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As filed with the Securities and Exchange Commission on August 19, 2015

Securities Act File No. 333-204915

 

U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



 

FORM N-2



 

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 x
(Check appropriate box or boxes)
Pre-Effective Amendment No. 2
Post-Effective Amendment No.  



 

NEWTEK BUSINESS SERVICES CORP.

(Exact name of Registrant as specified in charter)



 

212 West 35th Street, 2nd Floor
New York, NY 10001

(Address of Principal Executive Offices)



 

Registrant’s telephone number, including Area Code: (212) 356-9500
Barry Sloane
Chief Executive Officer and President
Newtek Business Services Corp.
212 West 35th Street, 2nd Floor
New York, NY 10001

(Name and address of agent for service)



 

COPIES TO:
Steven B. Boehm
Cynthia M. Krus
Sutherland Asbill & Brennan LLP
700 Sixth Street NW, Suite 700
Washington, DC 20001
(202) 383-0100
Fax: (202) 637-3593



 

Approximate date of proposed public offering: From time to time after the effective date of this Registration Statement.

If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x

It is proposed that this filing will become effective (check appropriate box):

o when declared effective pursuant to section 8(c).



 

CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933

       
Title of Securities Being Registered   Amount Being
Registered		   Proposed
Maximum
Offering Price
Per Note		   Proposed
Maximum
Aggregate
Offering Price(1)		   Amount of
Registration Fee(1)(7)
Common Stock, $0.02 par value per share(2)(3)                                    
Preferred Stock, $0.02 par value per share(2)                                    
Subscription Rights(2)                                    
Warrants(4)                                    
Debt Securities(5)                              
Total               $ 300,000,000 (6)    $ 34,860  

(1) Estimated pursuant to Rule 457(o) under the Securities Act of 1933 solely for the purpose of determining the registration fee. The proposed maximum offering price per security will be determined, from time to time, by Newtek Business Services Corp. (the “Registrant”) in connection with the sale of the securities registered under this Registration Statement.
(2) Subject to note 6 below, there is being registered hereunder an indeterminate number of shares of common stock or preferred stock, or subscription rights to purchase shares of the Registrant’s common stock as may be sold, from time to time.
(3) Includes such indeterminate number of shares of the Registrant’s common stock as may, from time to time, be issued upon conversion or exchange of other securities registered hereunder, to the extent any such securities are, by their terms, convertible or exchangeable for common stock.
(4) Subject to note 6 below, there is being registered hereunder an indeterminate number of the Registrant’s warrants as may be sold, from time to time, representing rights to purchase common stock, preferred stock or debt securities of the Registrant.
(5) Subject to note 6 below, there is being registered hereunder an indeterminate number of debt securities of the Registrant as may be sold, from time to time. If any debt securities of the Registrant are issued at an original issue discount, then the offering price shall be in such greater principal amount as shall result in an aggregate price to investors not to exceed $300,000,000.
(6) In no event will the aggregate offering price of all securities issued from time to time pursuant to this Registration Statement exceed $300,000,000.
(7) Previously paid.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 
 

EXPLANATORY NOTE

This Pre-Effective Amendment No. 2 to the Registration Statement on Form N-2 (File No. 333-204915) of Newtek Business Services Corp. (the “Registration Statement”) is being filed solely for the purpose of filing an exhibit to the Registration Statement. Accordingly, this Pre-Effective Amendment No. 2 consists only of a facing page, this explanatory note and Part C of the Registration Statement on Form N-2 setting forth the exhibits to the Registration Statement. This Pre-Effective Amendment No. 2 does not modify any other part of the Registration Statement. The contents of the Registration Statement are hereby incorporated by reference.

 
 

PART C — OTHER INFORMATION

ITEM 25. FINANCIAL STATEMENTS AND EXHIBITS

1. Financial Statements

The following financial statements of Newtek Business Services Corp. are included in Part A “Information Required to be in the Prospectus” of the Registration Statement.

