. Management does not expect any one particular
factor to affect the Company's results of operations. However, a downtrend in
several areas could have an adverse impact on the Company's profitability.
REGULATORY RISK
The Company's auto financing activity will be subject to extensive
regulation, supervision and licensing by federal, state and local governmental
authorities and is subject to various laws and judicial and administrative
decisions imposing requirements and restrictions on part or all of its
operations. The Company's consumer activities are subject to the Federal
Truth-in-Lending Act and Regulation Z (including the Home Ownership and Equity
Protection Act of 1994), the Federal Equal Credit Opportunity Act and
Regulation B, as amended ("ECOA"), the Federal Real Estate Settlement
Procedures Act ("RESPA") and Regulation X, the Home Mortgage Disclosure Act
and the Federal Debt Collection Practices Act, as well as other federal and
state statutes and regulations affecting the Company's activities. The
Company is also subject to examinations by state regulatory authorities with
respect to originating, processing, underwriting, selling, securitizing and
servicing loans. These rules and regulations, among other things, impose
licensing obligations on the Company, prohibit discrimination, regulate
assessment, collection, foreclosure and claims handling, payment features,
mandate certain disclosures and notices to borrowers and, in some cases, fix
maximum interest rates, and fees. Failure to comply with these requirements
can lead to, termination or suspension of licenses, certain rights of
rescission for mortgage loans, class action lawsuits and administrative
enforcement actions.
Although the Company intends to design systems and procedures to
facilitate compliance with these requirements and believes that it will be in
compliance in all material respects with applicable local, state and federal
laws, rules and regulations, there can be no assurance that more restrictive
laws, rules and regulations will not be adopted in the future that could make
compliance more difficult or expensive.
RISK OF NO UNDERWRITER
The interest rates of the Notes have been arbitrarily determined by the
Company without the concurrence of an underwriter, or other unrelated third
party, and bear no direct relationship to the Company's assets, book value,
net worth or any other established criteria of value. Among the factors
considered in such determination were the history of and prospects for the
industry in which the Company competes, estimates of the business potential of
the Company, the present state of its development, its financial conditions,
risks associated with the consumer financing industry in general, interest
rates in general during the time of the offering and demand for similar
securities of comparable companies.
LACK OF PARTICIPATING BROKER DEALERS
The Company has not identified any broker/dealers who have agreed to
participate in this offering of the Notes. The failure of the Company to
obtain the agreements of a significant number of broker/dealers to participate
in this offering will increase the likelihood that less than all of the Notes
will be sold. The sale of only a small amount of the Notes may adversely
affect Noteholders. See "Sale of Small Amount of Notes" above.
USE OF PROCEEDS"USEOFPROCEEDS"
The net proceeds from the sale of the Notes (estimated to be
approximately $44,872,000 net of estimated offering expenses if all of the
Notes offered hereby are sold) will be utilized by the Company for its general
corporate purposes. Corporate general purposes may include financing of
future growth, origination or acquisition of a commercial and business loan
portfolio and loans secured by equipment such as automobiles, trucks, golf
carts, advertising signs, boats and other vehicles, as well as other finance
related activities; and possible future acquisitions of related businesses or
assets. Because the Notes are offered on a continuous basis, corporate
general purposes may include replacement of some or all of the Company's
Senior Debt or repayment of maturing Notes.
The precise amounts and timing of the application of such proceeds will
depend upon many factors, including, but not limited to, the amount of any
such proceeds, actual funding requirements and the availability of other
sources of funding. Until such time as the proceeds are utilized, they may be
invested in short and long-term investments, including treasury bills,
commercial paper, certificates of deposit, securities issued by U.S.
government agencies, money market funds and repurchase agreements, depending
on the Company's cash flow requirements. The Company's investment policies
permit significant flexibility as to the types of such investments that may be
made by the Company. These investments will be accomplished through an
account with an unaffiliated broker-dealer. During the lapse of time between
when an order is executed by the broker-dealer and the trade is settled by the
Company an unsettled balance will exist with the broker-dealer. Therefore,
the Company may maintain daily unsettled balances with the broker-dealers.
While the Company may from time to time consider potential acquisitions, the
Company as of the date of this Prospectus had no commitments or agreements
with respect to any material acquisitions. See "Management's Plan of
Operation-Plan of Operation for next 12 Months."
DESCRIPTION OF THE NOTES AND THE
INDENTURE"DESCRIPTIONOFTHENOTESANDTHEINDENTURE"
The Notes will be issued pursuant to an Indenture (the "Indenture")
between the Company and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (the "Trust Indenture Act"), in effect on the
date the Indenture is qualified thereunder. The Notes are subject to all such
terms, and holders of Notes are referred to the Indenture and the Trust
Indenture Act for a statement thereof. The following includes a summary of
certain provisions of the Indenture, a copy of which is available from the
Company. The summary does not purport to be complete and is qualified in its
entirety by reference to the Indenture, including the definitions therein of
certain terms used below.
The Notes will be general unsecured, subordinated term notes,
subordinated in right of payment to the prior payment in full of all Senior
Debt (as defined) of the Company, whether outstanding on the date of the
Indenture or thereafter incurred, and are offered by the Company at maturities
ranging from three (3) months to ten (10) years. The term of each Note will
be chosen by the purchaser of such Note upon subscription.
The Notes are not secured by any collateral or lien. There are no
provisions for a sinking fund applicable to the Notes.
FORM AND DENOMINATIONS
The Notes will be issued in fully registered form. The Notes are not
negotiable instruments, and no rights of record ownership therein can be
transferred without the prior written consent of the Company. Ownership of a
Note may be transferred on the Company register only by written notice to the
Company signed by the owner(s) or such owner's duly authorized representative
on a form to be supplied by the Company and with the prior written consent by
the Company (which consent shall not be unreasonably withheld). The Company
may also, in its discretion, require an opinion from such Noteholder's counsel
that the proposed transfer will not violate any applicable laws. See "Summary
of the Offering." A Note may be purchased in the minimum amount of $1,000 or
any amount in excess thereof. Separate purchases may not be accumulated to
satisfy the minimum denomination requirement.
INTEREST
The Notes are offered with fixed maturities ranging from three (3) months
to ten (10) years. Individual Notes will be issued as subscriptions are
accepted. The Notes are offered in minimum denominations of $1,000.
Purchasers will be able to choose any of the following terms: three (3)
months, six (6) months, one (1) year, eighteen (18) months, two (2) years,
thirty (30) months, three (3) years, four (4) years, five (5) years, seven (7)
years or ten (10) years.
The interest rates payable on the Notes offered hereby will be
established by the Company from time to time based on market conditions and
the Company's financial requirements. The Company constantly reevaluates its
interest rates based on such analysis. Once determined, the rate of Interest
payable on a Note will remain fixed for the original term of the Note and will
not vary. The Interest rate payable on a Note will be determined based upon
the maturity date and term established for such Note upon subscription.
Interest on Notes will be computed on the basis of an actual calendar
year and will compound daily. Interest on Notes with terms of less than
twelve (12) months will be paid at maturity. Purchasers of Notes with terms
of one (1) year or greater may elect to have interest paid monthly, quarterly,
semi-annually, annually or at maturity. This election may be changed one time
by the holder during the term of these longer term Notes. Requests to change
such election are required to be made to the Company in writing. No specific
form of change of election is required to be submitted to the Company. Any
interest not otherwise paid on an interest payment date will be paid at
maturity.
The Company has the right to change from time to time, in its discretion,
the interest rates it offers on the Notes based on numerous factors other than
length of term to maturity. Once determined, the rate of Interest payable on
a Note will remain fixed for the original term of the Note and will not vary.
Such factors may include, but are not limited to, the desire to attract new
investors; Notes in excess of certain principal amounts; Notes purchased for
IRA and Keogh accounts; rollover investments; and Notes beneficially owned by
persons residing in particular geographic localities. The Company does not
intend to offer variable interest rate Notes to investors. However, the
Company may make a decision to change interest rates in the future based on
its fund raising objectives including, but not limited to, the attraction of
new investors and the encouragement of the rollover of Notes by current
holders, circumstances in the financial markets and the economy and other
factors, including, but not limited to, any additional costs incurred by the
Company in selling Notes in a particular jurisdiction which may at the time be
relevant to the Company's operations.
INTEREST ACCRUAL DATE
Interest on the Notes will accrue from the date of purchase, which is
deemed to be, for accepted subscriptions, the date funds are cleared and
available to the Company, if received prior to 2:00 p.m. on a business day or
the next business day if the Company receives such funds on a non-business day
or after 2:00 p.m. on a business day. For this purpose, the Company's
business days will be deemed to be Monday through Friday except for legal
holidays.
INTEREST WITHHOLDING
In the event an investor does not provide the Company with a fully
executed Form W-8 or Form W-9, the Company will withhold 31% of any interest
paid. Otherwise, no interest will be withheld, except on accounts held by
foreign business entities. It is the Company's policy that no sale will be
made to anyone refusing to provide a fully executed Form W-8 or Form W-9.
AUTOMATIC EXTENSION
At least seven (7) days prior to a Note's stated maturity date, the
Company will notify the registered holder of such maturity date and the
interest rate payable during any renewed term. If at such time, the Company
does not notify the holder of its intention to repay, subject to the holder's
demand for repayment, the term of such Note will be automatically extended.
If, within seven (7) days after a Note's maturity date, the holder thereof has
not demanded repayment of such Note, and the Company has notified the holder
of its intention to extend such Note, such Note shall be extended for the same
term identical to the term of the original Note. The Notes will continue to
renew as described herein absent some action permitted under the Indenture and
the Notes by either the holder or the Company. Interest shall continue to
accrue from the first day of such renewed term. Such Note, as renewed, will
continue in all its provisions, including provisions relating to payment,
except that the interest rate payable during any renewed term shall be the
interest rate which is then being offered by the Company on similar Notes
being offered as of the renewal date. The Company intends to continuously
offer similar Notes. Therefore, the interest rate upon renewal will be the
rate specified by the Company for similar Notes on or before the maturity
date, or the Note's current rate if no such rate is specified. If the Company
gives notice to a Noteholder of the Company's intention to repay a Note at
maturity no interest will accrue after the date of maturity. Otherwise, if a
Noteholder requests repayment within seven (7) days after its maturity date,
the Company will pay interest during the period after its maturity date and
prior to repayment at the lower of (i) the lowest interest rate then being
paid on debt securities being offered by the Company to the general public or
(ii) the rate being paid on such Note immediately prior to its maturity. As a
courtesy the Company provides a request for repayment form with such notice.
Use of such form by a holder is not a condition of repayment. However,
requests for repayment must be made to the Company in writing.
REDEMPTION BY THE COMPANY
The Company will have no right to prepay any Note except Notes with a
maturity of five years or more. The redemption price of Notes with a maturity
of five years or more is the unpaid principal balance plus interest accrued to
the date of redemption and a redemption premium in the amount of 10% of the
unpaid principal. The holder has no right to require the Company to prepay
any Note prior to its original or extended maturity date except as described
below. Any exercise of the Company's right of redemption will comply with all
applicable regulations under the federal securities laws including Exchange
Act Rule 14e-1.
REDEMPTION BY THE HOLDER UPON DEATH OR TOTAL PERMANENT DISABILITY
Except for Notes with maturities of less than twelve (12) months, a Note
may be redeemed at the election of the holder following his Total Permanent
Disability, as established to the satisfaction of the Company, or by his
estate following his death. The redemption price, in the event of such a
death or disability, will be the principal amount of the Note, plus interest
accrued and not previously paid, to the date of redemption. If a Note is held
by joint record owners, the election to redeem will apply when either record
owner dies or becomes subject to a Total Permanent Disability. The Company
may modify the foregoing policy on redemption after death or disability.
However, no such modification will affect the right of redemption applicable
to any then outstanding Note. Should the Company modify such policy at a
future date, written notice of such modification will be sent to all owners of
those outstanding Notes which were purchased while the policy was in effect
(but such notice will not affect the right to redeem such outstanding Notes
after the owner's death or disability).
For the purpose of determining the right of a holder to demand early
repayment of a Note, Total Permanent Disability shall mean a determination by
a physician chosen by the Company that the holder, who was gainfully employed
on a full time basis at the time of purchase, is unable to work on a full time
basis, defined as working at least forty hours per week, during the succeeding
twenty-four months.
LOANS TO NOTEHOLDERS
At the request of any Noteholder, the Company has the right, but not the
obligation, to make a loan secured by a pledge of the Noteholder's Note. The
amount of the loan may be as much as the principal balance of the Note for a
term and at an interest rate to be negotiated between the Company and the
Noteholder.
