Kathryn Stephany, JD

Company owners and other executives often receive compensation for providing a personal guarantee to a commercial loan their investment program is seeking. The size of this personal guarantee fee varies considerably, as does the level of disclosure. We believe the personal guarantor should be compensated, but it must be commensurate with the risk the guarantor is taking on. Drawing upon FactRight’s experience in reviewing private real estate and other alternative investment programs, this blog post focusses on personal guarantees (rather than corporate guarantees), discusses the typical range of fees, and reviews the factors that influence a reasonable fee amount.

*Olympic Trumpet flair*

With limited success for centuries, astronomers charted the stars with hopes of better understanding the universe until one day when Copernicus suggested that the earth was orbiting the sun. Once his epiphany was fully understood, empires could navigate the globe with unprecedented precision by knowing exactly where they were by looking up at the stars. Today, there is no shortage of cap rate/interest rate correlation theories in our industry. Perhaps more fully understanding commercial real estate cap rates and their orientation to interest rates can aid alternative investors in navigating the horizon of real estate investment opportunities.

FINRA recently released Regulatory Notice 23-08, which provides a reminder to FINRA members of their reasonable investigation obligations when selling private placement investments to their clients under Regulation D. The Regulatory Notice marks FINRA’s first substantial discussion of due diligence related to private offerings since Regulatory Notice 10-22, which was released in April 2010, and forms a crucial part of the foundation of broker-dealer due diligence practices in satisfying their reasonable investigation requirements for offering private placement investment opportunities for their clients. While Regulatory Notice 23-08 does not create new legal or regulatory requirements or new interpretations of existing regulations, the notice does identify areas for consideration and focus for FINRA members in establishing new or modifying existing practices, based on certain observations and examples that FINRA has included in the Regulatory Notice 23-08. In this blog, we will explore some of these areas of focus and some practical steps broker-dealers can take to enhance their due diligence practices based on areas identified in Regulatory Notice 23-08.

This blog looks at what unit pricing in an investment program offering means to your investors and how to determine whether such pricing treats all investors “fairly.”