Reg D and PPM

Reg D and PPM

San Antonio, TX · Member since 2010 · 93 posts · 32 votes

I recently read through as many posts on BP as I could regarding raising a small amount of money to use for my acquisitions. After going through - what appears to be a normal knee jerk, 'I'll just start a company and have friends and family invest in the company and I'll use the money at my discretion to buy whatever good deal comes along' - I've realized it's a little more complicated than that. Not much, but thanks to the posts here, I stopped making projections and started figuring out what actually needed to be done to be legal when asking other people for their money.

So, this is just an informative post for anyone else looking to raise capital - big or small fund.

In my case, I'm looking to raise less than a million. If you call up a big corp and securities attorney in your area, you may get similar responses...from no response to, 'well i guess you gotta start somewhere' with no indication that they wanted to waste their time on a peanut fund. I simply shrugged those statements off and kept doing some research and listened to the great podcast BP just put up about raising capital:

http://www.biggerpockets.com/renewsblog/2013/01/31/raising-money-getting-started/

I finally heard back from my RE attorney (who has already done PPM and reg d filings for himself and others and used to be a corp attorney) and got a price of $10k to setup the reg d offering. I also found some online resources claiming to do it for $3500 and they set you up with a consultant, help with the marketing of your fund, and have a list of brokers who can help sell it as well.

It might seem like overkill if you're just going to borrow money from you family/friends but if you want discretionary power and the ability to draw the funds quickly without getting a bunch of signatures from the investors, this is the way to go and still be covered. As many have said - so said my attorney - the docs are to protect the guy controlling the funds because you're disclosing the risks to the investors. My advice (for what it's worth), if you're looking to raise money and you don't want to do a DOT for every single deal, spend some time speaking with your attorney and it shouldn't be very difficult to set it up the right way the first time so you can ask friends and family while looking like an absolute professional.

Now, that said - I'm curious what others have done to setup a return that is fair for the investor and fair for the fund and fair for the manager. @brian burke mentioned in his podcast that his guys made close to - or more than - 20% in the first year. I've run some scenarios for realistic projections based on previous rehabs and number of rehabs and I can project the same type of returns for my investors but I'm not sure on some of the specifics. For example, when do you pay out the profits, are there penalties to the investors if they pull out of the fund before a certain number of years, do they roll over the profits they've made and if so, are there incentives for that other than compounding, are you paying out - or allocating - ALL of the profits to investors or yourself each year (meaning if the fund closed tomorrow would you keep the chunk of money left over after paying out the investor profits and initial investments or would you divide that chunk up between all the investors), are you paying yourself a salary for managing the fund and if so, are you also profit sharing??? I ask that last one because once I switch over to a fund like this, the money I am currently pulling out of each deal to live on, would need to stay in the fund and I'm left with no income until the end of the year if that's when the fund distributes profits.

So, now I'm going to sit down and speak with my attorney about those questions and how to setup the fund to be as attractive to investors as possible but I'd love to get some real world experience in on this convo. If you've done a fund like this in the past, any info you can provide would be helpful.

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Ned CareyPro Member
Moderator
Investor · Baltimore, MD · Member since 2008 · 17k+ posts · 13k+ votes
13y
Originally posted by Bill Gulley:

keeping them passive without voting rights or control. That way the can loan money to the LLC at a rate and share in any profit. Never an issue with the SEC as they are in the company.

Bill If they are passive it absolutely is and issue with the SEC.
Perhaps you misspoke because I think you know better.

For those reading along what makes it a security is the fact that the investor is passive. Check out the Supreme Court Howie case and the "Howie test"

See this reply in the discussion

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  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 18k+ posts · 17k+ votes
    13y

    Are these equity partners or lenders? In other words, will they have equity in the company (sharing the profits and losses) or will they be loaning money to the company and not having an equity position?

    If they are just lenders, you'll probably want to pay private money rates -- 8-12%.

    If they are equity investors, you'll want to factor in several things, including your experience, your financial projections, the risk of the deals you'll be doing, the length of the investment, etc. Depending on all those factors, you may find that an 8% return is good or you may find that you'll need to provide a much larger return in order to account for the risk and time involved.

    Without knowing more about what the fund will be used for -- and what the financial projections and risk are -- it's impossible to know what a reasonable return for an equity investment would be.

  • San Antonio, TX · Member since 2010 · 93 posts · 32 votes
    13y

    the simple answer would be whatever is more attractive to the investors. In reality, I would prefer to pay private money rates on their investment so any of the excess profits after paying out their interest earned are held by the company. how attractive that is for an investor...I don't know. But the nut grows a lot faster that way as far as I can tell.