SUBORDINATION
The indebtedness evidenced by the Notes, and any interest thereon, are
subordinated to all "Senior Debt" of the Company. Senior Debt is defined for
this purpose to include any indebtedness (whether outstanding on the date
hereof or thereafter created) incurred in connection with borrowings by the
Company (including its subsidiaries) from a bank, trust company, insurance
company, or from any other lender, whether such indebtedness is or is not
specifically designated by the Company as being "Senior Debt" in its defining
instruments. Any indebtedness of the Company other than that described as
Senior Indebtedness, will have rights upon liquidation or dissolution
equivalent to that of the Noteholders. The instruments creating any Senior
Debt may contain provisions for acceleration in the event of a change of
control of the Company.
For a discussion of the Company's status as a holding company and the
lack of insurance or guarantees in support of the Notes see "Risk
Factors--Lack of Guarantees and--Possible Characterization of the Company as
Holding Company."
In the event of any liquidation, dissolution or any other winding up of
the Company, or any receivership, insolvency, bankruptcy, readjustment,
reorganization or similar proceeding under the Federal Bankruptcy Code or any
other applicable federal or state law relating to bankruptcy or insolvency, or
during the continuation of any Event of Default (as described below), no
payment may be made on the Notes until all Senior Debt has been paid. In any
such event, holders of Senior Debt may also submit claims on behalf of
Noteholders and retain the proceeds for their own benefit until they have been
fully paid, and any excess will be turned over to the Noteholders. If any
distribution is nonetheless made to Noteholders, the money or property
distributed to them must be paid over to the holders of the Senior Debt to the
extent necessary to pay Senior Debt in full.
EVENTS OF DEFAULT
The Indenture provides that each of the following constitutes an Event of
Default: (i) default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by the subordination provisions of the
Indenture); (ii) default in payment when due of principal on the Notes
(whether or not prohibited by the subordination provisions of the Indenture);
(iii) failure by the Company to observe or perform any covenant, condition or
agreement with respect to the liquidation, consolidation or merger or other
change in control of the Company; (iv) failure by the Company for 60 days
after notice to comply with certain other agreements in the Indenture or the
Notes; and (v) certain events of bankruptcy or insolvency with respect to the
Company.
If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Notes may
declare all of the Notes to be due and payable immediately; provided, however,
that so long as any Senior Debt is outstanding, such declaration shall not
become effective until the earlier of (i) the day which is five (5) Business
Days after the receipt by representatives of Senior Debt of such written
notice of acceleration or (ii) the date of acceleration of any Senior Debt.
In the case of an Event of Default arising from certain events of bankruptcy
or insolvency with respect to the Company all outstanding Notes will become
due and payable without further action or notice. Holders of the Notes may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, holders of a 25% in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from holders of Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
The holders of 25% in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
AMENDMENT, SUPPLEMENT AND WAIVEr
Except as provided herein, the Indenture or the Notes may be amended or
supplemented with the consent of the holders of at least a majority in
principal amount of the Notes then outstanding, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the holders of a 25% in principal amount of the then
outstanding Notes.
Without the consent of each holder affected, an amendment or waiver may
not (with respect to any Notes held by a non-consenting holder of Notes) (i)
reduce the principal amount of Notes whose holders must consent to an
amendment, supplement or waiver, (ii) reduce the principal of or change the
fixed maturity of any Note, (iii) reduce the rate of or change the time for
payment of interest on any Note, (iv) waive a Default or Event of Default in
the payment of principal or premium, if any or interest on the Notes (except a
rescission of acceleration of the Notes by the holders of at least 25% in
aggregate principal amount of the Notes and a waiver of the payment default
that resulted from such acceleration), (v) make any Note payable in money
other than that stated in the Notes, (vi) make any change in the provisions of
the Indenture relating to waivers of past Defaults or the rights of holders of
Notes to receive payments of principal of or interest on the Notes, (vii) make
any change to the subordination provisions of the Indenture that adversely
affects holders of Notes or (viii) make any change in the foregoing amendment
and waiver provisions.
Notwithstanding the foregoing, without the consent of any holder of
Notes, the Company and/or the Trustee may amend or supplement the Indenture or
the Notes to cure any ambiguity defect or inconsistency; to provide for
assumption of the Company's obligations to holders of the Notes in the case of
a merger or consolidation; to make any change that would provide any
additional rights or benefits to the holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such holder,
including an increase in the aggregate dollar amount of Notes which may be
outstanding under the Indenture; to modify the Company's policy to permit
redemptions of Notes upon the death or Total Permanent Disability of any
holder of Notes (but such modification shall not adversely affect any then
outstanding Notes); or to comply with requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage
in other transactions with the Company. However, if the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Securities and Exchange Commission for permission to continue as Trustee
or resign.
The holders of 25% in principal amount of the then outstanding Notes will
have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the
conduct of his own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the
Indenture at the request of any holder of Notes, unless such holder shall have
offered to the Trustee security and indemnify satisfactory to it against any
loss, liability or expense.
PLACE AND METHOD OF PAYMENT
Principal and interest on the Notes will be payable at the principal
executive office of the Company, as it may be established from time to time,
or at such other place as the Company may designate for that purpose. As of
the date of this Prospectus the Company has designated the Trustee as the
Paying Agent. Payments may be made at the option of the Company by check or
draft mailed to the person entitled thereto at his address appearing in the
register which the Company maintains for that purpose.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS
No director, officer, employee, incorporator or shareholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws
and it is the view of the Securities and Exchange Commission that such a
waiver is against public policy.
REPORTS
The Company will publish annual reports containing audited financial
statements and quarterly reports containing unaudited financial information
for the first three quarters of each fiscal year. Copies of such reports will
be sent to Noteholders upon written request to the Company.
SERVICE CHARGES
The Company has the right to assess service charges for replacing lost or
stolen Notes (for which an affidavit from the holder will be required),
changing the registration of any Note when such change is occasioned by a
change in name of the holder or a transfer (whether by operation of law or
otherwise) of the Note by the holder to another person.
VARIATIONS BY STATE
The Notes are offered with fixed maturities ranging from 3 months to 10
years. Interest rates will be fixed by the Company from time to time. All of
the maturities may not be offered in all states because of state securities
laws. Therefore, individual purchasers may not have a selection of all Notes.
BUSINESS OF THE COMPANY"BUSINESSOFTHECOMPANY"
First Nations Financial Services Company was organized as a Delaware
corporation on November 16, 1995.
OVERVIEW
The Company has identified three interrelated segments of the financial
services industry to which it is committed to become a significant
participant. The first segment of the industry upon which the Company will
focus and concentrate its resources is commercial and business lending, which
includes real estate and equipment financing. The second segment of the
Company's business development is loans to individuals secured by automobiles
and light trucks. The third component of the Company's overall strategy is
the sale and securitization of loans originated in its other two lines of
business.
Because the Company cannot accurately predict when proceeds will be
received from the sale of Notes, if at all, the commercial lending segment
will be the only line of business in which the Company will direct its
resources until a minimum of $5,000,000 of the net proceeds from the sale of
Notes has been invested.
INITIAL PRIMARY BUSINESS
During the start-up phase the Company's initial focus will be limited to
commercial and business loans. See "Business of the Company-Commercial and
Business Loans." The Company's lending activities during this phase will be
structured in such a manner and in a geographic location that does not require
any kind of licensing. This phase will expand to commercial and business
lending that does require licenses when, and only when, the necessary licenses
are acquired. Management does not believe the present lack of licenses will
materially adversely affect the Company's ability to do business and does not
know of any impediment or disqualification for the issuance of any licenses
which may be required in the future. See "Business of the Company-Government
Regulation and Licensing."
William T. Juliano, the Company's Chief Executive Officer, has been
active for many years in buying, selling, financing and developing many kinds
of real estate. Because of his background, the Company has received
preliminary expressions of interest to finance approximately $5 Million of
projects ranging from $500,000 to $3.5 Million each. If the Company
successfully closes one or more of the possible projects, the anticipated
interest rate payable by the borrower will be in the range of 10.5%-11% and
the borrower will pay to the Company a loan origination fee in the range of
1.5% of the original principal as well as the costs of document preparation,
appraisal cost, title insurance premiums, attorneys fees and other third party
expenses. See "Management's Plan of Operation-Plan of Operation for Next 12
Months."
During this start-up phase and until the Company's cash flow is adequate,
the executive officers of the Company will devote substantially all their time
to operations without any compensation. The monthly rental cost for the
office space, furniture and equipment is furnished by William T. Juliano to
the Company without cost for the 12 months ending February 12, 1998. See
"Business of the Company-Property." In addition, bookkeepers, secretaries,
administrative assistants and support staff are presently employed by William
T. Juliano, or one of his affiliates, and he will make their services
available without cost to the Company until cash flow from operations will
cover their costs. See "Business of the Company-Employees."
The Company does not intend to pursue its other intended lines of
business until the commercial lending activity has been established and
$5,000,000 of the net proceeds of the sale of Notes has been invested.
COMMERCIAL AND BUSINESS LOANS
The Company intends to make loans to owners of businesses who typically
do not meet all of the credit criteria of commercial banks, but who the
Company determines has the business purpose, motivation and collateral
required to repay the obligation.
Collateral. The Company intends to make commercial loans to
corporations, partnerships, sole proprietors and other entities. The Company
intends to primarily make loans to borrowers with non-perfect credit
histories. To make up for the less than perfect credit history, the Company
will require more security in the form of lower loan-to-value ratios (amount
of loan as compared to appraised value of collateral securing the loan) than
are typically required of borrowers with unblemished credit histories. All
loans will be collateralized by one or more of the following: (i) a first
mortgage lien on a principal residence or some other parcel of real property,
(ii) a junior mortgage lien on a principal residence or some other parcel of
real property, (iii) marketable securities, or (iv) other real or personal
property. Commercial lending may also take the form of the lease of equipment
or a loan secured by other personal property. Real Property eligible for
collateral, other than a principal residence includes office and apartment
buildings, mixed use buildings, unimproved land, motels, hotels and restaurant
buildings owned by the borrower, a principal of the borrower, or a guarantor
of the borrower. The Company intends to, generally, further collateralize its
loans by obtaining a lien on the borrower's other tangible and intangible
assets by filing appropriate Uniform Commercial Code financing statements.
The Company intends to make loans for various business purposes
including, but not limited to, working capital, business expansion, equipment
or real estate acquisition and debt-consolidation.
Strategy. The Company intends to initially market its business loans by
word of mouth through existing personal relationship with management.
Lending Policies and Practices. Summarized below are certain of the
lending policies and practices which the Company intends to follow. Such
policies and practices will be altered, amended and supplemented as conditions
warrant. The Company has the right to make changes in its day to day
practices and policies in its sole discretion.
The Company intends to keep its interest and other charges competitive
with the lending rates of other lenders. Generally, loans will be made at
fixed rates for fixed terms ranging from approximately one to fifteen years.
Generally, the Company intends to compute interest due on its outstanding
loans by the simple interest method. Generally, the Company intends to require
that title insurance be obtained in connection with its loans and to permit
borrowers to prepay such loans. Where permitted by applicable law, the
Company may impose a prepayment penalty. Whether a prepayment penalty is
imposed and the amount of such penalty, if any, is negotiated between the
Company and the individual borrower prior to consummation of the loan.
Generally, the Company intends to make a loan collateralized by
residential real estate only if the overall loan to value ratio (based on
independent appraised fair market value) on the properties collateralizing the
loans is equal to or less than ninety (90%) percent. Generally, the Company
intends to not make a loan collateralized by commercial real estate where the
overall loan to value ratio (based on independent appraised fair market value)
is equal to or less than ninety (90%) percent. Occasionally, exceptions to
these maximum levels may be made if other collateral is available or if there
are other compensating factors.
Servicing of Loans. Generally, the Company does not initially intend to
be responsible for servicing loans. The Company intends to subcontract
servicing of the loans in its portfolio or loans which have been securitized
in accordance with specific servicing procedures. In servicing its loans, the
Company, itself or through a subcontractor, intends to initiate the collection
process one day after a borrower misses a monthly due date. When a loan
becomes forty-five (45) to sixty (60) days delinquent, it will be transferred
to loan work-out personnel. The work-out personnel will attempt to reinstate
a delinquent loan, seek a payoff, or occasionally enter into a loan
modification agreement with the borrower to avoid foreclosure. If a borrower
declares bankruptcy, the matter is immediately referred to counsel. The
Company or its subcontractor, in its capacity as the servicer of securitized
loans may be obligated to advance funds (an "Advance") in respect of each
monthly loan interest payment that accrued during the. collection period for
the loans but was not received, unless the Company determines that such
advances will not be recoverable from subsequent collections in respect of the
related loan.
