3 BDRM, 2 BATH, Single Family Home: 205, Worth Ave, Palm Beach, FL
This is Executive Summary
Please indicate your level of interest. A member of the Real Invest investments team will be in touch with you shortly.
Potentail Investment Amount
Please select one of the below to certify your accreditation:
I made $200,000 or more in each of the two most recent years and believe I will make at least that much this year.
I have a joint income with my spouse that has exceeded $300,000 for each of the last 2 years and I expect it will exceed that again this year.
I have an individual net worth, or joint net worth with my spouse, that exceeds $1,000,000 today excluding my primary residence.
I am a representative of a bank, insurance company, registered investment company, business development company, or small business investment company interested in investment opportunities on KC iFund.
None of the above
I wish to invest as
District of Columbia
State of formation
District of Columbia
Investment Amount$ 10,000.00$ 20,000.00$ 30,000.00$ 40,000.00$ 50,000.00$ 60,000.00$ 70,000.00$ 80,000.00$ 90,000.00$ 100,000.00$ 110,000.00
ACh Authorization Agreement
INVESTOR PACKET FOR INVESTORS IN
BORROWER PAYMENT DEPENDENT NOTES OF
Kajaine Capital Inc
Your investor packet includes the following documents:
If necessary, we may request any additional documentation necessary to verify your identity or otherwise complete the review process. If you fail to provide the requested documentation, this may delay your acceptance or cause your participation request to be rejected.
We take precautions to maintain the privacy of personal information concerning current and prospective individual investors.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THIS NOTE UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. SEE THE PRIVATE PLACEMENT MEMORANDUM (THE “MEMORANDUM”) ISSUED BY COMPANY, DATED AS OF 11-30--0001, AND THE SUBSCRIPTION AGREEMENT BETWEEN THE COMPANY AND THE HOLDER WITH RESPECT TO THIS NOTE (THE SUBSCRIPTION AGREEMENT”) FOR MORE DETAILS.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) BECAUSE PAYMENTS ON THIS NOTE ARE DEPENDENT ON PAYMENTS ON THE CORRESPONDING BORROWER LOAN (AS DEFINED IN THE MEMORANDUM). THIS NOTE’S ISSUE PRICE IS THIS NOTE’S STATED PRINCIPAL AMOUNT, AND THE ISSUE DATE IS THE ORIGINAL ISSUE DATE. FOR FURTHER INFORMATION REGARDING THE AMOUNT OF ORIGINAL ISSUE DISCOUNT AND THE YIELD TO MATURITY OF THIS NOTE, THE HOLDER OF THIS NOTE SHOULD CONTACT THE COMPANY AT 205 WORTH AVENUE, SUITE 301 PALM BEACH, FL 33480, WHO WILL PROMPTLY MAKE SUCH INFORMATION AVAILABLE.
NON-RECOURSE BORROWER DEPENDENT
Palm Beach, FL
Corresponding Property Investment:
Principal Amount of this Note: $
Corresponding Property Loan Principal Amount: $
Original Issue Date:
Initial Maturity Date:
Final Maturity Date:
FOR VALUE RECEIVED, the undersigned, Kajaine Capital Inc , (the “Company”), hereby promises to pay to the Holder named above, the principal sum shown above, together with interest on the unpaid principal balance of this Note, as follows below (in accordance with this Note’s payment schedule, which is available on http://noteinvest.com, and subject to prepayment) until the Initial Maturity Date or, if the maturity of the Note has been extended, until the Final Maturity Date. The Holder’s pro rata share of a payment shall be based on (a) the original principal amount of this Note divided by (b) the aggregate principal and accrued interest of the corresponding borrower loan (as defined in the Memorandum) on the date when this Note was issued, each as set forth on the first page of this Note. For the avoidance of doubt, this Note represents a special limited obligation of the Company, and (1)no payments of principal and interest on this Note shall be payable unless the Company has received payments under the corresponding borrower loan, and then only to the extent of the amount of such payments received by the Company, and (2) no Holder of this Note shall have any recourse against the Company unless, and then only to the extent that, the Company has failed to pay such Holder his or her pro rata share of the payments under the corresponding borrower loan or has otherwise breached a covenant of this Note. The principal and interest payable on any payment date will be paid to the party in whose name this Note is registered at the close of business on the record date next preceding such payment date.
1. Interest . Interest on the unpaid principal balance will accrue at an annual rate equal to the Interest Rate shown above from the date (hereinafter, the “Date of Advance”) that the proceeds have been distributed by the Company to the entity or individual receiving the corresponding borrower loan (as defined in the Memorandum) otherwise known herein as the Underlying Note.
2.1 Payments. Payments shall be due and payable in arrears in consecutive periodic installments in accordance with this Note’s payment schedule, within the first twenty (20) business days of the most recently occurring of such scheduled payment dates. All payments of principal and interest on this Note due to the Holder shall be made in U.S. dollars, in immediately available funds, by intra-institution book entry transfer to the Holder’s designated account indicated through the Company’s online platform. Such payments shall continue until the entire indebtedness evidenced by this Note and all accrued and unpaid interest and fees are fully paid, with any unpaid principal and interest due and payable on the Initial Maturity Date shown above unless the Company has extended the maturity date to the Final Maturity Date. Notwithstanding the payment schedule herein, the Company shall only be obligated to make any payment on this Note if and only if, and only to the extent that, Company receives payment on the corresponding borrower loan. Should the Company not receive any payments from the corresponding borrower loan, Company will not owe anything to Holder. The Note will mature on the Initial Maturity Date; provided, however, that if on the Initial Maturity Date any principal or interest payments in respect of the corresponding borrower loan remain due and payable to the Company, the maturity date of this Note will be extended until the Final Maturity Date. In no event will the maturity of this Note be extended beyond the Final Maturity Date.