NEWTEK BUSINESS SERVICES CORP AND SUBSIDIARIES
 
INDEX TO FINANCIAL STATEMENTS
 
Table of Contents

 
  PAGE NO.
Condensed Consolidated Statements of Assets and Liabilities as of June 30, 2015 (Unaudited) and December 31, 2014     F-2  
Condensed Consolidated Statements of Operations (Unaudited) for the three and six months ended June 30, 2015 and 2014     F-3  
Condensed Consolidated Statement of Changes in Net Assets (Unaudited) for the six months ended June 30, 2015     F-5  
Condensed Consolidated Statements of Cash Flows (Unaudited) for the six months ended June 30, 2015 and 2014     F-6  
Consolidated Schedule of Investments as of June 30, 2015 (Unaudited) and December 31, 2014     F-8  
Notes to Condensed Consolidated Financial Statements (Unaudited)     F-72  
Reports of Independent Registered Public Accounting Firms     F-91  
Consolidated Balance Sheets as of December 31, 2014 and 2013     F-93  
Consolidated Statements of Income for the period from November 12, 2014 to December 31, 2014, the period from January 1, 2014 to November 11, 2014, and the years ended December 31, 2013 and 2012     F-95  
Consolidated Statements of Changes in Net Assets for the period from November 12, 2014 to December 31, 2014 and Consolidated Statements of Changes in Stockholders’ Equity for the period from January 1, 2014 to November 11, 2014 and the years ended December 31, 2013 and 2012     F-97  
Consolidated Statements of Cash Flows for the period from November 12, 2014 to December 31, 2014 and the period January 1, 2014 to November 11, 2014 and the years ended December 31, 2013 and 2012     F-98  
Consolidated Schedule of Investments as of December 31, 2014     F-101  
Notes to Consolidated Financial Statements     F-133  

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2. Exhibits

 
Exhibit Number   Description
a.      Amended and Restated Articles of Incorporation of Newtek Business Services Corp. (Incorporated by reference to Exhibit A to Newtek’s Pre-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
b.      Bylaws of Newtek Business Services Corp. (Incorporated by reference to Exhibit 2 to Newtek’s Registration Statement on Form N-14, No. 333-195998, filed September 24, 2014).
c.      Not applicable.
d.1     Form of Common Stock Certificate (Incorporated by reference to Exhibit 5 to Newtek’s Registration Statement on Form N-14, No. 333-195998, filed September 24, 2014).
d.2     Form of Base Indenture (Incorporated by reference to Exhibit D.2 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
d.3     Form of Global Note.
d.4     Statement of Eligibility of Trustee on Form T-1 (Filed herewith).
e.      Form of Dividend Reinvestment Plan (Incorporated by reference to Exhibit E to Newtek’s Pre-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
f.1     Lease and Master Services Agreement dated March 15, 2007 between CrystalTech Web Hosting, Inc. and i/o Data Centers (Incorporated by reference to Exhibit 10.4 to Newtek’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2007, filed May 15, 2007).
f.2.1   Guaranty of Payment and Performance, dated as of April 30, 2010, between Newtek Business Services, Inc. and Capital One Bank, N.A. (Incorporated by reference herein to Exhibit 10.16.2 to Newtek’s Current Report on Form 8-K, filed May 4, 2010).
f.3.1   Loan and Security Agreement, dated as of December 15, 2010, between Newtek Small Business Finance, Inc. and Capital One Bank, N.A. (Incorporated by reference herein to Exhibit 10.18.1 to Newtek’s Current Report on Form 8-K, filed December 20, 2010, as amended on March 2, 2011).
f.3.2   Guaranty Agreement, dated as of December 15, 2010, between Newtek Business Services, Inc. and Capital One Bank, N.A. (Incorporated by reference herein to Exhibit 10.18.2 to Newtek’s Current Report on Form 8-K, filed December 20, 2010, as amended on March 2, 2011).
f.3.3   Amended and Restated Loan and Security Agreement, dated as of June 16, 2011, by and between Newtek Small Business Finance, Inc. and Capital One, N.A. (Incorporated by reference herein to Exhibit 10.8.3 to Newtek’s Current Report on Form 8-K, filed June 21, 2011).
f.3.4   Amended and Restated Guaranty of Payment and Performance, dated as of June 16, 2011, by and between Newtek Business Services, Inc., and Capital One, N.A. (Incorporated by reference herein to Exhibit 10.8.4 to Newtek’s Current Report on Form 8-K, filed June 21, 2011).
f.3.5   Amendment to Loan Documents, dated October 6, 2011, by and among Newtek Small Business Finance, Inc., Capital One Bank, N.A. and each of the guarantors listed on the signature pages thereto (Incorporated by reference herein to Exhibit 10.8.5 to Newtek’s Current Report on Form 8-K, filed October 11, 2011).
f.3.6   Amended and Restated Loan and Security Agreement, dated as of July 16, 2013, by and between Newtek Small Business Finance, Inc. and Capital One, National Association (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed July 19, 2013).
f.3.7   Guaranty and Security Agreement Letter Amendment, dated as of July 16, 2013, by and between Capital One, National Association and Newtek Business Services, Inc. (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed July 19, 2013).