Purchase of Existing Loans. In the normal course of business, the
Company may in the future purchase business/commercial loan portfolios from
individuals, banks, other commercial lenders and other sources of commercial
loans. Any loans so purchased would be collateralized by real estate located
in the Company's market area. Each such individual loan would be reviewed by
an executive officer of the Company prior to acquisition to see if the loan
and all related matters conform to the Company lending procedures and
policies.
Competition. As a commercial lender, the Company will compete against
many other lenders, many of which have larger capitalization and better name
recognition. The Company will have significant competition in the equipment
leasing industry. The Company will be competing with banks, leasing and
financial companies with greater resources, capitalization and name
recognition throughout its market area. Other companies participating in the
equipment leasing industry will have the ability to enter into leases which
contemplate the payment of funds sufficient to recover the lessor's investment
in the equipment plus a profit over the term of the lease which does not give
the lessee any option to purchase the equipment. Competitors may also lease
equipment under renewable leases which do not contemplate full recovery of the
lessor's original costs during their initial term. Therefore, competitors
have many ways in which to compete which are not available to the Company.
See "Risk Factors-Competition."
Leasing. Generally, the Company's leases will be of two types: (i)
finance leases which have a term of twelve (12) months or more and provide a
purchase option exercisable by the lessee at $1.00 at the termination of the
lease and (ii) fair market value or true leases which have a similar term but
provide a purchase option exercisable by the lessee at the fair market value
of the equipment at, the termination of the lease.
Strategy. The Company intends to primarily obtain its business leasing
customers primarily through equipment manufacturers, brokers and vendors with
whom it intends to establish a relationship and through a direct sales force.
Leasing Policies and Practices. Generally, the Company's interest rate
and other terms and conditions of its leases will be competitive with the
leasing terms of other leasing companies in the area. The leases will be for
terms of twelve (12) to sixty (60) months and structured with purchase options
whose exercise prices range from $1.00 to the fair market value of the
equipment at the time of the lease termination.
All of the leases will be secured by the leased equipment or, in some
cases, other or additional collateral. However, creditworthiness and
financial strength of the lessee are an important criteria to be utilized by
the Company in determining to enter into a lease arrangement with a specific
lessee. It is anticipated that in the future, the Company may develop
relationships with third party purchasers of leases and will sell a portion of
the leases it makes to such third parties. The sale of leases to third party
purchasers may or may not require the Company to retain the servicing rights
to such leases.
The above policies and practices may and will be altered, amended and
supplemented as conditions and circumstances warrant. The Company has the
right to make changes in its day to day practices and policies in its sole
discretion.
Service Area. The Company intends to market and originate business
equipment leases throughout the United States. The Company will conduct its
business operations from the Company's main offices. As markets develop in
other areas, the Company may open additional offices within or outside its
present service area.
LOANS SECURED BY AUTOMOBILES AND TRUCKS
The Company may purchase loans originated by motor vehicle dealers (the
"Dealers") from the sale of new and used vehicles to consumers with
substandard credit profiles. The Company does not presently intend to make
loans directly to consumers.
The Market. The Federal Reserve statistical release dated April 5, 1996
reported that the automobile finance industry is the second largest consumer
finance market in the United States with over $359 billion in new and used
automobile loans outstanding in February 1996. Although the majority of these
loans were financed by banks, thrifts and the captive finance subsidiaries of
major automobile manufacturers, these traditional lenders have historically
avoided consistent involvement in the market for loans to individuals with
substandard credit (the "sub-prime market"). The sub-prime market is composed
primarily of borrowers with relatively modest incomes who have experienced
credit difficulties in the past, often as a result of job loss, illness,
divorce or other adversities. The primary lenders in this market are
independent finance companies such as the Company. The sub-prime market is
highly fragmented and is characterized by a large number of finance companies
operating on a regional basis. Reliable data concerning the size and
composition of the sub-prime market is not available; however, the Company
does not believe that any lender accounts for a significant share of the
market.
The Company intends to purchase substantially all of its auto and truck
loans in the sub-prime market originated only by Dealers in the ordinary
course of business who meet the following minimum criteria: Each Dealer must
(i) be either (a) a franchised new car dealer or (b) a properly licensed new
or used car dealer in business not less than three years; (ii) have an
established credit criteria; (iii) provide financial statements dated within
the last 12 months which show a positive net worth and positive earnings for
at least the most recent three years; (iv) have an established and favorable
reputation in the local business community; and (v) if a properly licensed
used car dealer but not a properly licensed new car dealer, have an
established location with an inventory of not less than thirty cars. The
loans will be purchased pursuant to the Dealer Agreements with the Company
which include recourse to the Dealer for breach of any warranties of the
dealer to the Company. The Company will purchase loans in accordance with its
credit standards which are based upon the vehicle buyer's ability and
willingness to repay the obligation as well as the value of the vehicle being
financed.
The loans will be selected by the Company by several criteria, including
the following: each loan was originated in the United States provides for
level monthly payments which fully amortize the amount financed over the
original term (except for the last payment, which may be different from the
level payment or which may be a final fixed value payment), has an outstanding
gross balance of not less than $2,000 or more than $20,000, is not more than
10 days past due and no borrower on any loan was noted in the related records
of the Dealer as being the subject of a bankruptcy proceeding. No selection
procedures believed by the Company to be adverse to Noteholders will be used
in selecting the loans.
The Company will only purchase the loans if: (a) the weighted average
APR of the loans owned by the Company, including the loans to be conveyed to
the Company, is not less than 18%, (b) the weighted average remaining term of
the loans to be conveyed to the Company is not greater than 36 months, (c) no
vehicle is older than seven (7) years as of the date of purchase of the loan,
(d) the weighted average purchase price of the loans is no more than 85% of
the unpaid principal balance, and (e) the average principal balance of the
loans will range from $5,000 up. There is no limitation upon the extent of
the distribution by APR and the geographic distribution of the loans.
In order to qualify as an "Eligible Loan", each contract transferred to
the Company, in addition to the criteria described in the preceding
paragraphs, must satisfy additional criteria including the following:
The purchase price for any loan may not exceed 80% of the total remaining
principal balance as of the related purchase date and the average purchase
price paid by the Company for all of the loans may not exceed 85% of the
aggregate remaining unpaid principal balance for the loans.
The purchase price for the loans may not exceed the average wholesale
value published by the National Automobile Dealers Association ("NADA") for
the related vehicle.
The loan must have a remaining term of 36 months or less.
The age of the vehicle may not exceed seven (7) years.
The mileage of the vehicle may not exceed 100,000 miles.
The borrower on the loan will have made a down payment in cash plus net
trade-in allowance of at least 20% of the Dealer's cost of the vehicle.
The APR rate on the loan will not be less than 18% and must not violate
any applicable usury laws.
The borrowers on the loans must have supplied necessary credit
information and credit verification procedures must have been performed in a
manner commensurate with standard industry practice.
With respect to the credit information to be supplied by the borrowers on
the loans, the Company has established certain credit criteria to be satisfied
by each borrower. In order to satisfy these criteria, a borrower, among other
things, must be able to provide verifiable personal references, must have a
valid driver's license, must have been a resident of the local area of
origination for a minimum of one year, and must be at least 18 years of age
and have no co-signers on the loan except immediate family members. In order
to verify the foregoing information in accordance with the Company's
expectations of standard industry practice, the Company will obtain from the
Dealer a copy of the credit application executed by the borrower which
contains the necessary information, to verify by telephone or otherwise the
borrower's' addresses, employment and personal references and to obtain a
credit report from a credit reporting agency.
All or part of the loans may provide for allocation of payments according
to the "sum of periodic balances" or "sum of monthly payments" method, similar
to the "Rule of 78's" ("Rule of 78's loans") or are monthly actuarial loans
("Actuarial loans") and together with Rule of 78's loans, "Precomputed
loans"). An Actuarial loan provides for amortization of the loan over a
series of fixed level payment monthly installments. Each monthly installment,
including the monthly installment representing the final payment on the loan,
consists of an amount of interest equal to 1/12 of the APR of the loan
multiplied by the unpaid principal balance of the loan, and an amount of
principal equal to the remainder of the monthly payment. A Rule of 78's loan
provides for the payment by the borrower of a specified total amount of
payments, payable in equal monthly installments on each due date, which total
represents the principal amount financed and add-on interest in an amount
calculated on the basis of the stated APR for the term of the loan. The rate
at which such amount of add-on interest is earned and, correspondingly, the
amount of each fixed monthly payment allocated to reduction of the outstanding
principal are calculated in accordance with the "Rule of 78's."
All or part of the loans may be simple interest loans ("Simple Interest
loans"). A Simple Interest loan provides for the amortization of the amount
financed under the loan over a series of fixed level monthly payments.
However, unlike the monthly payment under an Actuarial loan, each monthly
payment consists of an installment of interest which is calculated on the
basis of the outstanding principal balance of the loan multiplied by the
stated APR and further multiplied by the period elapsed (as a fraction of a
calendar year) since the preceding payment of interest was made. As payments
are received under a Simple Interest loan, the amount received is applied
first to interest accrued to the date of payment and the balance is applied to
reduce the unpaid principal balance. Accordingly, if a borrower pays a fixed
monthly installment before its scheduled due date, the portion of the payment
allocable to interest for the period since the preceding payment was made will
be less than it would have been had the payment been made as scheduled, and
the portion of the payment applied to reduce the unpaid principal balance will
be correspondingly greater. Conversely, if a borrower pays a fixed monthly
installment after its scheduled due date, the portion of the payment allocable
to interest for the period since the preceding payment was made will be
greater than it would have been had the payment been made as scheduled, and
the portion of the payment applied to reduce the unpaid principal balance will
be correspondingly less. In either case, the borrower pays a fixed monthly
installment until the final scheduled payment date, at which time the amount
of the final installment is increased or decreased as necessary to repay the
then outstanding principal balance.
In the event of the prepayment in full (voluntarily or by acceleration)
of a Rule of 78's loan, under the terms of the contract, a "refund" or
"rebate" will be made to the borrower of the portion of the total amount of
payments then due and payable under the contract allocable to "unearned"
add-on interest, calculated in accordance with a method equivalent to the Rule
of 78's. If an Actuarial loan is prepaid in full, with minor variations based
upon state law, the Actuarial loan requires that the rebate be calculated on
the basis of a constant interest rate. If a Simple Interest loan is prepaid,
rather than receive a rebate, the borrower is required to pay interest only to
the date of prepayment. The amount of a rebate under a Rule of 78's loan
generally will be less than the amount of a rebate on an Actuarial loan and
generally will be less than the remaining scheduled payments of interest that
would have been due under a Simple Interest loan for which all payments were
made on schedule.
The Company will account for the Rule of 78's loans as if such loans were
Actuarial loans. Amounts received upon prepayment in full of a Rule of 78's
loan in excess of the then outstanding Principal Balance of such loan and
accrued interest thereon (calculated pursuant to the actuarial method) will be
accounted for as interest.
Security Interest in Vehicle. In states in which retail installment sale
or lease contracts such as the loans evidence the credit sale of automobiles
and light duty trucks by Dealers to borrower's the contracts also constitute
personal property security agreements and include grants of security interests
in the vehicles under the applicable UCC. Perfection of security interests in
the automobiles and light duty trucks is governed by the motor vehicle
registration laws of the state in which the vehicle is located. In all states
in which the loans have been originated, a security interest in automobiles
and light duty trucks is perfected by notation of the secured party's lien on
the vehicle's certificate of title (in addition, in Louisiana, a copy of the
installment sale contract must be filed with the appropriate governmental
recording office).
All of the contracts acquired by the Company will name the Company or the
Dealer as obligee or assignee and as the secured party or lessor. The Company
also takes all actions necessary under the laws of the state in which the
vehicle is located to perfect the Company's security interest in the vehicle,
including, where applicable, having a notation of its lien recorded on such
vehicle's certificate of title. The borrower's on the contracts are not
notified of the sale from the Dealer to the Company and in the ordinary course
no action is taken to record the transfer of the security interest from the
Dealer to the Company by amendment of the certificates of title for the
vehicles or otherwise.
The Dealers will sell and assign to the Company the loans and their
interests in the vehicles securing the loans. However, because of the
administrative burden and expense, the Company may elect not to amend any
certificate of title to identify the Company as the new secured party on the
certificate of title relating to the vehicles.