2.2 Amounts Advanced by Company. As set forth in the Memorandum, the Company will, at its sole discretion, advance any and all amounts necessary to protect its interest in the underlying note, including (without limitation) foreclosure fees and related costs as well as payments necessary to pay property taxes, senior liens, junior liens, and other fees and costs Company deems necessary to protect its lien in the corresponding borrower loan (the “Company’s Advances”). Any fees advanced by the Company will earn interest at the interest rate applicable to the corresponding borrower loan. Any amounts paid to the Company under the corresponding borrower loan shall be payable as follows: (1) to the Company, to recoup the Company’s Advances, (2) to the Company or third parties for any fees and costs allowed to be charged under the Memorandum and (3) the balance, if any, pro rata to the Holders of the Notes.
2.3 Withholding. If any withholding tax is imposed on any payment made by the Company to a Holder pursuant to this Note, such tax shall reduce the amount otherwise payable with respect to such payment. Upon request of the Company, a Holder shall provide the Company with an Internal Revenue Service Form W-9, W-BEN, W- 8ECI, W-8IMY or other similar withholding certificate of a state, local or foreign governmental authority such that the Company may make payments under the Note without deduction for, or at a reduced rate of deduction for, any tax.
3. Events of Default. On (a) the Company’s failure to pay any installment or other sum due under this Note when due and payable when the Company has received the same from the corresponding borrower loan (whether by extension, acceleration, or otherwise), (b) the Company has become subject to a voluntary or involuntary proceeding of bankruptcy, insolvency, or otherwise subject to receivership and remains so for a period of 60 days, or (c) any breach of any other promise or obligation in this Note or in any other instrument now or hereafter securing the indebtedness evidenced by this Note (collectively, “Default”), then after upon sixty (60) days from the date of receiving written notice of such default from the Holder, and if the Company fails thereafter to cure said default, the Holder may, at its option, declare this Note (including, without limitation, all accrued interest) due and payable immediately regardless of the applicable maturity date. The Company must receive notice of the exercise of this option. For the purposes of this paragraph, shall be deemed to receive Holder’s notice if Holder follows the notice provisions in paragraph 7 of this Note.
4. Prepayment. Company may prepay this Note in whole or in part at any time without any penalty. All prepayments of principal on this Note shall be applied to the most remote principal installment or installments then unpaid.
5. Sale Clause. Subject to compliance with the Act and applicable securities laws and regulations, Company may sell, convey, assign or otherwise transfer (a) all or any part of the corresponding borrower loan or (b) any interest in the corresponding borrower loan, whether any such sale, conveyance, assignment or other transfer occurs directly or indirectly, voluntarily or involuntarily or by operation of law, without the prior written consent of the Holder.
6. Waiver. The Company, endorsers, and all other persons liable or to become liable on this Note waive diligence, presentment, protest and demand, and also notice of protest, demand, nonpayment, dishonor and maturity and consents to any extension of the time or terms of payment hereof, any and all renewals or extensions of the terms hereof, any release of all or any part of the security given for this Note, any acceptance of additional security of any kind and any release of any party liable under this Note.
7. Notice. Any notice required to be provided in this Note shall be given and received via electronic mail, unless applicable law requires that such notice be given in writing. All notices shall be addressed to the party to whom such notice is to be given at (i) email@example.com if the recipient is the Company or (ii) the electronic mail address used by Holder when registering online at the Company’s investment platform if the recipient is the Holder; subject to the parties updating such addresses by providing notice pursuant to this Section 7.
8. Forbearance Not a Waiver. If the Holder delays in exercising or fails to exercise any of its rights under this Note, that delay or failure shall not constitute a waiver of any the Holder rights or of any breach, default, or failure of condition under this Note. No waiver by the Holder of any of its rights or of any such breach, default, or failure of condition shall be effective, unless the waiver is expressly stated in a writing signed by Holder.
9. Assignment. This Note inures to and binds the heirs, legal representatives, successors, and assigns of the parties; provided that the Holder may only assign or transfer this Note in connection with the terms outlined in the Memorandum, and under no circumstances may Holder assign or transfer this Note in violation of the Act.
10. Governing Law. This Note shall be construed and enforceable according to the laws of the State of (without giving effect to its conflicts of laws principles) for all purposes.
11. Time Is of the Essence. Time is of the essence with respect to all obligations of the Company under this Note.
12. No Modifications or A mendments; No Waiver. Except as specified herein, this Promissory Note may not be amended, modified or changed, nor shall any waiver of the provisions hereof be effective, except only by an instrument in writing signed by the party against whom enforcement of any waiver, amendment, change, modification or discharge is sought. Additionally, a waiver of any provision in one event shall not be construed as a waiver of any other provision at any time, as a continuing waiver, or as a waiver of such provision on a subsequent event.
13. Severability. Any provision of this Promissory Note which shall be held by a court of competent jurisdiction to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision or term hereof, and all other provisions or terms hereof shall remain in full force and effect.
14. Nonrecourse Generally . (i) The Company shall not be personally liable, and Holder shall not commence or prosecute any action against the Company, for the non- payment or non-performance of any obligation on this Note (the “Loan Obligations”) due to failure or default of the corresponding borrower loan; (ii) Holder shall not seek, obtain, or enforce a deficiency judgment against the Company; (iii) Holder’s recourse for the Company’s payment obligations shall be limited to the payments and amounts, if any, received by Company on the corresponding borrower loan; (iii) the Holder shall not be entitled to obtain specific performance or any other similar order, remedy, or relief against the Company relating to any claim arising from the Note; and (iv) the Holder waives any right to exercise any banker's right of set-off arising from the Note, against any funds of the Company in the Holder’s custody, control, or possession. No recourse under or upon any obligation, covenant or agreement contained in this Note, or because of any indebtedness evidenced thereby, shall be had against any past, present or future shareholder, officer, director or agent, as such, of the Company, either directly or through the Company, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or penalty or otherwise, all such personal liability of every such incorporator, shareholder, officer, director or agent, as such, being expressly waived and released by the acceptance hereof and as a condition of and as part of the consideration for the issuance of this Note.
15. Note Series Limitation. Holder understands and agrees that this Note is part of a series of Notes, which series of Notes is held in the aggregate by multiple holders. The Holder shall not assert any right of action, including (without limitation) any arbitration, lawsuit or otherwise, except in conjunction or aggregation with other holders of the Notes as set forth in the Subscription Agreement.