    I've run scenarios with equity investors and that seems like it would be more attractive from an investor point of view but that's where I'm not sure of the structure used by others in determining the return for the investor. One who puts in $300k shouldn't get an 8% return based on net profit if a guy putting $25k gets the same return. So, I thought about doing brackets for certain investment levels ($50k,100k,200k) and then adding a load factor for their % of the total fund but these are all just guesses and arbitrary. So, guidance and advice is welcomed.

    Thanks

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 18k+ posts · 17k+ votes
    13y
    Originally posted by Randal McLeaird:
    the simple answer would be whatever is more attractive to the investors.

    Every investor will be different. Some will want more security and consistency in their returns (i.e., lender), while others will be happy to take more risk for a potentially greater return (i.e., equity partner).


    One who puts in $300k shouldn't get an 8% return based on net profit if a guy putting $25k gets the same return. So, I thought about doing brackets for certain investment levels ($50k,100k,200k) and then adding a load factor for their % of the total fund but these are all just guesses and arbitrary. So, guidance and advice is welcomed.

    The $300K investor will get the same PERCENTAGE return as the $25K investor, not the same return.

    In other words, let's say you have two investors -- one who puts in $800K and one who puts in $200K. If the fund generates $100K in returns (10%), each of your investors will might get 10% return on their money -- investor #1 will get $80K (10% of $800K) and investor #2 will get $20K (10% of $200K).

    They both get the same percentage, not the same amount.

    (Of course, the real scenario is more complicated -- you'll get some percentage and they may get variable amounts, etc -- but you get the idea.)

  • San Antonio, TX · Member since 2010 · 93 posts · 32 votes
    13y

    yeah I get the idea that the percentage return could be the same for all investors yet their yield would differ because their principal amount is different. I'm really just asking what you, or others, have done/offered that's worked in the past.

    I'm using the funds to buy and rehab. Again, I can work out different scenarios. The math isn't the issue. Just looking for some guidance on specific strategies you, or others, have employed when raising capital. What worked and what didn't work so well. What did you offer. Did you go for equity partners or lenders? what is your experience...?

    Sorry if the initial post made it sound like I didn't understand some of the basic concepts. That came from me trying to do brackets for investment levels and in my mind, a guy investing $25k year one fits into a 2.5% return on NET PROFIT and compounding their investment to have around $27,500 (just pulling out numbers) in year two - shouldn't receive the same amount (2.5% return since he's still under $50k bracket) as a guy who invests $25k in year two. This is why I came up with a load factor for their % contribution of total fund and that would be added to the base rate of return for that investment bracket. All that seemed to be too complicated so I just changed it to a simple % of the total fund they had invested and they would get paid based on that. Again, I'm pulling in arbitrary numbers but this is what I'm talking about:

    Investor 1 - $100k
    Investor 2 - $50k

    Total Fund - $150k
    Total Profit year 1 = $100k

    Investor 1 expected return
    $100/$150 = 66% of total fund or 6.6% return on Profits or $6600 yr 1

    What I'm saying is, I'm arbitrarily making up the return for the investor based on 1/10 of their investment in the total fund amount. There are so many problems with this type of scenario that I'm not going to go into it but that is why I'm asking what others have done in order to come up with that percentage for the investors. I'm just asking that question because I've not had to do this before and seeing what someone else has done will open my eyes to the different possible structures.

    I'll keep digging and I'll see if there are some books or other threads on this. Thanks for your posts J - keep em coming and I'll try to come up with a more concise way of asking what I'm trying to find out.

  • San Antonio, TX · Member since 2010 · 93 posts · 32 votes
    13y

    Just in case anyone is following this thread or reading it in the future, I wanted to post an answer to my own question regarding a system for paying investors in your fund.

    I was racking my brain trying to come up with a complicated system of profit sharing and no one was really helping me with information about how they structured their payouts until I sat down with a commercial developer. I mentioned my plan to raise some capital and explained how I thought it would be beneficial for me to pay out a fixed rate of return annually. I also mentioned a profit sharing strategy and went into a convoluted explanation of my plan. He stopped me and said what I was proposing was too complicated for what I was trying to do. He suggested a simple preferred return to investors and then a profit share %.

    Example:
    $100k invested
    9% preferred return
    25% profit share

    Assume $50k profit year one. Investor would receive

    $21,500

    This may sound like an obvious thing to anyone who has done this before. However, I felt like I was trying to reinvent the wheel with a complicated system so it made my life easier to hear that type of proposal.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    So, briefly, please, explain why you won't be a REIT or a mutual fund?

  • Alexandria, VA · Member since 2012 · 13 posts · 3 votes
    13y

    Have you considered going the crowdfunding route? Might be a different avenue if things don't work out or give you some additional ideas:

    http://www.forbes.com/sites/reuvencohen/2013/01/25/crowd-funding-for-aspiring-real-estate-moguls/

  • San Antonio, TX · Member since 2010 · 93 posts · 32 votes
    13y

    Haven't yet. I've heard a few things and came across some posts on here while researching the reg d. my attorney mentioned it but didn't have any concrete facts to tell me. I appreciate the link. I'll review it and see what options are available.