In most states an assignment such as that to be used by the Company is an
effective conveyance of a security interest without amendment of any lien
noted on a vehicle's certificate of title, and the assignee succeeds thereby
to the assignor's rights as secured party. By not identifying the Company as
the secured party on the certificate of title, the security interest of the
Company in the vehicle could be defeated through fraud or negligence. In the
absence of fraud or forgery by the vehicle owner or the Dealer or
administrative error by state or local agencies, the notation of the Company's
or the Dealer's lien on the certificates will be sufficient to protect the
Company against the rights of subsequent purchasers of a vehicle or subsequent
lenders who take a security interest in a vehicle securing a loan. If there
are any vehicles as to which the Company failed to obtain a perfected security
interest, the security interest of the Company would be subordinate to, among
others, subsequent purchasers of the vehicles and holders of perfected
security interests. Such a failure, however, would constitute a breach of the
warranties of the Dealer and would create an obligation of the Dealer to
repurchase the related loans unless the breach is cured.
Under the laws of most states the perfected security interest in a
vehicle would continue for four months after a vehicle is moved to a state
other than the state in which it is initially registered and thereafter until
the vehicle owner re-registers the vehicle in the new state. A majority of
states generally require surrender of a certificate of title to re-register a
vehicle; accordingly, a secured party must surrender possession if it holds
the certificate of title to the vehicle, or, in the case of a vehicle
registered in a state providing for the notation of a lien on the certificate
of title but not possession by the secured party, the secured party would
receive notice of surrender if the security interest is noted on the
certificate of title. Thus, the secured party would have the opportunity to
re-perfect its security interest in the vehicle in the state of relocation.
In states that do not require a certificate of title for registration of a
motor vehicle, re-registration could defeat perfection. In the ordinary
course of servicing loans, the Company takes steps to effect re-perfection
upon receipt of notice of re-registration or information from the borrower as
to relocation. Similarly, when a borrower sells a vehicle, the Company must
surrender possession of the certificate of title or will receive notice as a
result of the lien of the Company or the Dealer noted thereon and accordingly
will have an opportunity to require satisfaction of the related loan before
release of the lien.
Under the laws of most states liens for repairs performed on a motor
vehicle and liens for unpaid taxes take priority over even a perfected
security interest in a vehicle. The Dealers will represent that each security
interest in a vehicle is or will be prior to all other present liens upon and
security interests in such vehicle. However, liens for repairs or taxes could
arise at any time during the term of a loan. No notice will be given to the
Company or the Noteholders in the event such a lien arises.
Repossession. In the event of default by vehicle purchasers, the holder
of the retail installment sale contract has all the remedies of a secured
party under the UCC, except where specifically limited by other state laws.
Among the UCC remedies, the secured party has the right to perform self-help
repossession unless such act would constitute a breach of the peace.
Self-help is the method employed by the Company in most cases and is
accomplished simply by retaking possession of the vehicle. In the event of
default by the borrower, some jurisdictions require that the borrower be
notified of the default and be given a time period within which he may cure
the default prior to repossession. Generally, the right of reinstatement may
be exercised on a limited number of occasions in any one-year period. In
cases where the borrower objects or raises a defense to repossession, or if
otherwise required by applicable state law, a court order must be obtained
from the appropriate state court, and the vehicle must then be repossessed in
accordance with that order.
Notice of Sale; Redemption Rights. The UCC and other state laws require
the secured party to provide the borrower with reasonable notice of the date,
time and place of any public sale and/or the date after which any private sale
of the collateral may be held. The borrower has the right to redeem the
collateral prior to actual sale by paying the secured party the unpaid
principal balance of the obligation plus reasonable expenses for repossessing,
holding and preparing the collateral for disposition and arranging for its
sale, plus, in some jurisdictions reasonable attorneys' fees, or, in some
states by payment of delinquent installments or the unpaid balance.
Deficiency Judgments and Excess Proceeds. The proceeds of resale of the
vehicles generally will be applied first to the expenses of the sale and
repossession and then to the satisfaction of the indebtedness. While some
states impose prohibitions or limitations on deficiency judgments if the net
proceeds from resale do not cover the full amount of the indebtedness, a
deficiency judgment can be sought in those states that do not prohibit or
limit such judgments. However, the deficiency judgment would be a personal
judgment against the borrower for the shortfall, and a defaulting borrower can
be expected to have very little capital or sources of income available
following repossession. Therefore, in many cases, it may not be useful to
seek a deficiency judgment or, if one is obtained, it may be settled at a
significant discount.
Occasionally, after resale of a vehicle and payment of all expenses and
all indebtedness, there is a surplus of funds. In that case, the UCC requires
the lender to remit the surplus to any holder of a lien with respect to the
vehicle or if no such lienholder exists or there are remaining funds, the UCC
requires the lender to remit the surplus to the former owner of the vehicle.
Consumer Protection Laws. Numerous federal and state consumer protection
laws and related regulations impose substantial requirements upon lenders and
servicers involved in consumer finance. These laws include the
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Federal Trade
Commission Act, the Fair Credit Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Procedures Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board's Regulations B and Z, the Soldier's and Sailor's Civil
Relief Act of 1940 state adoptions of the National Consumer Act and of the
Uniform Consumer Credit Code (the "UCCC") and state motor vehicle retail
installment sales acts, retail installment sales acts, and other similar laws.
Also, state laws impose finance charge ceilings and other restrictions on
consumer transactions and require contract disclosures in addition to those
required under federal law. These requirements impose specific statutory
liabilities upon creditors who fail to comply with their provisions. In some
cases, this liability could affect an assignee's ability to enforce consumer
finance contracts such as the loans. These laws and regulations also limit
the amounts the Company can charge borrowers for certain services related to
its lending activities and is required to provide detailed disclosure to
borrowers, in a specified form, related to the cost of borrowing. Because the
regulations are continually changing, the Company intends to maintain
compliance with the various federal and state laws through its in-house and
outside counsel which continually review the Company's documentation and
procedures and monitor and advise the Company on various changes in the laws.
The so-called "Holder-in-Due-Course" Rule of the Federal Trade Commission
(the "FTC Rule"), the provisions of which are generally duplicated by the
Uniform Consumer Credit Code, other statutes, or the common law, has the
effect of subjecting a seller (and certain related lenders and their
assignees) in a consumer credit transaction and any assignee of the seller to
all claims and defenses which the borrower in the transaction could assert
against the seller of the goods. Liability under the FTC Rule is limited to
the amounts paid by the borrower under the contract and the holder of the
contract may also be unable to collect any balance remaining due thereunder
from the borrower.
Most of the loans will be subject to the requirements of the FTC Rule.
Accordingly, the Company, as holder of the loans, will be subject to any
claims or defenses that the purchaser of the related vehicle may assert
against the seller of the vehicle. Such claims are limited to a maximum
liability equal to the amounts paid by the borrower on the loan. If a
borrower were successful in asserting any such claim or defense, such claim or
defense would constitute a breach of the Dealer's warranties and would create
an obligation of the Dealer to repurchase the loan unless the breach is cured.
Courts have applied general equitable principles to secured parties
pursuing repossession or litigation involving deficiency balances. These
equitable principles may have the effect of relieving a borrower from some or
all of the legal consequences of a default.
In several cases, consumers have asserted that the self-help remedies of
secured parties under the UCC and related laws violate the due process
protections provided under the 14th Amendment to the Constitution of the
United States. Courts have generally upheld the notice provisions of the UCC
and related laws as reasonable or have found that the repossession and resale
by the creditor do not involve sufficient state action to afford
constitutional protection to consumers.
The Dealers will warrant that each loan complies with all requirements of
law in all material respects. Accordingly, if a borrower has a claim against
the Company for violation of any law and such claim materially and adversely
affects the Company's interest in a loan, such violation would constitute a
breach of the warranties of the Dealer and would create an obligation of the
Dealer to repurchase the loan unless the breach is cured.
Other Limitations. In addition to the laws limiting or prohibiting
deficiency judgments, numerous other statutory provisions, including federal
bankruptcy laws and related state laws, may interfere with or affect the
ability of a lender to realize upon collateral or enforce a deficiency
judgment. For example, if a Chapter 13 proceeding under the federal
bankruptcy law, a court may prevent a lender from repossessing an automobile,
and, as part of the rehabilitation plan, reduce the amount of the secured
indebtedness to the market value of the automobile at the time of bankruptcy
(as determined by the court), leaving the party providing financing as a
general unsecured creditor for the remainder of the indebtedness. A
bankruptcy court may also reduce the monthly payments due under a contract or
change the rate of interest and time of repayment of the indebtedness.
Transfer of Vehicles. The loans prohibit the sale or transfer of a
vehicle by the borrower without the Company's consent and permit the Company
to accelerate the maturity of the loan in the event of a sale or transfer
without the Company's consent.
SECURITIZATION OF LOANS
The Company anticipates that it will build portfolios of business and
commercial loans (which include business leases) and substandard automobile
and light truck loans and enter into securitizations of all or part of these
portfolios. The Company believes that a securitization program provides a
number of benefits by allowing the Company to create and additional profit
center, diversify its funding base, provide liquidity and lower its cost of
funds.
The diversification of its funding base through securitization is an
objective of the Company. Generally, a securitization involves the transfer
by the Company of loans representing a series of loans to a single purpose
trust in exchange for certificates issued by the trust. The certificates
represent an undivided ownership interest in the loans transferred to the
trust. Typically, the certificates will consist of a class of senior
certificates, a class of subordinated certificates and a residual interest.
In connection with the securitization, the senior certificates are sold to
investors and the subordinate certificates and residual interest are typically
retained by the Company. As a result of the sale of the senior certificates,
the Company will receive a cash payment representing a substantial portion of
the principal balance of the loans held by the trust. The senior certificates
will entitle the holder to be repaid the principal of its purchase price and
the certificates will bear interest at a stated rate of interest. The stated
rate of interest will typically be substantially less than the interest rate
required to be paid by the borrowers with respect to the underlying loans. As
a consequence, the Company is able to receive cash for a portion of its
portfolio and to pay the principal and interest required by the senior
certificate with the cash flows from the underlying loans owned by the trust.
However, since the interest in the loans held by the Company (the subordinate
certificate and the residual interest) is subordinate to the senior
certificate, the Company retains a portion of the risk that the full value of
the underlying loans will not be realized. Additionally, the holder of the
senior certificates will receive certain additional payments on account of
principal in order to reduce the balance of the senior certificates in
proportion to the subordinate certificate held by the Company. The additional
payments of principal are designed to increase the senior certificate holder's
protection against loan losses by preserving the availability of the
subordination provided by the subordinate certificates. In the typical
subordination structure, the Company, as the holder of the residual interest
in the trust will be entitled to receive all of the remaining interest in the
loans at the time of the termination of the trust.
In order to securitize pools of loans, the Company believes it will be
necessary to aggregate similar loans, such as substandard motor vehicle loans,
into a common offering. The Company expects that the minimum dollar amount
necessary to effectively justify the origination and offering costs is in the
range of $7.5 million for a private offering and $25 million for a public
offering. Based upon its financial model, the Company forecasts its entry
into the securitization market during the first quarter of its second year of
operations and is conditioned on the Company's ability to develop the
necessary business reputation and industry relationships.
In order to successfully securitize its loans, the Company, must develop
a reputation in the financial community and with the commercial rating
agencies as having the ability to acquire and service, or arrange for the
servicing, of loans which are intended to become a part of the securitized
pool. In addition, the Company must develop relationships with one or more
banks or trust companies which are qualified to act as owner trustee and
indenture trustee in order to qualify for participation in the securitization
market. Any successful securitization of loans is, therefore, dependent upon
assembling the several necessary participants including the indenture trustee,
credit enhancement facility, owner trustee and the underwriter or placement
agent who will ultimately sell the securitized instrument into the capital
markets. The ability to demonstrate expertise in the necessary functions to
securitization and to attract the necessary industry participants may be an
expensive and time consuming process for a Company whose management team has
no experience in these matters. However, based upon preliminary discussions
by the Company with representatives of the several necessary participants, the
Company's forecast of entry into the securitization market during the first
quarter of its second year of operations is reasonable.
GOVERNMENT REGULATION AND LICENSING
Rules and Regulations. The Company's motor vehicle lending business will
be subject to numerous federal and state consumer protection laws and related
regulations which impose substantial requirements upon lenders and servicers
involved in consumer finance. These laws include the Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Federal Trade Commission Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection
Procedures Act, the Magnuson-Moss Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldier's and Sailor's Civil Relief Act of 1940 state
adoptions of the National Consumer Act and of the Uniform Consumer Credit Code
(the "UCCC") and state motor vehicle retail installment sales acts, retail
installment sales acts, and other similar laws. Also, state laws impose
finance charge ceilings and other restrictions on consumer transactions and
require contract disclosures in addition to those required under federal law.
These requirements impose specific statutory liabilities upon creditors who
fail to comply with their provisions. In some cases, this liability could
affect an assignee's ability to enforce consumer finance contracts such as the
loans.