16. Transfer. This Note may not be transferred except as may be permitted under the terms of the Subscription Agreement. In the event that all conditions for transfer set forth therein have been satisfied, then upon due presentment for registration of transfer of this Note at the office or agency of the Company, accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by the Holder or the Holder’s attorney electronically or in writing, a new Note or Notes for an equal aggregate principal amount and like interest rate and maturity will be issued to the transferee in exchange there for, subject to a $500 transfer fee payable to the Company and to any stamp tax or other governmental charge imposed in connection therewith.
17. Tax Matters . Each Holder, by acceptance of a Note, shall be deemed to have agreed to treat, and shall treat, such Note as debt of the Company for United States federal income tax purposes and shall refrain from taking any action inconsistent with such treatment.
IN WITNESS WHEREOF, Kajaine Capital Inc has caused this instrument to be signed by its duly authorized officer.
Kajaine Capital Inc
By: Nirav Shah
CONFIDENTIAL PRIVATE PLACEMENT MEMORANDUM
Kajaine Capital Inc
$ BORROWER PAYMENT DEPENDENT NOTES
Kajaine Capital Inc (the “Company,” or “we,” “us,” “our,” or words to similar effect), is making a private offering to sell to accredited investors (each, an “Investor,” or “you”) certain promissory notes made by the Company that are dependent for payment on payments that the Company receives on one or more specific borrower loans that will be secured by a deed of trust, mortgage, security agreement, or legal title to real estate (the “Borrower Payment Dependent Notes,” or the “Notes”). The Notes are being offered through the Company’s online investment platform.
The Company will issue the Notes on an ongoing basis, and will issue the Notes in series, through the online website platform. Each series will correspond to one or more loans secured by real estate (collectively, a “borrower loan”) that (i) is made by the Company to,(ii) is purchased by the Company from, or (iii) in which the Company participates alongside, one or more real estate companies (or one or more individuals operating a real estate business) that provides security for the loan (collectively, the “borrower”). Each of these borrower loans (or the components thereof) will be secured by a deed of trust, mortgage, security agreement, or legal title to the underlying real estate. In this private placement memorandum (this “Memorandum”), we refer to the borrower loan funded with the proceeds we receive from a particular series of Notes as the “corresponding borrower loan” for the series.
Each time we offer a series of Notes we will also prepare a disclosure supplement (which will be posted on our website) with information about the applicable series of Notes and the corresponding borrower loan for that series, which we refer to as a “Series Note Listing.” Each Series Note Listing provides information about the series of Notes offered for sale and the corresponding borrower loan, as well as other applicable or relevant information relating to the series of Notes then being offered for sale on our website.
Important terms of the Notes include the following, each of which is described in detail in this private placement memorandum:
• Our obligation to make payments on a Note will be limited to an amount equal to the Investor’s pro rata share of amounts we receive with respect to the corresponding borrower loan for that Note, net of any applicable fees or investment incentives. We do not guarantee payment of the Notes or the corresponding borrower loans, and the Notes are not obligations of our borrowers.
• The Notes will be special, limited obligations of the Company only and are not obligations of the borrowers under the corresponding borrower loans.
• The Notes will be unsecured obligations of the Company, and Investors will not have any security interest in any of the Company’s assets, including (without limitation) the borrower loan, nor will the Notes be secured by any assets of the borrower.
• Each borrower loan (or the components thereof) will be secured by a first lien security interest such as a mortgage, deed of trust or security deed on the underlying real estate. In the event of a default on the borrower loan, any recovery by the Company under that security interest will be shared with Investors pro rata, net of any applicable fees and charges.
• Each series of Notes will have its own set of terms. Generally, each Note will bear interest from the date of issuance; but different series of Notes will have different interest rates and have different terms to maturity, depending on the corresponding borrower loan. Investors must consult the applicable Series Note Listing in respect of each Note, a copy of which will be posted online, to review and evaluate the specific terms and conditions associated with any particular Note.
• All Notes will be issued in electronic form only and are restricted securities; thus, they are generally not transferable and are subject to the legal restrictions governing private offerings generally. Investors must be prepared, therefore, to hold their Notes to maturity. Further information regarding restrictions on transfers is provided herein.
• To the extent we are unable to collect payments (or portions thereof) under a borrower loan, we will not be obligated to make the corresponding payment (or portion thereof) under the Notes.
• When you commit to purchase a Note, the Note may not be issued until up to 45 days after we have received all funding commitments for the Note and funding for the Note is fully subscribed. From the time when you make your purchase commitment to the time that your funds are invested in the Note, the funds you have committed toward the purchase of your Notes will not be available for investment in other Notes or for withdrawal from your account. Because your funds do not earn interest until the issuance of the Note, the delay in issuance of your Note will have the effect of reducing the effective rate of return on your investment.
• Because certain terms (e.g., issuance date) of a series of Notes may not be known until all funding commitments have been received and the closing for such series of Notes has occurred, the form of Note will simply be posted on the website along with the Series Note Listing and this Memorandum, and Investors will need to execute only a Subscription Agreement for the Note amount desired. Investors will be electronically notified by the Company of the closing date of the applicable series of Notes and of any material changes to Note terms, but clerical alterations to the final form of Notes will be reflected in the Company’s internal records without further Investor notification.
• We have a limited operating history, and, as an online company in the early stages of development, we face increased risks, uncertainties, expenses and difficulties.
• We will need to raise substantial additional capital to fund our operations, and if we fail to obtain additional funding, we may be unable to continue operations.
• The Notes are structured as borrower payment dependent notes with security from the real estate underlying the corresponding borrower loan. Investors should evaluate any investment in this context. There is no financial information provided herein with respect to the Company, and Investors are subject to the risk of the Company’s overall business and financial condition which is uncertain.
• If we were to become subject to a bankruptcy or similar proceeding, your rights could be uncertain, your recovery of funds due on the note may be substantially delayed, and any funds you do recover may be substantially less than the amounts due or to become due on the Note.