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Exhibit Number   Description
f.3.8   Amended and Restated Loan and Security Agreement, dated as of October 29, 2014, by and between Newtek Small Business Finance, Inc. and Capital One, National Association (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed October 30, 2014).
f.3.9   Guaranty and Security Agreement Letter Agreement, dated as of October 29, 2014, by and between Capital One, National Association and Newtek Business Services, Inc. (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed October 30, 2014).
 f.3.10   First Amendment, dated as of June 18, 2015, to the Amended and Restated Loan and Security Agreement dated as of October 29, 2014, by and between Newtek Small Business Finance, LLC (successor-in-interest by merger to Newtek Small Business Finance, Inc.), Capital One, National Association and Newtek Business Services Corp. (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed June 24, 2015).
 f.3.11   Amended and Restated Guaranty of Payment and Performance, dated as of June 18, 2015, by Newtek Business Services Corp. (successor-in-interest to Newtek Business Services, Inc.) in favor of Capital One, National Association (Incorporated by reference herein to Exhibit 10.2 to Newtek’s Current Report on Form 8-K, filed June 24, 2015).
f.4.1   Newtek Small Business Loan Trust Class A Notes, dated December 22, 2010 (Incorporated by reference herein to Exhibit 10.19.1 to Newtek’s Current Report on Form 8-K, filed December 23, 2010).
f.4.2   Amended Newtek Small Business Loan Trust Class A Notes, dated December 29, 2011 (Incorporated by reference herein to Exhibit 10.19.2 to Newtek’s Current Report on Form 8-K, filed January 5, 2012).
f.4.3   Additional Newtek Small Business Loan Trust Class A Notes, dated December 29, 2011 (Incorporated by reference herein to Exhibit 10.19.3 to Newtek’s Current Report on Form 8-K, filed January 5, 2012).
f.5.1   Loan and Security Agreement, dated as of February 28, 2011, by and between CDS Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.10.1 to Newtek’s Current Report on Form 8-K, filed March 3, 2011).
f.5.2   Guaranty, dated as of February 28, 2011, by and between Newtek Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.10.2 to Newtek’s Current Report on Form 8-K, filed March 3, 2011).
f.5.3   Amendment No. 1, dated December 5, 2012, to Loan and Security Agreement, dated as of February 28, 2011, by and between CDS Business Services, Inc. and Sterling National Bank (Incorporated by reference herein to Exhibit 10.9.3 to Newtek’s Current Report on Form 8-K, filed December 11, 2012).
f.6     Credit Agreement by and between Newtek Business Services, Inc. and Capital One, National Association, dated as of June 26, 2014 (Incorporated by reference to Exhibit 10.1 to Newtek’s Current Report on Form 8-K filed July 1, 2014).
f.7     Credit and Guaranty Agreement, dated as of June 23, 2015, by and between Universal Processing Services of Wisconsin LLC, CrystalTech Web Hosting, Inc., as borrowers, Goldman Sachs Bank USA, as Administrative Agent, Collateral Agent and Lead Arranger, various lenders, and Newtek Business Services Corp., Newtek Business Services Holdco 1, Inc. and certain subsidiaries of Newtek Business Services Holdco 1, Inc., as guarantors (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed June 25, 2015).
g.      Not Applicable.
h.1     Form of Equity Underwriting Agreement (Incorporated by reference to Exhibit H.1 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).

