Commonweatlh commenced bond offerings on a “best efforts” basis including a minimum contingency, in which escrow was broken without disclosing in the offering memoranda the possible use of loan proceeds to close the offerings.
In order to raise sufficient funds for one of the offerings, the issuer obtained a loan from a bank prior to closing the offering, and while the firm was not involved with obtaining the loan, it was aware that the loan had been obtained and the escrow account had been broken prior to the sale of the required minimum. To meet the required minium of the other offering, the issuer obtained a loan that the escrow agent considered in part as satisfying the offering contingency, and the funds were then used to retire the earlier bond issue as represented in the offering memorandum.
The Firm allowed the representations in the offering memorandums that investor funds would not be released until the contingency amounts were met to be rendered false and misleading. The Firm used unwarranted, exaggerated and oversimplified statements in connection with sales literature, including an oral presentation and a brochure, and failed to provide a sound basis to evaluate the bonds or risks involved.