This offering is highly speculative and the Notes involve a high degree of risk. The Notes have not been approved or disapproved by, and they will not be insured by, any governmental agency. Investing in the Notes should be considered only by persons who can afford the loss of their entire investment.
This offering is open to accredited investors generally; however, the discussion contained in this Memorandum is directed to U.S. investors and assumes an investment in the Notes is being made by an investor with a domicile in the U.S. A separate offering (including an alternative Memorandum and Subscription Agreement) will be made available to international investors who seek to invest in the Notes through reliance on Regulation S.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE NOTES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THIS OFFERING IS MADE IN RELIANCE ON AN EXEMPTION FROM REGISTRATION WITH THE SECURITIES AND EXCHANGE COMMISSION PROVIDED BY SECTION 4(2) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND RULE 506 OF REGULATION D PROMULGATED THEREUNDER, AND ANY OTHER APPLICABLE EXEMPTION FROM THE ACT AS APPLICABLE.
THIS INVESTMENT INVOLVES A DEGREE OF RISK THAT MAY NOT BE SUITABLE FOR ALL PERSONS. ONLY THOSE INVESTORS WHO CAN BEAR THE LOSS OF THEIR ENTIRE INVESTMENT SHOULD PARTICIPATE IN THE INVESTMENT. (SEE “RISK FACTORS.”)
THIS MEMORANDUM HAS BEEN PREPARED SOLELY FOR THE BENEFIT OF AUTHORIZED PERSONS INTERESTED IN THE OFFERING. IT CONTAINS CONFIDENTIAL INFORMATION AND MAY NOT BE DISCLOSED TO ANYONE OTHER THAN AUTHORIZED PERSONS SUCH AS ACCOUNTANTS, FINANCIAL PLANNERS OR ATTORNEYS RETAINED FOR THE PURPOSE OF RENDERING PROFESSIONAL ADVICE RELATED TO THE PURCHASE OF THE NOTES OFFERED HEREIN. IT MAY NOT BE REPRODUCED, DIVULGED OR USED FOR ANY OTHER PURPOSE UNLESS WRITTEN PERMISSION IS OBTAINED FROM THE COMPANY. THIS MEMORANDUM DOES NOT CONSTITUTE AN OFFER OR SOLICITATION TO ANY PERSON EXCEPT THOSE PARTICULAR PERSONS WHO SATISFY THE INVESTOR QUALIFICATION STANDARDS DESCRIBED HEREIN.
THE SALE OF THE NOTES COVERED BY THIS MEMORANDUM HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, IN RELIANCE UPON THE EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS SET FORTH IN SECTION 4(2) OF THE ACT AND RULE 506 OF REGULATION D THEREUNDER. THESE SECURIITES HAVE NOT BEEN QUALIFIED OR REGISTERED IN ANY STATE, IN RELIANCE UPON THE EXEMPTIONS FROM SUCH QUALIFICATION OR REGISTRATION UNDER STATE LAW. THESE SECURITIES ARE “RESTRICTED SECURITIES” AND MAY NOT BE RESOLD OR OTHERWISE DISPOSED OF UNLESS A REGISTRATION STATEMENT COVERING DISPOSITION OF SUCH SHARES IS THEN IN EFFECT, OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THERE IS NO PUBLIC MARKET FOR THE NOTES AND NONE IS EXPECTED TO DEVELOP IN THE FUTURE. SUMS INVESTED IN THE NOTES ARE ALSO SUBJECT TO SUBSTANTIAL RESTRICTIONS UPON WITHDRAWAL AND TRANSFER. THE NOTES OFFERED HEREBY SHOULD BE PURCHASED ONLY BY INVESTORS WHO HAVE NO NEED FOR LIQUIDITY IN THEIR INVESTMENT.
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THIS OFFERING TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS MEMORANDUM; ANY SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE RELIED UPON. ANY PROSPECTIVE PURCHASER OF THE NOTES WHO RECEIVES ANY SUCH INFORMATION OR REPRESENTATIONS SHOULD CONTACT THE COMPANY IMMEDIATELY TO DETERMINE THE ACCURACY OF SUCH INFORMATION. NEITHER THE DELIVERY OF THIS MEMORANDUM NOR ANY SALES HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR IN THE INFORMATION SET FORTH HEREIN SINCE THE DATE OF THIS MEMORANDUM SET FORTH ABOVE.
PROSPECTIVE PURCHASERS SHOULD NOT REGARD THE CONTENTS OF THIS MEMORANDUM OR ANY OTHER COMMUNICATION FROM THE COMPANY AS A SUBSTITUTE FOR CAREFUL AND INDEPENDENT TAX AND FINANCIAL PLANNING. EACH POTENTIAL INVESTOR IS ENCOURAGED TO CONSULT WITH HIS, HER OR ITS OWN INDEPENDENT LEGAL COUNSEL, ACCOUNTANT AND OTHER PROFESSIONALS WITH RESPECT TO THE LEGAL AND TAX ASPECTS OF THIS INVESTMENT AND WITH SPECIFIC REFERENCE TO HIS, HER, OR ITS OWN TAX SITUATION, PRIOR TO SUBSCRIBING FOR THE NOTES.
THE NOTES ARE OFFERED SUBJECT TO PRIOR SALE, ACCEPTANCE OF AN OFFER TO PURCHASE, AND TO WITHDRAWAL OR CANCELLATION OF THE OFFERING WITHOUT NOTICE. THE COMPANY RESERVES THE RIGHT TO REJECT ANY SUBSCRIPTIONS IN WHOLE OR IN PART.
THE COMPANY WILL MAKE AVAILABLE TO ANY PROSPECTIVE INVESTOR AND HIS, HER, OR ITS ADVISORS THE OPPORTUNITY TO ASK QUESTIONS AND RECEIVE ANSWERS CONCERNING THE TERMS AND CONDITIONS OF THE OFFERING, THE COMPANY OR ANY OTHER RELEVANT MATTERS, AND TO OBTAIN ANY ADDITIONAL INFORMATION TO THE EXTENT THE COMPANY POSSESSES SUCH INFORMATION.