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Exhibit Number   Description
h.2     Form of Debt Underwriting Agreement.
i.      Newtek Business Services Corp. 2014 Stock Incentive Plan (Incorporated by reference herein to Exhibit 8.6 to Newtek’s Registration Statement on Form N-14, No. 333-195998, filed September 24, 2014).
j.      Form of Custodian Agreement (Incorporated by reference to Exhibit J to Newtek’s Pre-Effective Amendment No. 3 to its Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
k.1     Employment Agreement with Barry Sloane, dated March 31, 2015, (Incorporated by reference to Exhibit 10.5 to Newtek’s Current Report on Form 8-K filed April 16, 2015).
k.2     Employment Agreement with Craig J. Brunet, dated March 31, 2015 (Incorporated by reference to Exhibit 10.1 to Newtek’s Current Report on Form 8-K filed April 16, 2015).
k.3     Employment Agreement with Jennifer Eddelson, dated March 31, 2015 (Incorporated by reference to Exhibit 10.2 to Newtek’s Current Report on Form 8-K filed April 16, 2015).
k.4     Employment Agreement with Michael A. Schwartz, dated March 31, 2015, (Incorporated by reference to Exhibit 10.3 to Newtek’s Current Report on Form 8-K filed April 16, 2015).
k.5     Employment Agreement with Matthew G. Ash, dated March 31, 2015, (Incorporated by reference to Exhibit 10.4 to Newtek’s Current Report on Form 8-K filed April 16, 2015).
k.6     Membership Interest Purchase Agreement, dated as of July 23, 2015, by and among Newtek Business Services Corp., Newtek Business Services Holdco 1, Inc., Premier Payments LLC and Jeffrey Rubin (Incorporated by reference herein to Exhibit 10.1 to Newtek’s Current Report on Form 8-K, filed July 29, 2015).
l.      Opinion of Sutherland Asbill & Brennan LLP (Incorporated by reference to Exhibit L to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
m.      Not applicable.
 n.1      Consent of Sutherland Asbill & Brennan LLP (Incorporated by reference to exhibit l hereto).
 n.2      Consent of Independent Registered Public Accounting Firm (Incorporated by reference to Exhibit N.2 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
 n.3      Consent of Independent Registered Public Accounting Firm (Incorporated by reference to Exhibit N.3 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
 n.4      Report of McGladrey LLP Regarding the Senior Security Table (Incorporated by reference to Exhibit N.4 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
 n.5      Report of CohnReznick LLP Regarding the Senior Security Table (Incorporated by reference to Exhibit n.5 to Newtek’s Pre-Effective Amendment No. 3 to the Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
o.      Not applicable.
p.      Not applicable.
q.      Not applicable.
r.      Code of Ethics (Incorporated by reference to Exhibit R to Newtek’s Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
99.1   Code of Business Conduct and Ethics of Registrant (Incorporated by reference to Exhibit 99.1 to Newtek’s Registration Statement on Form N-2, No. 333-191499, filed November 3, 2014).
99.2   Form of Prospectus Supplement for Common Stock Offerings (Incorporated by reference to Exhibit 99.2 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).