    Have you had success with crowdfunding?

  • San Antonio, TX · Member since 2010 · 93 posts · 32 votes
    13y

    Bill, I'm sure you could answer that for me but here is my understanding if you're talking about a public REIT or MF:

    I'm not publicly advertising for funds, I'm using less than 30 or so investors (or accredited), and I'm under a certain dollar amount

    Those were the exceptions as I understood them.

    My attorney is the one with the better answers and the guy doing the paperwork. He's raised money, taken companies public, and done all that I'm trying to do so that is about as good as I can hope for.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    So long as you don't advertsie, meet your accredited investors through other relationships, keep active capital investors below the current minimum, don't provide written guarantees or even suggesting a specific return beyond interest rates, never use all your sources in the same deal and have agreements that they will take other investors out with notice, then I'd say you will be fine. :)

    After a few years working under those conditions you can think about growing.

    I realize you want to market the projects to your investors with big numbers, that is an absolute beginner mistake. You are probably working with folks that can eat your lunch and send you packing. Don't go there as the second you miss any mark they can be on you and the odds are, if you make any guarantee or even show higher figures that may be construed as being part of the offer, you're done!

    Besides, if you make no promsises, you'll not need to tell any lies.

    I think you're absolutely on the right track getting with your attorney.

    I prefer to admit investors in a subordinate role as a member to an LLC, keeping them passive without voting rights or control. That way the can loan money to the LLC at a rate and share in any profit. Never an issue with the SEC as they are in the company. If they like, they can be in an active role with limited duties. I had indemnification agreements for them for any loss. Each deal can be sliced into a capital account accounting wise and seperate from others with collateral assignments. Easy to administer and operate.

    Your ability to take out any investor if they demand out is very important. Find an investor willing to fund the take out at a higher rate for the taking the obligation of buying others out.

    My 2 cents.. Good luck

  • Ned CareyPro Member
    Moderator
    Investor · Baltimore, MD · Member since 2008 · 17k+ posts · 13k+ votes
    13y
    Originally posted by Bill Gulley:

    keeping them passive without voting rights or control. That way the can loan money to the LLC at a rate and share in any profit. Never an issue with the SEC as they are in the company.

    Bill If they are passive it absolutely is and issue with the SEC.
    Perhaps you misspoke because I think you know better.

    For those reading along what makes it a security is the fact that the investor is passive. Check out the Supreme Court Howie case and the "Howie test"

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    Absolutely Ned, that didn't go from my mind to the keyboard right. Actually, tried to say something with fewer words.

    Rephrased, passive, not the right word, uninvolved to the adminstration and control of the company overall, but absolutely in control and active in thier account or cell/project/loan. If they wanted a more active role in the adminstration, (this was lending) so they wanted underwriting approval, etc. per deal as "board member" would, then okay, we could go there if that's what it took. Some simply wrote checks and said there ya go, which actually made me nervous, but the fact they were seldom involved doesn't mean they could not have been if they wanted to be or showed up.

    Each investor does not need to have an ownership interest from dumping all thier money in capital, they contribute to capital at any amount and then make loans to the compnay and earn income.

    Some members were trusts, my job has never been to advise on tax matters, I try not to go there.

    In any partnership, profits, losses and decission making is not required to be on an equal footing, while it usually is, it can be different. I rarely had anyone who wanted to do what I was doing, they would do what they thought was thier due diligence to the extent of making them happy.

    Another startegy is admitting LLCs as a member. 3 in one LLC and three LLCs as members in an parent LLC, this allows 9 individuals to participate in one LLC, this was blessed by my attorney. Yes, it can begin to look like a pyrimid if that LLC entered 2 "parents" to a "grandparent" , but its not, which my attorney suggested, but I never had that many folks involved at one time, no need to go there. Another point is that each of those LLCs could, at that time make a loan, and we did, servicing was then assigned. That way those LLCs were not captured entities, notes closed in thier name, and active entities standing alone.

    I kept members to 3s, I'm sure they were qualified, a few way over qualified, but I never had to go there to qualify them staying at 3 partners. Investors in this business don't like showing financials and I don't either so all was good.

  • Investor · Kingwood, TX · Member since 2012 · 97 posts · 21 votes
    13y

    I have invested in several Reg D offerings, and each of those paid a percentage of taxable income, generally ~75%. But I agree with J Scott that the business model drives much of the structure. A buy and hold real estate one would likely not pay off reported income as depreciation would greatly reduce the return to the investor...

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