THE INFORMATION CONTAINED IN THIS MEMORANDUM HAS BEEN SUPPLIED BY THE COMPANY. THIS MEMORANDUM CONTAINS SUMMARIES OF DOCUMENTS NOT CONTAINED IN THIS MEMORANDUM, BUT ALL SUCH SUMMARIES ARE QUALIFIED IN THEIR ENTIRETY BY REFERENCES TO THE ACTUAL DOCUMENTS. COPIES OF DOCUMENTS REFERRED TO IN THIS MEMORANDUM, BUT NOT INCLUDED AS AN EXHIBIT, WILL BE MADE AVAILABLE TO QUALIFIED PROSPECTIVE INVESTORS UPON REQUEST.
NASAA UNIFORM LEGEND
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE MADE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
[Remainder of page intentionally left blank]
The Notes will be Company obligations that are tied to the performance of a corresponding borrower loan. The Company will issue and sell a series of Notes for each borrower loan that is funded. Each series of Notes is dependent for payment on payments that the Company receives on the corresponding borrower loan. These corresponding borrower loans (or the components thereof) will be secured by a deed of trust, mortgage, security agreement, or legal title to real estate. There are many different types of real estate loan opportunities that the Company will offer from time to time, but, with respect to the Notes, unless clearly indicated in a particular Series Note Listing, the corresponding borrower loan (or the components thereof) will be secured by the applicable real property (or properties) until the borrower repays the loan (or the component thereof) in full. Investing in the Notes should only be considered by persons who can afford the loss of their entire investment. See “Risk Factors.”
The Notes are sold to Investors who remit funds and execute a Subscription Agreement relating to a particular Series Note Listing on the platform, which funds and Subscription Agreement may be ultimately accepted by the Company. Notes are issued in the principal amount of Investors’ respective investments. After a Series Note Listing is posted, Investors can place investments on that listing until the listing has received investments totaling the requested funding amount. The Company currently accepts investments in amounts of as little as ##MIN_INVESTMENT##, although in some cases larger minimum investment amounts may be required. If the listing does not receive investments equal to or exceeding the minimum amount required for the listing to fund by the close of the escrow date for the underlying borrower loan, generally the listing will terminate and The requested loan will not be funded. However, in some instances where the Company believes that additional Investors may later elect to participate in the listing, the Company may provide bridge financing in order for escrow to be closed on the underlying borrower loan, and the listing will remain active on the platform until the listing is fully funded and the bridge loan repaid to the Company. In such cases, Investors who had already committed to Notes at the time of the borrower’s escrow closing will begin to accrue interest as of such date.
For some loans, the Company will issue the corresponding borrower loan directly. In some cases, the Company may enter into a relationship whereby one or more third parties issues (and/or services) the corresponding borrower loan and the Company then purchases that corresponding borrower loan (or a participating interest therein) from the third party. Where the Company merely takes a participating interest in a borrower loan, the third party may sometimes remain the lead lender on that borrower loan, and may retain control of the deed of trust, mortgage, or other security documents. In other cases, the Company may purchase all or a portion of a borrower loan that had been previously been issued by a third party.
Unless clearly indicated otherwise, each of the borrower loans (or the components thereof) will be secured by a mortgage, deed of trust or security deed on the underlying real estate. The Company does not currently intend to be making or arranging loans based on “junior” security arrangements. The Company will generally be a named beneficiary on property casualty and title insurance policies.
Investors can review, on the Company’s online website platform, each Series Note Listing describing that series of Note offering and the corresponding borrower loan. The Series Note Listing will provide Investors with a description of the Notes, the terms of the corresponding borrower loan, and the nature of the security of the corresponding borrower loan. Taken together with this Memorandum and the form of Note, the Series Note Listing will contain the authoritative description of any series of Notes offered by the Company.
The Company will generally pay each Investor principal and interest on such Investor’s Note in an amount equal to each such Note’s pro rata portion of the principal and interest payments, if any, that the Company receives on the corresponding borrower loan, net of any Company fees or other third-party servicing fee, if applicable. Any such fees will vary with each series of Notes, and the applicable information will be provided on the Series Note Listing posted online. The Company may vary from a precise pro rata formula if one or more investors have been granted special investment incentives, e.g. where such Investor is investing sizable amounts. Investors may receive all or a portion of the fees charged by the Company to borrowers for beneficiary statements and demands, late charges, postponement and extension fees, processing fees, default interest charged to the borrower, forbearance fees, inspection fees, administrative fees and any other payments or fees due from the borrower (except for returned check charges, which will always be retained in full by the Company). If a loan contains a prepayment charge, Investors may be entitled to keep a portion or all of the charge (as will be described in the Series Note Listing for the applicable loan). The Series Note Listing of each loan will describe all such charges and fees, and whether the Investors will be entitled to keep all or a portion of such fees and charges or the applicable fees and charges that are assigned, retained and to be received by the Company. In addition, the funds available for payment on the Notes will be reduced by the amount of any attorneys’ fees or collection fees that the Company, an affiliate or a third-party servicer or a collection agency imposes in connection with collection efforts related to the corresponding borrower loan.
The Company reserves the right, in its sole discretion, to not disclose the name or identity of the borrower with respect to any series of Notes. In such circumstances, Investors must make their respective investment decisions based solely on information provided about the borrower, the Note, the corresponding borrower loan and other material facts, but without knowledge of the identity or name of the borrower.
Investors should review this Memorandum, together with the Series Note Listing for the corresponding borrower loan (made available to Investors on the Company’s online website platform) prior to making any decision to invest in a Note.
Summary of the Offering
The Offering is summarized as follows:
With respect to each investment made by an Investor, that Investor will be required to sign a subscription agreement pursuant to which he, she or it must represent (among other things) that the Investor meets certain requirements related to private offerings made to accredited investors. Each person acquiring a Note will also be required to represent that he, she, or it is purchasing for his, her, or its own account for investment purposes and not with a view to resale or distribution. Each Investor must be domiciled in the United States and must meet certain income and/or net worth requirements before investing in the Notes. Only Investors with adequate assets should invest in the Notes. (See “Risk Factors”.)