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Exhibit Number   Description
99.3   Form of Prospectus Supplement for Preferred Stock Offerings (Incorporated by reference to Exhibit 99.3 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
99.4   Form of Prospectus Supplement for At-the-Market Offerings (Incorporated by reference to Exhibit 99.4 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
99.5   Form of Prospectus Supplement for Rights Offerings (Incorporated by reference to Exhibit 99.5 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
99.6   Form of Prospectus Supplement for Warrants (Incorporated by reference to Exhibit 99.6 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
99.7   Form of Prospectus Supplement for Retail Note Offerings (Incorporated by reference to Exhibit 99.7 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).
99.8   Form of Prospectus Supplement for Institutional Note Offering (Incorporated by reference to Exhibit 99.8 to Newtek’s Pre-Effective Amendment No. 1 to its Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015).

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ITEM 26. MARKETING ARRANGEMENTS

The information contained under the heading “Underwriting” on this Registration Statement is incorporated herein by reference.

ITEM 27. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION

 
SEC registration fee   $ 34,860  
FINRA filing fee     45,500  
NASDAQ Capital Market     30,000  
Printing and postage     125,000  
Legal fees and expenses     150,000  
Accounting fees and expenses     150,000  
Miscellaneous     50,000  
Total   $ 585,360  

Note: All listed amounts are estimates, except for the SEC registration fee, FINRA filing fee and NASDAQ Capital Market Fee.

ITEM 28. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL

See “Management,” “Certain Relationships and Transactions,” “Portfolio Companies” and “Control Persons and Principal Stockholders” in the Prospectus contained in the Pre-Effective Amendment No. 1 to the Registration Statement on Form N-2, No. 333-204915, filed August 13, 2015.

ITEM 29. NUMBER OF HOLDERS OF SECURITIES

The following table sets forth the number of record holders of the Registrant’s common stock at August 5, 2015:

 
Title of Class   Number of
Record
Holders
Common Stock, par value $0.02 per share     151  

ITEM 30. INDEMNIFICATION

Directors and Officers

Reference is made to Section 2-418 of the Maryland General Corporation Law, Article VII of the Registrant’s charter and Article XI of the Registrant’s bylaws.

Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. The Registrant’s charter contains such a provision which eliminates directors’ and officers’ liability to the maximum extent permitted by Maryland law, subject to the requirements of the Investment Company Act of 1940, as amended (the “1940 Act”).

The Registrant’s charter authorizes the Registrant, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any present or former director or officer or any individual who, while serving as the Registrant’s director or officer and at the Registrant’s request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding. The Registrant’s bylaws obligate the Registrant, to the maximum extent permitted by Maryland law and subject to the requirements of the 1940 Act, to indemnify any present or former director or officer or any individual who, while serving as the Registrant’s director or officer and at the Registrant’s request, serves

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or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee and who is made, or threatened to be made, a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which that person may become subject or which that person may incur by reason of his or her service in any such capacity and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The charter and bylaws also permit the Registrant to indemnify and advance expenses to any person who served a predecessor of the Registrant in any of the capacities described above and any of the Registrant’s employees or agents or any employees or agents of the Registrant’s predecessor. In accordance with the 1940 Act, the Registrant will not indemnify any person for any liability to which such person would be subject by reason of such person’s willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office.

Maryland law requires a corporation (unless its charter provides otherwise, which the Registrant’s charter does not) to indemnify a director or officer who has been successful in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or threatened to be made, a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that a personal benefit was improperly received unless, in either case, a court orders indemnification, and then only for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer in advance of final disposition of a proceeding upon the corporation’s receipt of (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.

ITEM 31. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER

Not applicable.