The so-called "Holder-in-Due-Course" Rule of the Federal Trade Commission
(the "FTC Rule"), the provisions of which are generally duplicated by the
Uniform Consumer Credit Code, other statutes, or the common law, has the
effect of subjecting a seller (and certain related lenders and their
assignees) in a consumer credit transaction and any assignee of the seller to
all claims and defenses which the borrower in the transaction could assert
against the seller of the goods. Liability under the FTC Rule is limited to
the amounts paid by the borrower under the contract and the holder of the
contract may also be unable to collect any balance remaining due thereunder
from the borrower.
Most of the motor vehicle loans will be subject to the requirements of
the FTC Rule. Accordingly, the Company, as holder of the loans, will be
subject to any claims or defenses that the purchaser of the related vehicle
may assert against the seller of the vehicle. Such claims are limited to a
maximum liability equal to the amounts paid by the borrower on the loan. If a
borrower were successful in asserting any such claim or defense, such claim
is cured.
These rules and regulations, among other things, impose licensing
obligations on the Company if it originates loans, prohibit discrimination,
regulate assessment, collection, foreclosure and claims handling, payment
features, mandate certain disclosures and notices to borrowers and, in some
cases, fix maximum interest rates, and fees. Failure to comply with these
requirements can lead to, termination or suspension of licenses, certain
rights of rescission for mortgage loans, class action lawsuits and
administrative enforcement actions.
Licensing. The Company does not need any government approval or licenses
for its initial primary business, commercial lending, in the states in which
it presently proposes to operate. Furthermore, the Company does not and will
not need federal or local government approval or licenses for the purchase of
motor vehicle loans or securitization of the commercial loans from its initial
primary business or its motor vehicle loans. However, as the geographic
coverage of the Company's commercial lending business increases in the future
some states will require licensing for the Company to offer some of its
mortgage banking services. In such event the Company will seek to acquire
such licenses.
As of the date of this Prospectus, the Company has not applied for any
licenses in any state and there is no certainty, at this time, of the time of
when such licenses will be needed or the cost thereof. Management of the
Company does not believe the lack of licenses will materially adversely affect
the Company's ability to do business because there are ample investment
opportunities in unlicensed activities. Management does not know of any
impediments, disqualification or other reason why the Company will not qualify
for any licenses it may need in the future.
EMPLOYEES
The executive officers of the Company will devote substantially all their
time to operations of the Company for no compensation until the Company's cash
flow is adequate to cover market level compensation. Bookkeepers,
secretaries, administrative assistants and support staff are presently
employed by William T. Juliano, or one of his affiliates, and he will make
their services available without cost to the Company until cash flow from
operations will cover their costs. See "Management - Executive Compensation."
and "Management's Plan of Operation." The staff whose services are used by
the Company have been employed by Mr. Juliano or his affiliates for more than
15 years and the Company believes its relationship with the employees is good.
PROPERTY
The Company presently does not hold title to any real estate.
The Company has filed an application for registration of its name and
logo as a service mark with the U.S. Patent and Trademark Office. The
application is pending.
Mr. William T. Juliano, the Chief Executive Officer of the Company, has
agreed to provide the Company, without cost, office space, furniture and
equipment for the 12 month period ending February 12, 1998.
LEGAL PROCEEDINGS
The Company is not a party to any pending or threatened legal
proceedings.
MANAGEMENT'S PLAN OF OPERATION"MANAGEMENT'SPLANOFOPERATION"
PLAN OF OPERATION - OVERVIEW
The Company is newly organized and has very limited operating history.
Neither the Company nor its management have any experience in raising or
investing funds. However, the Company's objective is to become a significance
participant in three interrelated segments of the financial services industry.
The Company believes that it can achieve its objective by its commitment to
servicing a market niche which is not adequately serviced by commercial banks
or traditional lending sources. In servicing its market, the Company will
stress the importance of identifying profitable lending opportunities and
quick closing.
The income generated from the Company's loan portfolio will be used to
pay principal and interest on the Notes, related operating costs and expenses
of the Company. The earnings on the loans and other assets owned by the
Company and the interest cost of the Notes will determine the Company's
results of operations in the future. The Company believes there are no
changes, trends or anomalies which will materially adversely affect the
anticipated delinquency and loss experience of the loans.
PLAN OF OPERATION FOR NEXT 12 MONTHS
Until the Company receives proceeds from the sale of Notes, invests the
proceeds and receives a return on the investment, the Company's only source of
funds for advertising, marketing and promotion will be its limited equity
capital and the income derived from its investment. Therefore, the Company
may expend significant cash in the early months of operation to cover its cost
of developing the business.
During the first 12 months following the date of this Prospectus the
Company anticipates that proceeds from the sale of Notes will begin slowly and
increase as the Company's marketing plan takes effect. The Company's first
year forecast assumes total proceeds from the sale of Notes in the range of
$35,000,000. Without regard to the amount of Notes sold, the Company has
sufficient resources to pay its operating expenses for the first 12 months
because the Company's executive office and the furniture and equipment located
in the space is furnished by Mr. Juliano without cost to the Company. See
"Business of the Company - Property." The executive officers of the Company
will devote substantially all their time to operations without compensation
until the Company's cash flow is adequate to cover market level compensation.
Bookkeepers, secretaries, administrative assistants and support staff are
presently employed by William T. Juliano, or one of his affiliates, and he
will make their services available without cost to the Company until cash flow
from operations will cover their costs. See "Business of the Company -
Employees."
The Company will initially sell Notes only through its employees.
However, the Company is likely to engage the services of one or more
broker-dealers during the first year of operations. In order to arrive at its
forecasted Note sales for the first 12 months, management had preliminary
discussions with several small broker-dealers and examined the amount of
similar debt instruments sold by two comparable issuers. The sales of other
issuers was discounted substantially to account for the differences in
experience at raising funds. Management believes its estimates are realistic
and conservative. A part of the Company's plan to sell the Notes is direct
personal contact with selected broker-dealers in the states where the offering
is registered. The broker-dealers will be selected based upon their number of
registered representatives and access to financial products comparable to the
Notes offered by the Company. Management believes that it will fill a need
for broker-dealers identified by its selection process because each have a few
clients for whom the Notes are suitable investments and do not otherwise have
the ability to participate in a similar primary offering.
The following forward-looking table is the Company's present best
reasonable estimate of the possible use of different increments of proceeds
from the offering. Numerous uncertainties exist in estimating the amount and
use of future proceeds. The accuracy of any estimate is a result of the
quality of available market data, interpretation of the data, and business
judgment. Actual results after the date of an estimate may indicate the need
to revise the estimate. The quantity, quality, yield and category of
available loans and other investments cannot be accurately predicted and
changes with general economic conditions and interest rates. Accordingly, the
actual use of proceeds set forth in the following table may be materially
different from the actual use of proceeds.
Time after date of this Prospectus
----------------------------------
Type Investment Three Months Six Months Nine Months One
- --------------------------------- ---------- ---------- ---------- ----------- ----------- ----------- -----------
Case 11 Case 22 Case 1 Case 2 Case 1 Case 2 Case 1
---------- ---------- ---------- ----------- ----------- ----------- -----------
Commercial loans and leases3
$2,600,000 $5,000,000 $5,000,000 $ 7,800,000 $ 7,300,000 $16,700,000 $11,100,000
Auto and light truck loans4
-0- -0- -0- 2,100,000 2,100,000 3,400,000 5,00,000
Securitization -0- -0- -0- -0- -0- -0- -0-
General and Administrative Costs5
-0- -0- -0- -0- -0- -0- -0-
Offering expenses
sales commissions
5%6 150,000 275,000 250,000 525,000 500,000 1,075,000 850,000
other offering
expense 138,000 138,000 -0- -0- -0- -0- -0-
Uninvested proceeds 112,000 87,000 50,000 75,000 100,000 325,000 50,000
---------- ---------- ---------- ----------- ----------- ----------- -----------
Total Use of
Proceeds $3,000,000 $5,500,000 $5,000,000 $10,500,000 $10,000,000 $21,500,000 $17,000,000
========== ========== ========== =========== =========== =========== ===========
Type Investment Year
- --------------------------------- -----------
Case 2
-----------
Commercial loans and leases3
$22,150,000
Auto and light truck loans4
11,000,000
Securitization -0-
General and Administrative Costs5
-0-
Offering expenses
sales commissions
5%6 1,750,000
other offering
expense -0-
Uninvested proceeds 100,000
-----------
Total Use of
Proceeds $35,000,000
===========
__________________________
1 Worst case.
2 Most likely case.
3 This category includes commercial first and second mortgage loans ranging
from $50,000 to $3,500,000 or more. See "Business of the Company-Initial
Primary Business."
4 The average principal balance of the loans is anticipated to range from
$5,000 up to $30,000 or more.
5 The executive officers of the Company will devote substantially all their
time to operations without compensation until the Company's cash flow is
adequate to cover market level compensation. Bookkeepers, secretaries,
administrative assistants and support staff are presently employed by William
T. Juliano, or one of his affiliates, and he will make their services
available without cost to the Company until cash flow from operations will
cover their costs. The Company is provided the use of its executive offices
as well as furniture and equipment by Mr. Juliano without cost to the Company
for a term ending February 12, 1998.
6Assumes sale by broker-dealers which have not yet been identified.
As of the date of this Prospectus, the Company has no established
customers to provide potentially profitable transactions which fit the
Company's proposed business. Therefore, until the Company is successful in
developing a pool of customers and sources of potential transactions, the
opportunities for investing the proceeds from the sale of Notes will be
limited.
Because William Juliano has been very active for many years in buying,
selling, financing and developing many kinds of commercial real estate, the
Company presently has received preliminary expressions of interest to finance
approximately $5 million of projects ranging from $500,000 to $3.5 million
each. The Company anticipates, but is not assured, that the initial proceeds
from the sale of Notes may be used to fund the commercial real estate
investment opportunities which are tentatively available or other similar
investments which do not require any state license. In such event, the yield
will be below the Company's expected average rate of interest income but the
credit will be high quality and the origination cost will be minimal.
The Company forecasts a cost of funds in the range of 9.4% per annum,
after offering and selling expenses, and net investment yield from its total
portfolios of commercial and motor vehicle loans after a reasonable reserve
for losses, delinquencies and servicing costs, in the range of 15.75%. Thus,
the positive spread on the Company's loan portfolio is forecasted to be
approximately 6.35%, or $2,222,000 per year when the projected first year Note
proceeds of $35,000,000 are fully invested. After allowing for the time to
market the Notes, receive and invest the proceeds, the Company's financial
model assumes average invested proceeds for the first 12 months of $15,000,000
and net income before operating expenses of approximately $970,000. Because
the Company's staffing needs are driven by the amount of Note proceeds
received and funds available for investment, additional operations personnel
will be hired at a rate to match receipt and investment of Note sales
proceeds. However, the Company believes that salaries, general and
administrative, and other operating costs for the first 12 months at the
projected level of business should not exceed $600,000.
The Company intends to maximize its interest and fee income to be earned
on its loan portfolio by selling loans from its portfolio to unrelated third
parties and by securitizing all or a portion of its portfolio. These
transactions are intended to provide an additional source of liquidity for
lending activities.
YIELD ASSUMPTIONS
The projected annual net investment yield of 15.75% assumes a blended
rate from the two classes of loans targeted by the Company. Annual rates are
expected to range from a low of 10% for high quality, low risk commercial real
estate loans to 23% to 25% for substandard credit quality motor vehicle loans.
The average yield on commercial loans and leases is assumed to be in the range
of 10% to 18%. Because the Company's initial primary business will be limited
to commercial loans and leases, the positive spread on the Company's loan
portfolio will be substantially lower than the spread expected when the
projected first year note proceeds of $35,000,000 is fully invested. Annual
investment yield includes reserves for loan losses which have been calculated
by examining the loan loss reserves and actual loss experience of companies
with loan portfolios similar to the loans contemplated by the Company.
Because management of the Company has limited experience with originating,
servicing and managing a loan portfolio similar to the portfolio intended by
the Company, management will continually monitor its loans for delinquencies
and potential losses in order to establish proper reserves and predict actual
losses. In addition Management has requested its independent auditors
recommend a system of internal controls and review procedures to assist in
calculating loan loss reserves.
SOURCES OF INCOME
The Company will derive income from four basic sources: (i) interest and
other charges paid on its loans, (ii) loan origination fees, (iii) a limited
amount of prepayment penalties, and (iv) securitization of loans. The Company
does not anticipate significant income from prepayment of loans in its
portfolio principally because of the fees payable upon prepayment. Thus, the
Company expects the asset/liability maturity risk arising out of prepayments
to be minimal even in periods of declining interest rates because of the
substantial prepayment penalties. The Company anticipates that substantially
all of its loans will be made at fixed rates. However, the Company's cost of
funds will be sensitive to changes in long and short term interest rates.