This offering is open to accredited investors generally; however, the discussion contained in this Memorandum is directed to U.S. investors and assumes an investment in the Notes is being made by an investor with a domicile in the U.S. A separate offering (with an alternative Memorandum and Subscription Agreement), will be made available to international investors who seek to invest in the Notes through reliance on Regulation S. The Company recommends that non-U.S. investors consult with their own respective and independent legal counsel to evaluate this or any related Memorandum and the effects of any investment in the Notes from the perspective of a foreign investor. This Memorandum does not address international laws, rules or regulations (such as, without limitation, taxation, securities and/or investment laws, rules or regulations of any foreign jurisdiction).
The Notes are the Company’s unsecured special, limited obligations that are tied to the performance of a particular secured borrower loan. The Notes will be U.S. dollar denominated and will be issued in series.
Each series of Notes will correspond to a specific borrower loan, and payment will depend on payments we receive on the corresponding borrower loan. We have no obligation to make any payments on the Notes unless, and only to the extent that, we have received payments on the corresponding borrower loan.
The exact form of Note for each particular series of Notes offered to Investors through this offering will vary based on the terms and conditions of the specific transaction. Because certain terms (e.g., issuance date) of a series of Notes may not be known until all funding commitments have been received and the closing for such series of Notes has occurred, the form of Note will simply be posted on the website along with the Series Note Listing and this Memorandum, and Investors will need to execute only a Subscription Agreement for the Note amount desired. Investors will be electronically notified by the Company of the closing date of the applicable series of Notes and of any material changes to Note terms, but clerical alterations to the final form of Notes will be reflected in the Company’s internal records without further Investor notification.
All Notes will be issued in electronic form only, through our online website platform. The registration, processing and payment systems are automated and electronic. We do not have any physical branches, deposit-taking or interest payment activities. Our website will provide detailed information about the platform, including the full text of the necessary legal agreements, as well as the Series Note Listing applicable to each series of Notes. The Series Note Listing will provide Investors with a description of the Notes, the terms of the corresponding borrower loan, some information about the borrower (but not necessarily the name or identity of the borrower), and the nature of the security of the borrower loan. In addition to the customer support materials available on the website, the Company makes additional customer support available to members by email and phone.
For each series, the Notes will be sold to Investors who remit funds and execute a Subscription Agreement relating to a particular Series Note Listing on the platform, which funds and Subscription Agreement may be ultimately accepted by the Company. Notes are issued in the principal amount of Investors’ respective investments. After a Series Note Listing is posted online, Investors can place investments on that listing until the listing has received investments totaling the requested loan amount. The Company currently accepts investments in amounts of as little as $5,000, although in some cases larger minimum investment amounts may be required. If the Series Note Listing does not receive the necessary aggregate investments prior to the scheduled escrow close date for the underlying borrower loan, either (i) the listing will terminate and the requested loan will not be funded, or (ii) where the Company believes that additional Investors may later elect to participate in the listing, the Company may elect (in its sole discretion) to arrange bridge financing to close the borrower loan, and the listing will remain active on the platform until the listing is fully funded and the bridge loan repaid. In such cases, Investors who had already committed to Notes at the time of the borrower’s escrow closing will begin to accrue interest as of such date
For some loans, the Company will issue the borrower loan directly. The Company may service the loan directly or, in certain cases, may put in place a third party loan servicer, which may be wholly-owned subsidiary of the Company. In some cases, the Company may enter into a relationship whereby one or more third parties issues (and/or services) the corresponding borrower loan and the Company then purchases that corresponding borrower loan (or a participating interest therein) from the third party. Where the Company merely takes a participating interest in a borrower loan, the third party may sometimes remain the lead lender on that borrower loan, and may retain control of the deed of trust, mortgage, or other security documents. In other cases, the Company may purchase all or a portion of a borrower loan that had been previously been issued by a third party. The Company may enter into a relationship with one or more third parties to have the third party issue and service the borrower loan and for the Company to then purchase the corresponding borrower loan remittances from the third party.
Unless clearly indicated otherwise, each of the borrower loans (or the components thereof) will be secured by a mortgage, deed of trust, security agreement, or legal title. The Company does not currently intend to be making or arranging loans based on “junior” security arrangements. Borrowers will be required to maintain satisfactory property casualty insurance, whereby the Company (or, in a participation arrangement, the lead lender) will generally be named as the primary loss payee on such insurance, and title insurance will be obtained.
Investors can review, on the Company’s online website platform, each Series Note Listing describing that series of Notes and the corresponding borrower loan. The Series Note Listing will provide Investors with a description of the Notes in that series, the terms of the specific borrower loan, some information about the borrower, and the nature of the security of the borrower loan. The Series Note Listing (posted online) will, together with this Memorandum and the form of Note, contain the authoritative description of any Notes offered by the Company.
Denominations, Form and Registration
We will issue the Notes only in registered, electronic form. This means that each Note will be stored on our website. You can view a record of the Notes you own and the form of your Notes online and print copies for your records by visiting your secure, password-protected webpage in the “Dashboard” section of our website. We will not issue certificates for the Notes. Investors will be required to hold their Notes through the Company’s electronic Note register.
We will treat the Investors in whose names the Notes are registered as the owners thereof for the purpose of receiving payments and for all other purposes.
The interest rate applicable for each series of Notes will be set forth in the Series Note Listing. The Company expects that, in nearly all cases, the interest rate provided to Investors in the Notes will be less than the interest rate paid to the Company or its affiliates by the borrower on corresponding borrower loan, as the Company typically receives an economic “spread” of interest that will vary among series of Notes.