ITEM 32. LOCATION OF ACCOUNTS AND RECORDS

All accounts, books, and other documents required to be maintained by Section 31(a) of the 1940 Act, and the rules thereunder are maintained at the offices of:

(1) the Registrant, Newtek Business Services Corp., 212 West 35th Street, 2nd Floor, New York, New York 10001;
(2) the Transfer Agent, American Stock Transfer and Trust Company, 6201 15th Avenue, Brooklyn, NY 11219; and
(3) the Custodian, U.S. Bank National Association, 615 East Michigan Street, Milwaukee, Wisconsin 53202

ITEM 33. MANAGEMENT SERVICES

Not applicable.

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ITEM 34. UNDERTAKINGS

(1) Registrant undertakes to suspend the offering of the shares covered hereby until it amends its prospectus contained herein if (a) subsequent to the effective date of this Registration Statement, its net asset value declines more than 10% from its net asset value as of the effective date of this Registration Statement, or (b) its net asset value increases to an amount greater than its net proceeds as stated in the prospectus contained herein.
(2) Not applicable.
(3) Registrant undertakes in the event that the securities being registered are to be offered to existing stockholders pursuant to warrants or rights, and any securities not taken by shareholders are to be reoffered to the public, to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by underwriters, and the terms of any subsequent underwriting thereof. Registrant further undertakes that if any public offering by the underwriters of the securities being registered is to be made on terms differing from those set forth on the cover page of the prospectus, the Registrant shall file a post-effective amendment to set forth the terms of such offering.
(4) The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement:
(i) to include any prospectus required by Section 10(a)(3)of the 1933 Act;
(ii) to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof)which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(b) That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and
(d) That, for the purpose of determining liability under the 1933 Act to any purchaser, if the Registrant is subject to Rule 430C: Each prospectus filed pursuant to Rule 497(b), (c), (d)or (e)under the 1933 Act as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the 1933 Act, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(e) That, for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration

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statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser:
(i) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act;
(ii) the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iii) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(f) To file a post-effective amendment to the registration statement, and to suspend any offers or sales pursuant the registration statement until such post-effective amendment has been declared effective under the 1933 Act, in the event the shares of the Registrant is trading below its net asset value and either (i)Registrant receives, or has been advised by its independent registered accounting firm that it will receive, an audit report reflecting substantial doubt regarding the Registrant’s ability to continue as a going concern or (ii)Registrant has concluded that a material adverse change has occurred in its financial position or results of operations that has caused the financial statements and other disclosures on the basis of which the offering would be made to be materially misleading.
(5) Not Applicable.
(6) Not Applicable.
(7) The Registrant undertakes to file a post-effective amendment to the registration statement during any period in which offers or sales of the Registrant’s securities are being made at a price below the net asset value per share of the Registrant’s common stock as of the date of the commencement of such offering and such offering will result in greater than 15% dilution to the net asset value per share of the Registrant’s common stock.

C-9

 
 

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Pre-Effective Amendment No. 2 to the Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, in the State of New York, on August 19, 2015.

NEWTEK BUSINESS SERVICES CORP.

BY: /s/ Barry Sloane

Barry Sloane
Chief Executive Officer, President and Chairman of the Board of Directors

Pursuant to the requirements of the Securities Act of 1933, as amended, this to the Registration Statement on Form N-2 has been signed by the following persons in the capacities and on the dates indicated.

   
Signature   Title   Date
/s/ Barry Sloane

Barry Sloane		   Chief Executive Officer, President and Chairman of the Board of Directors (Principal Executive Officer)   August 19, 2015
/s/ Jennifer Eddelson

Jennifer Eddelson		   Executive Vice President and Chief Accounting Officer (Principal Financial and Accounting Officer)   August 19, 2015     
*

Richard J. Salute		   Director   August 19, 2015
*

Sam Kirschner		   Director   August 19, 2015
*

Salvatore F. Mulia		   Director   August 19, 2015
*

Peter Downs		   Director   August 19, 2015
* Signed by Barry Sloane pursuant to a power of attorney signed by each individual and filed with this registration statement on June 12, 2015.