Therefore, a rise or fall in the general interest rate market will have the
effect of increasing or decreasing the spread which the Company anticipates
between the cost of funds on its short and medium term Notes and the interest
earned on its loan portfolio.
In order to minimize the interest rate risk, the Company intends to
match, to the extent possible, maturities of its loan portfolio and maturities
of the Notes. There will be no interest rate risk in connection with Notes
which mature at the same time as the same dollar amount of portfolio loans
because the obligation to pay interest and the offsetting interest income will
terminate at the same time. Therefore, proceeds from newly issued Notes at
current market interest rates may be used to fund new loans at comparable
market interest rates. To the extent that the loan maturities are of
significantly longer term than the Note maturities, the Company intends to
manage the interest rate risk by selling whole loans in the secondary loan
market or securitizing pools of loans for sale in the public or private
capital markets and reinvesting the funds in loans with maturities that match
maturities of the same dollar amount of Notes. If the Company is successful
it its interest rate management strategy, interest rate risk will be
substantially reduced or eliminated entirely. See "Business of the
Company-Securitization of Loans."
SOURCES OF CAPITAL AND LIQUIDITY
The Company believes that the proceeds of the sale of subordinated debt
such as the Notes will be a primary source of funds to meet its liquidity
requirements. The proceeds of the Note sales will be used to fund general
operating and lending activities. After receipt and investment of the Note
proceeds, the Company's primary sources of liquidity will be payments on the
loans and the secondary source will be the limited equity capital of the
Company as of the date of this Prospectus. Until receipt of income from
investment of the Note proceeds, the Company's source of liquidity will be
income from investment of its equity capital. The Company's office space,
furniture and equipment adequate to support the Company's anticipated level of
business for the first 12 months of operation is provided by William T.
Juliano without cost to the Company. The Company does not presently intend to
use leverage in addition to the Notes as a part of its investment strategy and
has no bank lines of credit or similar sources of loan capital.
The Company intends to meet its obligations to repay the Notes as they
mature with income generated from its lending activities, funds generated from
repayment of outstanding loans, extensions of maturing Notes and new debt
financing. There can be no assurance that the Company will be able to sell
the Notes at a rate that will permit growth and expansion at the expected
levels or to satisfy future debt obligations. If all of the Notes are sold,
the Company will have debt in the amount of $50,000,000 and only approximately
One Million Dollars ($1,000,000) in equity which has been provided by the
shareholders of the Company. Therefore, substantially all the risk of loss
will be borne by the Noteholders because for every $1.00 at risk by the
shareholders of the Company $50.00 is at risk by the Noteholders.
Management believes that the Company is and will continue to be a viable
enterprise by investing its $1,000,000 of presently available equity capital
without regard to the amount of Notes sold. The proceeds from the sale of any
amount of Notes will increase the Company's ability to make investments. Such
additional investments will produce yields substantially in excess of the
interest payable under the terms of the Notes and the maturities will be timed
to coincide with maturities of the Notes. Therefore, the Company believes it
will be able to timely pay interest and principal on any amount of Notes sold.
The Company presently is provided the use of office space for its
executive offices as well as furniture and equipment. The office space,
furniture and equipment is provided for a term ending February 12, 1998.
MANAGEMENT"MANAGEMENT"
EXECUTIVE OFFICERS AND DIRECTORS
The number of directors is presently fixed at two, William T. Juliano and
Thomas E. Juliano. Each of the directors hold office for the current year and
until their successors are elected and qualify. At each annual meeting of
stockholders, directors will be elected by the holders of the Common Stock to
succeed those directors whose terms are expiring. William T. Juliano is the
father of Thomas E. Juliano. As of the date of this Prospectus, William and
Thomas Juliano are the only directors, executive officers or employees,
however, they both intend to devote substantially all their time to the
operations of the Company. As the Company grows and its level of activity
increases, one or more independent directors executive, management and support
staff will be added. The new hires will come from a large available pool of
people with experience in originating and servicing loans to the class of
borrowers intended to be targeted by the Company. Because of recent and
continuing consolidations in the banking industry, many executive and middle
managers with extensive operational and lending experience are available.
Until the Company reaches a size level sufficient to attract qualified
independent directors and provide director liability insurance coverage,
management of the Company will operate without outside oversight. The lack of
independent directors increases the risk to purchasers of Notes that the
investment decisions of management will not be reviewed by disinterested third
parties. However, the Company has adopted a policy, that so long as there are
no independent directors, not to enter into any transactions in which any of
its officers, directors, security holders or affiliates have a direct or
indirect pecuniary interest unless the Company is provided an independent
appraisal to establish the value of the transaction. "Certain Relationships
and Related Transactions."
The following table sets forth certain information with respect to each
of the directors and executive officers:
Name Age Position
- ------------------ --- ------------------------------------------------
William T. Juliano 50 President & Chief Executive Officer
Thomas E. Juliano 25 Treasurer, Chief Financial Officer and Secretary
All officers serve at the discretion of the Board of Directors.
WILLIAM T. JULIANO has been an officer and director of the Company since
its organization, November 16, 1995. Commencing as an associate of his
father, the founder of Cherry Hill Realty Company in New Jersey, in 1966 and
continuing independently, Mr. Juliano has been in the business of buying,
selling, developing, owning and leasing real estate for his own account and
for major corporate users. During the period from 1967 to 1971 he constructed
25 Burger Chef restaurants under long term leases. His direct responsibility
in connection with development of the restaurants included site acquisition,
securing building, zoning, variance and driveway access permits as well as
permits for signs and environmental compliance. Mr. Juliano has been
responsible for the development and construction of properties in the State of
Alaska as well as other states of the United States for corporate clients such
as United Parcel Service, Motorola, K-Mart Corporation, American Stores, Radio
Shack, the General Foods Corporation, Texaco and Eckerd Drugs. In each case
Mr. Juliano's responsibilities have included arranging financing, site
selection and acquisition, supervising engineering, architectural and
mechanical design, legal and environmental compliance as well as permits for
building, zoning, occupancy, signage and driveway access. Prior to the real
estate collapse of the late 1980's, William Juliano owned or controlled
commercial properties, consisting of land, hotels, shopping centers,
industrial centers and office buildings with a total market value in the range
of $50 Million.
Commencing in 1990 companies controlled by the Mr. Juliano restructured
approximately $20 Million of real estate debt with institutional lenders in
order to realign the relationship of debt service to reduced levels of income
and total debt to lower market values resulting from the general decline in
real estate values and other events. As a part of the restructuring process,
the debt covering three (3) properties was renegotiated with the lenders, two
(2) properties were sold and the debt covering six (6) properties was
rearranged in nine (9) separate Chapter 11 proceedings. During the last five
years five separate cases were filed by Mr. Juliano's companies under Chapter
11 of the Bankruptcy Code. None of such cases were commenced by Mr. Juliano
individually and, as of the date of this Prospectus, only one such case is
still pending. Mr. William T. Juliano's ownership interest in the Company is
not a risk as a result of the pending case in Chapter 11.
THOMAS E. JULIANO has been an officer and director of the Company since
its organization, November 16, 1995, is a graduate of Rider University with a
Bachelor of Science in Business. Since his graduation from college in 1994,
Thomas Juliano has been engaged in the real estate operations with his father,
William T. Juliano. During 1995 he had management responsibility for all
aspects connected with the development of a retail shopping center and since
1994 has had management responsibility for the day-to-day operation of two (2)
hotels one with 168 units and the other with 240 units. Mr. Juliano is
corporate Secretary and a registered representative of Delco Securities
Company, a recently organized company which is a member of the National
Association of Securities Dealers, Inc.
EXECUTIVE COMPENSATION
The Company was incorporated on November 16, 1995 and did not conduct any
operations prior to that time. No person has received compensation from the
Company since its incorporation and no compensation will be paid to the
executive officers of the Company until the Company is profitable.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that directors will
not be personally liable for monetary damages for breach of their fiduciary
duties, except for breaches of the duty of loyalty, acts or omissions not in
good faith or involving intentional misconduct or a knowing violation of law,
unlawful dividends or transactions involving an improper personal benefit.
Moreover, if Delaware law were to change in the future to permit the further
elimination or limitation the personal liability of directors, the liability
of a director of the Company would be eliminated or limited to the fullest
extent permitted by Delaware law, as so amended.
The Company's Certificate of Incorporation provides that the Company
shall, to the full extent permitted by the State of Delaware, as amended from
time to time, indemnify all persons whom they may indemnify pursuant thereto,
including advancement of expenses.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provision, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. Reference is made to Item 24 of the Registration
Statement of which this Prospectus is a part for additional information
regarding the indemnification of officers and directors.
BENEFICIAL OWNERSHIP OF SECURITIES"BENEFICIALOWNERSHIPOFSECURITIES"
The following table sets forth certain information concerning the
directors, executive officers and the beneficial owners of all classes of
capital stock of five (5%) percent or more of the Common Stock of the Company,
the only class of voting securities of the Company.
NAME AND POSITION NUMBER OF SHARES BENEFICIALLY OWNED PERCENTAGE OF CLASS
- ------------------------------------- ------------------------------------------ --------------------
William T. Juliano 1,000 Series A Cumulative Preferred Shares 100%
President, Chief
Executive Officer and
Director
Christiana Executive Campus
220 Continental Drive, Suite 310
Newark, Delaware 19713-4313
Thomas E. Juliano 1,000 Common Shares 100%
Chief Financial Officer,
Secretary, Treasurer and
Director
Christiana Executive Campus
220 Continental Drive, Suite 310
Newark, Delaware 19713-4313
TOTAL (All executive officers and 1,000 Series A Cumulative Preferred 100%
directors as a group (2 persons)) 1,000 Common Shares 100%
(1) Under the rules of the Securities and Exchange Commission, a
person is deemed to be the beneficial owner of a security if such person has
or shares the power to vote or direct the voting of such security or the power
to dispose or direct the disposition of such security. A person is also
deemed to be a beneficial owner of any securities if that person has the right
to acquire beneficial ownership within 60 days. Accordingly, more than one
person may be deemed to be a beneficial owner of the same securities. Unless
otherwise indicated by footnote, the named individuals have sole voting and
investment power with respect to the shares of Common Stock beneficially owned
and sole investment power with respect to the shares of Preferred Stock
beneficially owned.
(2) Represents the number of shares of Common Stock beneficially
owned as of February 18, 1997 by each named person or group, expressed as a
percentage of all of the shares of such class outstanding as of such date.
CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS"CERTAINRELATIONSHIPSANDRELATEDTRANSACTIONS"
The Company does not have any formal policy concerning the direct or
indirect pecuniary interest of any of its officers, directors, security
holders or affiliates in any investment to be acquired or disposed of by the
Company or in any transaction to which the Company is a party or has an
interest. However, the Company has adopted a policy not to enter into any
such transactions unless approved by a majority of the entire Board of
Directors, not including any interested director or supported by an
independent appraisal. As of the date of this Prospectus, there are no
independent directors. Therefore, in order for the Company to enter into a
transaction in which any of its officers, directors, security holders or
affiliates have a direct or indirect pecuniary interest, the Company has
adopted a policy to require and independent appraisal to establish the value
of the transaction.
MARKET FOR COMMON EQUITY"MARKETFORCOMMONEQUITY"
There is currently no public trading market for shares of the Company's
common stock, par value $.001 (the "Common Stock"). As of the date of this
Prospectus, Thomas E. Juliano is the record and beneficial owner of all the
outstanding shares of Common Stock. The Company has never declared a dividend
on the Common Stock.
MATERIAL INCOME TAX CONSEQUENCES"MATERIALINCOMETAXCONSEQUENCES"
GENERAL
The discussion set forth below is based upon the opinion of Sonfield &
Sonfield, special federal tax counsel for the Company ("Tax Counsel") with
respect to the material income tax consequences of the purchase, ownership and
disposition of the Notes. This opinion does not purport to deal with all
aspects of federal income taxation that may be relevant to holders of the
Notes in light of their specific investment circumstances, nor to certain
types of holders subject to special treatment under the federal income tax
laws (for example, banks, life insurance companies and tax-exempt
organizations). The opinion of Tax Counsel does not discuss the tax
consequences arising under the laws of any state, foreign country or other
jurisdiction. This opinion is based upon present provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), the regulations promulgated
thereunder, and judicial or ruling authority, all of which are subject to
change, which change may be retroactive. This opinion of counsel, however, is
not binding on the Internal Revenue Service (the "IRS"), and no ruling on any
of the issues discussed below will be sought from the IRS.