The interest rates payable on each borrower loan will vary, depending on various factors applicable to the underlying property and the borrower. Consequently, the interest rate will vary for each series of Notes, and the yield an Investor earns on one series of Notes may differ from the yield earned by other Investors in other series of Notes. In addition, in some cases, the interest paid to all investors will not be the same. The Company is permitted to enter into investment agreements with certain Investors as it may from time to time deem advisable. For example purposes only, such agreements might stipulate certain incentives to be provided where an Investor contributes a particularly significant amount to the Company. In such cases, the Company may offer one or more Investors such discounts or rebates as it deems advisable, with such discounts or rebates to be payable by the economic “spread.”
From time to time, some series of Notes may feature additional contingent payment provisions reflecting a similar feature in a corresponding borrower loan, whereby Investors may be able to realize additional payments upon the occurrence of certain events during the life of the corresponding borrower loan. Any such contingent payments, if applicable, will be described in detail in the Series Note Listing; however, such contingent payment provisions are expected to be available only infrequently, and if the Series Note Listing does not describe such a contingent payment mechanism, then no such payments will apply for that series of Notes.
Each series of Notes will have varying terms, depending on the term of the corresponding borrower loan. Most of the borrower loans, and thus the Notes, will have a typical duration of between 6 months and 5 years. No single loan is currently expected to have a duration of greater than 5 years.
The Notes in each series will mature at the end of the term of the corresponding borrower loan. If there are amounts owing to the Company on the corresponding borrower loan at the end of the initial maturity date, the term of the Notes will be extended to allow for more time for the Company to receive further payments due under the corresponding borrower loan and for Investors to thus receive further payments on the corresponding Notes; provided, however, that the final maturity date shall not be a time later than two (2) years after the initial maturity date, after which Investors will have no further right to receive payments on the Notes (even if the Company receives further payments on the corresponding borrower loan).
The Notes may never reach maturity, however, because we expect that in most cases borrower loans may be prepaid without penalty, and because we may, in our sole discretion and, subject to the applicable servicing standards, amend, modify, or assign or sell our rights under the borrower loan to a third-party, or charge off the borrower loan at any time after any delinquency thereon.
Ranking; Sinking Fund
The Notes will be unsecured special, limited obligations of the Company. For each series of Notes, the Company will be obligated to make payments on the Notes if and only if, and only to the extent that, the Company receives principal and interest payments from the borrower on the corresponding borrower loan. Payments on the borrower loan will be shared ratably among all Investors in the related series of Notes. In the event of a bankruptcy or similar proceeding of the Company, the relative rights of the holder of a Note as compared to the holders of other unsecured indebtedness of the Company with respect to payment from the proceeds of the borrower loans or other assets of the Company is uncertain. See “Risk Factors.” Each series of Notes will correspond to a specific borrower loan, and payment will depend on payments we receive on the corresponding borrower loan. The Notes will not have the benefit of a sinking fund.
Servicing and Payments
Subject to the limitations described below under “Limitations on Payments,” we will make installment payments on the Notes upon receiving payments in respect of the corresponding borrower loan, in accordance with the payment schedule for the Notes. In some cases, the Company will collect payments on the borrower loans, while in other jurisdictions the Company may enter into a relationship with a third party in order to have that third party issue, or act as the servicer of, the borrower loan. In all cases, the Company, an affiliate or a third party will disburse corresponding payments on the applicable series of Notes.
Each series of Notes will have a payment schedule providing for periodic payments over a term equal to the corresponding borrower loan. Such schedule will specify the payment dates and the type of periodic payments (monthly, quarterly, etc.) applicable to that series of Notes. After any borrower loan is paid in full, either as a result of the borrower paying off the borrower loan or as a result of a payoff in a foreclosure proceeding, the Company will pay off the Note and pay Investor with the proceeds (net of any fees, charges and reimbursement of advances payable to the Company) as soon as practicable.
We expect that, for each borrower loan, we will request a payment from the borrower (through the Automated Clearing House system of the U.S. Federal Reserve Board or a successor system providing electronic funds transfers between banks, which we refer to as the “ACH”) on the business day prior to the payment due date, and that we will normally receive payment within five (5) business days. A payment by the borrower may not be distributed to the Note holder until as late as the 20th business day after the ACH payment was requested. Investors can review their account statements online and see that they have received payment on the Notes beginning on the 20th business day after the ACH payment was requested. The same process occurs upon maturity of the Note. Although payment under the Notes will be made up to 20 business days after the applicable payment and maturity date, the Company will treat the payment date and maturity date of the Note to be the same as the dates applicable to the corresponding borrower loan.
Pursuant to the terms of the applicable borrower loan, the borrower may have a grace period from the date that payments are due under the borrower loan. Within ten (10) days after the expiration of any grace period and/or in accordance with applicable state law, the Company or its retained servicing provider will generally telephone and/or send a notice of delinquency to the borrower. If the borrower does not adequately respond to the notice of delinquency within a reasonable time, then (or as may be in accordance with state law) the Company or its retained service provider generally will record a notice of default, if applicable, with respect to the borrower loan. The Company may exercise its discretion in the timing of the filing of the notice of default. The Company may also exercise its discretion in the timing of any foreclosure under the power of sale contained in the applicable security instrument, including granting short term extensions of the foreclosure date.
The Company will communicate with Investors through its online website platform or via electronic mail as to material developments regarding a corresponding borrower loan. The Company or its affiliates will maintain possession of all original borrower loan documents and related security instruments.
Limitations on Payments
Any amounts received on borrower loans will be forwarded by the Company to the holders of the corresponding series of Notes, net of any fees, charges or other reimbursements payable to the Company or its affiliates. Each Investor’s right to receive installment payments and other amounts in respect of that series of Notes is limited in all cases to the Investor’s pro rata portion of the amounts received by the Company in connection with the corresponding borrower loan, including, without limitation, all principal and interest payments, prepayments, partial payments, late payments or settlements, the proceeds from any foreclosure on collateral, or the proceeds from an assignment to a collections agent, subject to the repayment of any Company advances made in connection with collection or similar efforts made with respect to the borrower loan. To the extent we do not receive a required payment on a borrower loan, we will not make any payments on the series of Notes related to that payment (or the portion thereof that we do not receive, in the case of a partial payment), and a holder of a Note will not have any rights against the Company or the borrower in respect of the Note or the corresponding borrower loan.