C-10

 

Exhibit d.4

 

 

 

securities and exchange commission

Washington, D.C. 20549

 

 

 

FORM T-1

 

Statement of Eligibility Under

The Trust Indenture Act of 1939 of a

Corporation Designated to Act as Trustee

Check if an Application to Determine Eligibility of

a Trustee Pursuant to Section 305(b)(2)

 

 

 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall

Minneapolis, Minnesota

   55402
(Address of principal executive offices)   (Zip Code)

 

Nick Sandell

U.S. Bank National Association

60 Livingston Avenue

St. Paul, MN 55107

(651) 466-5055

(Name, address and telephone number of agent for service)

 

NEWTEK BUSINESS SERVICES CORP.

(Issuer with respect to the Securities)

 

Maryland   46-3755188
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)

 

212 West 35th Street, 2nd Floor

New York, NY

   10007
(Address of Principal Executive Offices)   (Zip Code)

 

Newtek Business Services Corp. Debt Securities

(Title of the Indenture Securities)

 

 

 

 

FORM T-1

 

Item 1. GENERAL INFORMATION.  Furnish the following information as to the Trustee.

 

a)Name and address of each examining or supervising authority to which it is subject.
Comptroller of the Currency
Washington, D.C.

 

b)Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2. AFFILIATIONS WITH OBLIGOR.  If the obligor is an affiliate of the Trustee, describe each such affiliation.
None

 

Items 3-15 Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16. LIST OF EXHIBITS:  List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.A copy of the Articles of Association of the Trustee.*

 

2.A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

 

4.A copy of the existing bylaws of the Trustee.**

 

5.A copy of each Indenture referred to in Item 4. Not applicable.

 

6.The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.Report of Condition of the Trustee as of June 30, 2015 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 

* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

 

** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.

 

2 

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 18th of August, 2015.

 

  By: /s/ Nick Sandell  
    Nick Sandell
    Vice President

 

3 

 

 

Exhibit 2

 

  Office of the Comptroller of the Currency
Washington, DC 20219

 

CERTIFICATE OF CORPORATE EXISTENCE

 

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

 

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

 

2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.

 

 

IN TESTIMONY WHEREOF, today, July 3, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.

   
 
Comptroller of the Currency
 
 

 

4 

 

  

Exhibit 3

 

  Office of the Comptroller of the Currency
Washington, DC 20219

 

CERTIFICATION OF FIDUCIARY POWERS

 

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

 

1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

 

2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.

 

 

IN TESTIMONY WHEREOF, today, July 3, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.

   
 
Comptroller of the Currency
 
 

 

5 

 

 

Exhibit 6

 

CONSENT

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

Dated: August 18, 2015

 

  By: /s/ Nick Sandell  
    Nick Sandell
    Vice President

 

6 

 

 

Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 6/30/2015

 

($000’s)

 

   6/30/2015 
Assets     
Cash and Balances Due From  $17,896,807 
Depository Institutions     
Securities   102,874,924 
Federal Funds   53,692 
Loans & Lease Financing Receivables   252,013,047 
Fixed Assets   4,310,148 
Intangible Assets   13,076,832 
Other Assets   23,776,797 
Total Assets  $414,002,247 
      
Liabilities     
Deposits  $307,828,983 
Fed Funds   1,465,991 
Treasury Demand Notes   0 
Trading Liabilities   885,507 
Other Borrowed Money   46,539,645 
Acceptances   0 
Subordinated Notes and Debentures   3,650,000 
Other Liabilities   11,984,151 
Total Liabilities  $372,354,277 
      
Equity     
Common and Preferred Stock   18,200 
Surplus   14,266,400 
Undivided Profits   26,502,086 
Minority Interest in Subsidiaries   861,284 
Total Equity Capital  $41,647,970 
      
Total Liabilities and Equity Capital  $414,002,247 

 

7