This information is directed to prospective purchasers who purchase Notes
in the initial distribution thereof, who are citizens or residents of the
United States, including domestic corporations and partnerships, and who hold
the Notes as "capital assets" within the meaning of Section 1221 of the Code.
Taxpayers and preparers of tax returns (including those filed by any
partnership or other Company) should be aware that under applicable Treasury
regulations a provider of advice on specific issues of law is not considered
an income tax return preparer unless the advice is (i) given with respect to
events that have occurred at the time the advice is rendered and is not given
with respect to the consequences of contemplated actions, and (ii) is directly
relevant to the determination of an entry on a tax return. Accordingly,
taxpayers should consult their own tax advisors and tax return preparers
regarding the preparation of any item on a tax return, even where the
anticipated tax treatment has been discussed herein. PROSPECTIVE INVESTORS
SHOULD CONSULT WITH THEIR OWN TAX ADVISORS AS TO THE STATE, LOCAL AND FOREIGN
TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF NOTES.
The following discussion is based in part upon the rules governing
original issue discount ("OID") that are set forth in Section 1271-1275 of the
Code and in proposed Treasury regulations issued under the OID provisions of
the Code (the "Proposed OID Regulations"). The Proposed OID Regulations are
subject to change through the adoption of final regulations.
CHARACTERIZATION AS DEBT
Based on the terms of the Notes and the transactions relating to the
loans as set forth herein, Tax Counsel is of the opinion that the Notes will
be treated as debt for federal income tax purposes. There is, however, no
specific authority with respect to the characterization for federal income tax
purposes of securities having the same terms as the Notes.
TREATMENT OF STATED INTEREST
The stated interest on the Notes will be taxable to a Noteholder as
ordinary income when received or accrued in accordance with such Noteholder's
method of tax accounting. It is not anticipated that the Notes will be issued
with OID. A holder who purchases a Note after the initial sale thereof at a
discount that exceeds a statutorily defined de minimis amount will be subject
to the "market discount" rules of the Code, and a holder who purchases a Note
at a premium will be subject to the premium amortization rules of the Code.
If any Notes were treated as being issued with OID, a Noteholder would be
required to include OID in income as interest over the term of the Notes under
a constant yield method. In general, OID must be included in income in
advance of the receipt of cash representing that income. Thus, each cash
distribution would be treated as an amount already included in income (to the
extent OID has accrued as of the date of the interest distribution and is not
allocated to prior distributions), or as a repayment of principal. This
treatment would have no significant effect on Noteholders using the accrual
method of accounting. Thus, if any Notes are treated as being issued with
OID, cash method Noteholders may be required to report income with respect to
the Notes in advance of the receipt of cash attributable to such income. Tax
Counsel is of the opinion that the Notes will not be treated as being issued
with OID.
DISPOSITION OF NOTES
If a Noteholder sells a Note, the holder will recognize gain or loss in
an amount equal to the difference between the amount realized on the sale and
the holder's adjusted tax basis in the Note. The adjusted tax basis of a Note
to a particular Noteholder will equal the holder's cost for the Note,
increased by any OID, market discount and gain previously included by such
Noteholder in income with respect to the Note and decreased by the amount of
Note premium (if any) previously amortized and by the amount of principal
payments previously received by such Noteholder with respect to such Note.
Subject to the market discount rules of the Code, any such gain or loss will
be capital gain or loss if the Note was held as a capital asset. Capital
losses generally may be used only to offset capital gains.
INFORMATION REPORTING AND BACKUP WITHHOLDING
The Company will be required to report annually to the IRS, and to each
Noteholder of record, the amount of interest paid on the Notes (and the amount
of interest withheld for federal income taxes, if any) for each calendar year,
except as to exempt holders (generally, holders that are corporations,
tax-exempt organizations, qualified pension and profit-sharing trusts,
individual retirement accounts, or nonresident aliens who provide
certification as to their status as nonresidents). Accordingly, each holder
(other than exempt holders who are not subject to the reporting requirements)
will be required to provide, under penalties of perjury, a certificate
containing the holders name, address, correct federal taxpayer identification
number and a statement that the holder is not subject to backup withholding.
Should a nonexempt Noteholder fail to provide the required certification, the
Company will be required to withhold 31 percent of the amount otherwise
payable to the holder, and remit the withheld amount to the IRS as a credit
against the holder's federal income tax liability.
TAX CONSEQUENCES TO FOREIGN NOTEHOLDERS
If interest paid (or accrued) to a Noteholder who is a nonresident alien,
foreign corporation or other non-United States person (a "foreign person") is
not effectively connected with the conduct of a trade or business within the
United States by the foreign person, the interest generally will be considered
"portfolio interest," and generally will not be subject to United States
federal income tax and withholding tax, if the foreign person (i) is not
actually or constructively a "10 percent shareholder" of the Company or a
"controlled foreign corporation" with respect to which the Company is a
"related person" within the meaning of the Code and (ii) provides an
appropriate statement, signed under penalties of perjury, certifying that the
beneficial owner of the Note is a foreign person and providing the foreign
person's name and address. If the information provided in the statement
changes, the foreign person must so inform the Company within 30 days of such
change. The statement generally must be provided in the year a payment occurs
or in either of the two preceding years. If such interest is not portfolio
interest, then it will be subject to United States federal income and
withholding tax at a rate of 31 percent, unless reduced or eliminated pursuant
to an applicable tax treaty.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a foreign person will be exempt from United
States federal income and withholding tax, provided that (i) the gain is not
effectively connected with the conduct of a trade or business in the United
States by the foreign person and (ii) in the case of an individual foreign
person, the foreign person is not present in the United States for 183 days or
more in the taxable year.
If the interest, gain or income on a Note held by a foreign person is
effectively connected with the conduct of a trade or business in the United
States by the foreign person (although exempt from the withholding tax
previously discussed if the holder provides an appropriate statement), the
holder generally will be subject to United States federal income tax on the
interest, gain or income at regular federal income tax rates. In addition, if
the foreign person is a foreign corporation, it may be subject to a branch
profits tax equal to 30 percent of its "effectively connected earnings and
profits" within the meaning of the Code for the taxable year, as adjusted for
certain items, unless it qualifies for a lower rate under an applicable tax
treaty.
POSSIBLE ADVERSE CONSEQUENCES
If, contrary to this opinion of Tax Counsel, the IRS successfully
asserted that the Notes were not debt for federal income tax purposes, the
Notes might be treated as equity interests in the Company. If so, the Company
might be taxable as a corporation with the adverse consequences described
above (and the taxable corporation would not be able to deduct interest on the
Notes). Alternatively, and most likely in the view of Tax Counsel, the
Company might be a publicly traded partnership that would not be taxable as a
corporation because it would meet certain qualifying income tests.
Nonetheless, treatment of the Notes as equity interests in such a partnership
could have adverse tax consequences to certain holders, For example, income to
certain tax exempt entities (including pension funds) would be "unrelated
business taxable income", income to foreign holders generally might be subject
to tax and withholding requirements, and individual holders might be subject
to certain limitations on their ability to deduct their share of the Company
expenses.
CERTAIN STATE TAX CONSEQUENCES
Because each state's income tax laws vary, it is impossible to predict
the income tax consequences to the holders of Notes in all of the state taxing
jurisdictions in which they are already subject to tax. Noteholders are urged
to consult their own tax advisors with respect to state income and corporate
franchise tax consequences arising out of the purchase, ownership and
disposition of Notes.
ERISA CONSIDERATIONS"ERISACONSIDERATIONS"
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Code prohibit a pension,
profit-sharing or other employee benefit plan, including an individual
retirement accounts and certain types of Keogh Plans (each a "Benefit Plan")
from engaging in certain transactions with persons that are "parties in
interest" under ERISA or "disqualified persons" under the Code with respect to
such Benefit Plan. A violation of these "prohibited transaction" rules may
result in an excise tax or other penalties and liabilities under ERISA and the
Code for such persons.
Certain transactions involving the purchase of Notes might be deemed to
constitute prohibited transactions under ERISA and the Code if assets of the
Company were deemed to be assets of a Benefit Plan. Under a regulation issued
by the United States Department of Labor (the "Plan Assets Regulation"), the
assets of the Company would be treated as plan assets of a Benefit Plan for
the purposes of ERISA and the Code only if the Benefit Plan acquires an
"Equity Interest" in the Company and none of the exceptions contained in the
Plan Assets Regulation is applicable. An equity interest is defined under the
Plan Assets Regulation as an interest other than an instrument which is
treated as indebtedness under applicable local law and which has no
substantial equity features.
Although there is little guidance on the subject, the Company believes
that the Notes should be treated as indebtedness without substantial equity
features for purposes of the Plan Assets Regulation. However, without regard
to whether Notes are treated as equity interest for such purpose the
acquisition or holding of Notes by or on behalf of a Benefit Plan could be
considered to give rise to a prohibited transaction if the Company or any of
its Affiliates is or becomes a party in interest or a disqualified person with
respect to such Benefit Plan. In such case, certain exemptions from the
prohibited transaction rules could be applicable depending on the type and
circumstances of the plan fiduciary making the decision to acquire a Note.
Included among these exemptions are: Prohibited Transaction Class Exemption
("PTCE") 90-1, regarding investments by insurance company pooled separate
accounts; PTCE 91-38 regarding investments by bank collective investment
funds; and PTCE 84-14, regarding transactions effected by "qualified
professional asset managers.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of
ERISA) are not subject to ERISA requirements.
A plan fiduciary considering the purchase of Notes should consult its tax
and/or legal advisors regarding whether the assets of the Company would be
considered plan assets, the possibility of exemptive relief from the
prohibited transaction rules and other issues and their potential
consequences.
PLAN OF DISTRIBUTION"PLANOFDISTRIBUTION"
It is presently anticipated that the Company will initially sell Notes
only through its employees without engaging the services of a broker-dealer.
The Company will make such sales in compliance with the Securities Exchange
Act of 1934 Rule 3a4-1(a)(1),(2),(3) and (4) and either 3a4-1(a)(4)(i),(ii) or
(iii). The Company intends to solicit purchasers of Notes by appropriate
newspaper advertising in selected markets based upon population demographics
that reflect a need for fixed income investments. Employees of the Company
may not solicit orders for sale of Notes from residents of states which
require state broker licensing for the sale of Notes.
The Company will likely choose in the future to employ the services of
one or more NASD member broker-dealers for purposes of offering the Notes.
The broker-dealers will be selected by direct personal contact based upon
their number of registered representatives and access to financial products
comparable to the Notes offered by the Company. Management believes that it
will fill a need for broker-dealers identified by its selection process
because each have a few clients for whom the Notes are suitable investments
and do not otherwise have the ability to participate in a similar primary
offering.
It has been estimated by management that, if the services of a
broker-dealer are utilized to sell the Notes, the Company would pay to such
broker-dealer a commission in the range of .5% to 6% of the selling price of
Notes actually sold. It is also likely that, if the services of a
broker-dealer are utilized, the Company would agree to reimburse such entity
for its costs and expenses, up to a maximum of 1% of the selling price of
Notes actually sold. In addition, the Company may agree to indemnify any
broker or dealer utilized by the Company in connection with the offering of
Notes against liabilities, including liabilities under the Securities Act of
1933, as amended.
The Company reserves the right to reject any subscription hereunder, in
whole or in part, for any reason. Subscriptions will be irrevocable upon
receipt by the Company, the proceeds of such subscription will be promptly
refunded to the subscriber, without deduction of any costs and without
interest. The Company expects that rejected subscriptions will be refunded
within 48 hours after the Company has received the subscription. Once a
subscriber's subscription has been accepted by the Company, the applicable
subscription funds will be promptly deposited for benefit of the Company. A
Note will be sent to the subscriber as soon as practicable thereafter. No
minimum number of Notes must be sold in the offering. A subscriber will not
know at the time of subscription whether the Company will be successful in
completing the sale of any or all of the Notes. The Company has the right to
withdraw or cancel of this offering at anytime. In the event of such
withdrawal or cancellation, subscriptions previously received will be
irrevocable and no subscription funds will be refunded.
VALIDITY OF THE NOTES"VALIDITYOFTHENOTES"
The validity of the Notes being offered hereby have been passed upon for
the Company by Sonfield & Sonfield, 770 South Post Oak Lane, Houston, Texas
77056-1913.
EXPERTS"EXPERTS"
Certain of the Financial Statements of First Nations Financial Services
Company included in this Prospectus, have been examined by Harper & Pearson
Company, independent certified public accountants, as set forth in their
report appearing herein and have been included in reliance upon such report
and upon the authority of such firm as experts in accounting and auditing.
F - 2
C ON T E N T S"INDEXTOBALANCESHEET"
Page
-------
Independent auditors report F - 2
Balance Sheet F - 3
Statement of Operation F - 4
Statement of Shareholder's Equity F - 5
Statement of Cash Flow F - 6
Notes to Financial Statement F - 7-9
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
First Nations Financial Services Company
Mount Laurel, New Jersey
We have audited the accompanying balance sheet of First Nations Financial
Services Company (a development stage company) as of October 8, 1996, and the
related statements of operations, changes in shareholders' equity and cash
flows for the period October 16, 1995 (date of inception) through October 8,
1996. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of First Nations Financial
Services Company at October 8, 1996, and the results of its operations and its
cash flows for the period then ended in conformity with generally accepted
accounting principles.
As more fully discussed in the notes to the financial statements, the Company
has significant transactions with a shareholder and related interests.
Houston, Texas
October 18, 1996, except for Note F, as to
which the date is February 14, 1997
F - 9
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
OCTOBER 8, 1996
ASSETS
------
CURRENT ASSETS
Cash $1,001,930
-----------
TOTAL CURRENT ASSETS 1,001,930
-----------
COMPUTER EQUIPMENT 1,990
-----------
OTHER ASSETS
Trademarks 217
Organization costs 107,923
-----------
108,140
-----------
$1,112,060
===========
LIABILITIES AND SHAREHOLDERS' EQUITY
- ---------------------------------------------------------
CURRENT LIABILITIES
Note payable, shareholder $ 87,503
Interest payable, shareholder 10,000
-----------
TOTAL CURRENT LIABILITIES 97,503
-----------
COMMITMENT
SHAREHOLDERS' EQUITY
6% Series A, cumulative, nonvoting, preferred shares,
$.001 par value, 1,000 shares authorized, issued
and outstanding; liquidation preference of $1,000,000 1
Common stock, $.001 par value, 2,000 shares authorized,
and 1,000 shares issued and outstanding 1
Additional paid-in capital 1,049,998
Deficit accumulated during the development stage (35,443)
-----------
1,014,557
-----------
$1,112,060
===========
See accompanying notes.
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
OCTOBER 16, 1995 (DATE OF INCEPTION) THROUGH OCTOBER 8, 1996
INTEREST INCOME, RELATED PARTY $ 70,000
-----------
EXPENSES
Accounting fees 300
Bank charges 409
Interest expense 10,000
Legal fees 469
Office supplies and expenses 760
Postage 1,828
Printing 235
Professional fees 307
Rent, related party 90,000
Telephone expense 58
Travel expense 1,077
-----------
105,443
-----------
NET LOSS $ (35,443)
==========
LOSS PER COMMON SHARE $ (35.44)
===========
SHARES USED IN COMPUTING LOSS PER COMMON SHARE 1,000
===========
See accompanying notes.
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
OCTOBER 16, 1995 (DATE OF INCEPTION) THROUGH OCTOBER 8, 1996
Additional
Preferred Common Paid-In Retained
Stock Stock Capital (Deficit) Total
---------- --------- ----------- ---------- -----------
Sale of Stock $ 1 $ 1 $ 1,049,998 $ -0- $1,050,000
Net Loss -0- -0- -0- (35,443) (35,443)
---------- --------- ----------- ---------- -----------
Balance -
October 8, 1996 $ 1 $ 1 $ 1,049,998 $ (35,443) $1,014,557
========== ========= =========== ========== ===========
See accompanying notes.
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
OCTOBER 16, 1995 (DATE OF INCEPTION) THROUGH OCTOBER 8, 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (35,443)
-----------
Adjustments to reconcile net loss to net
cash used by operating activities:
Change in operating assets and liabilities:
Interest payable, related party 10,000
-----------
Total Adjustments 10,000
-----------
Net Cash Used by Operating Activities (25,443)
-----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of computer equipment (1,990)
Payments for organization costs (107,923)
Payments for trademark (217)
Proceeds from issuance of stock 50,000
Sale of mortgage note receivable, related party 1,000,000
-----------
Net Cash Provided by Investing Activities 939,870
-----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Note payable, shareholder 87,503
-----------
Net Cash Provided by Financing Activities 87,503
-----------
NET INCREASE IN CASH 1,001,930
CASH AT BEGINNING OF PERIOD -0-
-----------
CASH AT END OF PERIOD $1,001,930
===========
NONCASH INVESTING ACTIVITY:
Note receivable obtained from related party
for paid-in capital $1,000,000
===========
See accompanying notes.
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 8, 1996
NOTE A BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES
Nature of Operations - First Nations Financial Services Company (the Company)
- ---------------------
is a newly organized Delaware corporation with its principal executive offices
located at Plaza Office Center, 560 Fellowship Road, Mount Laurel, New Jersey
08054.
The Company's objective is to become a significant participant in the
financial services industry. The Company believes that its growth will be
sustained by its commitment to servicing a segment of the market which is not
adequately serviced by commercial banks. The Company has only recently
completed its initial capitalization and commenced operations. Because the
Company has only limited equity capital with which to operate, there are no
assurances that the Company will be successful unless the offer to sell a
significant amount of the $50,000,000 in subordinated debt is successful.
Estimates - The preparation of financial statements in conformity with
- ---------
generally accepted accounting principles requires management to make estimates
- -------
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Management estimates that the administrative costs to complete the offering
(discussed in the previous paragraph) are approximately $30,000. This amount
does not include any fees, commissions, or other costs associated with the
sale of the subordinated debt.
Fair Value of Financial Instruments - Management is of the opinion that the
- --------------------------------------
carrying value of all financial instruments is substantially equal to fair
- --
value at October 8, 1996.
- --
Cash - At October 8, 1996, the Company had on deposit with a financial
- ----
institution, cash totaling approximately $902,000 in excess of FDIC insurance
- ----
limits.
Computer Equipment - Computer equipment is stated at cost. Depreciation is
- -------------------
calculated considering the estimated useful lives of the respective assets on
- --
the straight-line method. Computer equipment is being depreciated over a
three year period. No depreciation was recorded during the period ended
October 8, 1996, as it would not be significant.
Expenditures for additions are capitalized and expenditures for maintenance
and repairs are charged to earnings as incurred.
When properties are retired or otherwise disposed of, the cost thereof and the
applicable accumulated depreciation and amortization are removed from the
respective accounts and the resulting gain or loss is reflected in earnings.
Continued
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 8, 1996
NOTE A BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES (CONTINUED)
Organization Costs - Organization costs include filing fees with the
- -------------------
Securities and Exchange Commission ($17,241), the National Association of
- ---------
Securities Dealers, Inc. ($5,500), Blue Sky registration fees in several
- ----
states ($14,671), legal ($55,027), accounting ($10,549) and other costs
- ----
($4,935) associated with the organization of the Company.
- ----
Of these costs, approximately $71,000 will be charged against the proceeds, if
any, of the subordinated debt discussed in Note E. Remaining capitalized
costs will be amortized over a five year period.
Income Taxes - For the period ended October 8, 1996, the Company incurred a
- -------------
net operating loss amounting to $35,443. This net operating loss carryforward
- --
will expire in the year 2011, if not previously utilized.
No tax benefit for the loss carryforward has been reported in the financial
statements. Accordingly, the tax benefit of approximately $12,000 resulting
from the utilization of the loss carryforward has been offset by a valuation
allowance of the same amount.
Statement of Cash Flows - For purposes of reporting cash flows, cash and cash
- ------------------------
equivalents includes only cash on hand and in demand deposit accounts with a
bank.
Loss Per Common Share - Loss per common share is computed using the weighted
- -----------------------
average number of shares of common stock outstanding during the period.
NOTE B MORTGAGE NOTE RECEIVABLE, RELATED PARTY
The 12% $1,000,000 mortgage note receivable assigned to the Company by Mr.
William T. Juliano in exchange for 1,000 shares of preferred stock was
receivable from Plaza Investment Corporation (Plaza), a New Jersey corporation
and was payable to Mr. William T. Juliano. Mr. Juliano is an officer and
stockholder of both the Company and Plaza. Mr. Juliano acquired the mortgage
note during December 1992 in exchange for $1,000,000 cash advanced to the then
unrelated company, Plaza.
On October 8, 1996, the Company sold for $1,000,000 cash the $1,000,000 note
receivable from Plaza Investment Corporation to Mr. Juliano.
NOTE C NOTE PAYABLE, SHAREHOLDER
Note payable, shareholder amounting to $87,503 plus accrued interest of
$10,000 was fully paid on October 9, 1996.
FIRST NATIONS FINANCIAL SERVICES COMPANY
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 8, 1996
NOTE D LEASE COMMITMENT, RELATED PARTY
The Company presently leases, from a company owned by Mr. William T. Juliano,
office space for its executive offices as well as furniture, fixtures and
equipment at 560 Fellowship Road, Mount Laurel, New Jersey 08054. Effective
October 1, 1996, the lease commitment was renegotiated for a period commencing
on that date and expiring January 31, 1998 at a minimum annual rental of
$60,000. This agreement is not the result of arm's length negotiation. The
aggregate lease commitment for the remaining lease term is approximately
$80,000.
NOTE E SUBORDINATED DEBT
The Company intends to offer for sale up to $50,000,000 in unsecured senior
subordinated notes with varying interest rates on a best-efforts basis with
maturities ranging from three months to ten years. The notes may be extended,
at the option of the Company, for a term equal to the original term unless the
holder requests repayment within seven days prior to the original maturity
date. There is no minimum amount of the notes which must be sold. The
Company will pay commissions of up to 6% of the principal amount of each note
sold plus any out-of-pocket expenses incurred in connection with the offer and
sale of the notes.
The net proceeds from the sale of the notes will be utilized by the Company
for its general corporate purposes. Corporate general purposes may include
financing of future growth, origination or acquisition of a business loan
portfolio, origination or acquisition of loans secured by equipment, such as
automobiles, trucks, golf carts, boats and other vehicles; origination or
acquisition of a portfolio of home equity loans as well as other finance
related activities; and possible future acquisition of related businesses or
assets. The precise amounts and timing of the application of such proceeds
will depend upon many factors, including, but not limited to, the amount of
any such proceeds, actual funding requirements and the availability of other
sources of funding. Until such time as the proceeds are utilized, they may be
invested in short and long-term investments, including treasury bills,
commercial paper, certificates of deposit, securities issued by U.S.
government agencies, money market funds and repurchase agreements, depending
on the Company's cash flow requirements. The Company's investment policies
permit significant flexibility as to the types of such investments that may be
made by the Company. The Company may also maintain daily unsettled balances
with certain broker-dealers. While the Company may from time to time consider
potential acquisitions, the Company as of the date of this report had no
commitments or agreements with respect to any material acquisitions.
NOTE F SUBSEQUENT EVENTS
Effective the 13th day of February, 1997 the Company canceled its lease with a
company owned by Mr. William T. Juliano covering office space for its
executive offices as well as furniture, fixtures and equipment at 560
Fellowship Road, Mt. Laurel, New Jersey 08054. Effective on the same date Mr.
Juliano agreed to provide office space, furniture, fixtures and equipment for
the Company's executive offices at 2150 North Ocean Blvd., Boca Raton, Florida
33431 for 12 months without cost to the Company.
Effective the 12th day of February, 1997 the Company adopted October 8th as
its fiscal year end for financial reporting purposes.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION
NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE IN CONNECTION HEREWITH SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS, EVEN WHEN ACCOMPANIED BY AN APPROPRIATE PROSPECTUS SUPPLEMENT,
DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF ANY OFFER TO BUY THE
NOTES BY ANYONE IN ANY JURISDICTIONS IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION OF
ANY OFFER TO BUY THE NOTES IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM
IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION.
__________________________
TABLE OF CONTENTS
PAGE
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AVAILABLE INFORMATION
SUMMARY OF THE OFFERING
HIGHLIGHTS OF TERMS OF NOTES
RISK FACTORS
USE OF PROCEEDS
DESCRIPTION OF THE NOTES AND THE
INDENTURE
BUSINESS OF THE COMPANY
MANAGEMENT'S PLAN OF OPERATION
MANAGEMENT
BENEFICIAL OWNERSHIP OF SECURITIES
CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS
MARKET FOR COMMON EQUITY
MATERIAL INCOME TAX CONSEQUENCES
ERISA CONSIDERATIONS
PLAN OF DISTRIBUTION
VALIDITY OF THE NOTES
EXPERTS
INDEX TO BALANCE SHEET F -
$50,000,000
FIRST NATIONS FINANCIAL SERVICES COMPANY
SENIOR SUBORDINATED, FIXED RATE TERM NOTES
PROSPECTUS
APRIL 22, 1997