In the event a borrower loan is serviced by a third party servicer (whether or not affiliated with the Company), that servicer may charge a servicing fee on amounts collected, and this fee will be paid prior to any distribution to Investors.
An “unsuccessful payment fee” is a fee charged by the Company or a third-party or affiliated servicer or collection agency when a payment request is denied or a check is returned unpaid for any reason, including but not limited to, insufficient funds in the borrower’s bank account or the closing of that bank account. The unsuccessful payment fee currently charged by the Company on borrower loans is $35 or such lesser amount permitted by law.
The Company retains the authority to grant appropriate payment deferrals based on its overall assessment of a borrower, the property situation, and market conditions generally. In such cases, the payment terms of the Notes will be correspondingly adjusted. The Company, or an affiliate, may also, in its sole discretion, advance amounts necessary to protect the security of any borrower loan. Such amounts may include the payment of taxes, prior encumbrances or liens, property and casualty insurance, foreclosure expenses, repair, litigation expenses and similar items, and also for accountant fees, consultants, property maintenance and similar items. The Company may make such advances when, in its sole discretion, it determines that the borrower loan may be at risk and believes that the making of such advances will ultimately be economically beneficial. The Company will notify Investors in the applicable series of Notes if and when such advances are made and that the amount of such advances may be withheld from payments that Investors would otherwise receive on the Notes. The Company is not required to make any such advances and may choose whether or not to make any such advance in its sole discretion. Any advances made by the Company will, at the Company’s sole discretion, bear interest at the lesser of the applicable Note interest rate or the maximum rate allowed by law, and will be reimbursable to the Company upon receipt of funds from the borrower. Furthermore, in the event of foreclosure, the Company is entitled to recover the costs of foreclosure and any amounts advanced by the Company (with applicable interest thereon) in respect of the property being foreclosed upon prior to any payment or other distribution being made to Investors.
Each series of Notes will mature on their initial maturity date, unless any scheduled payments in respect of the corresponding borrower loan remain due and payable upon the initial maturity date, in which case the maturity of the Notes will be automatically extended to the final maturity date and the unpaid portion of the corresponding borrower loan will continue to accrue interest at the applicable rate. After the final maturity date, Investors will have no further right to receive payments on the Notes, even if the Company later recovers additional amounts relating to the corresponding borrower loan.
To the extent that a borrower prepays a corresponding borrower loan, holders of the series of Notes related to that corresponding borrower loan will typically be entitled to receive their pro rata share of the prepayment, net of any accrued or owing fees, charges or other reimbursements otherwise due and payable to the Company or its affiliates.
Certain Aspects of the Loans and Special Types of Real Estate Debt
As discussed above, if the borrower remains in default after any accommodation granted by the Company to the borrower to cure such default, the Company (or, in a participation arrangement, the lead lender) may foreclose on the property underlying the corresponding borrower loan. The terms of borrower loans with respect to default and foreclosure will vary. Borrower loan documents may provide, for example, that a default by the borrower on any other loan or obligation made or arranged by the Company will cause the Company (or lead lender) to declare a default under the deed of trust relating to the corresponding borrower loan. The Company may add a shortfall from the borrower on one loan to the payoff demand on another loan from the same borrower; in such a case, the Company would direct the shortfall amount back to the Investors in the series of Notes relating to the first loan.
The Company may also determine that an advance is necessary and prudent to protect Investors’ interests. Such instances might include the cancelation or expiration of fire insurance or the delinquency of property taxes. Any such advances would be added to the corresponding borrower loan amounts, bear interest at the loan rate, and, in the case of forced insurance, may be significantly more expensive than conventional fire insurance.
Some series of Notes and their corresponding borrower loans may provide for monthly payments of interest only and will require the borrower to make a “balloon” payment of the unpaid principal and interest at the end of the loan term. Some series of Notes and the corresponding borrower loans may be partially amortized loans, and will require the borrower to make a “balloon” payment of the unpaid principal and interest at the end of the loan term. The Company does not currently expect to make or arrange loans that contain provisions for negative amortization.
From time to time Company will rewrite loans requiring “balloon” payments that Company has previously made to a borrower. With respect to such rewritten loans, Company will apply the same underwriting guidelines and may not obtain a new appraisal of the property.
Construction, Rehabilitation, Home Improvement and Entitlement Loans. The Company may offer some series of Notes relating to construction loans for various types of properties, including single family residential, condominiums, multi-family residential, industrial, small commercial, foreclosed (REO), unimproved land with entitlements and small tract properties. The loan underwriting for construction, rehabilitation and unimproved land with entitlement loans is typically based upon a determined “as completed” value, i.e., the projected value of the property after the completion of the construction or rehabilitation of a property. Special builder’s risk insurance, or “course of construction” insurance, may be required by the Company in these cases.
Although construction loans will be fully funded at the closing of the series of Notes, the proceeds of a construction loan will typically be disbursed by the Company or its service provider to a construction or builder’s fund control company (which may be affiliated with the Company) as agent for the Investors. The borrowers will typically be required to enter into a construction loan agreement that governs the release of the loan proceeds. Disbursements would be made by the Company, its authorized agent, or the construction or builder’s fund control company only as portions of the construction work are completed, and only upon instructions from the Company or its agent after monitoring such progress, with the amount of disbursement based upon a percentage of work completed. Disbursements may include interest on the construction loan and advance payments to the Investors of up to three months interest or more. The amount of the disbursement to pay the contractor and the subcontractors generally would be based upon a percentage of completion of construction. In its discretion, the Company may require the retention of a percentage of the amounts paid to the contractor or subcontractors. Disbursements may be made directly to the borrower or contractors or subcontractors or jointly to the borrower and to the contractors or the subcontractors or jointly to the contractors and subcontractors.
For rehabilitation loans, a portion of the loan proceeds will typically be disbursed directly to the borrower or to a construction or builder’s fund control company, and the borrower would enter into a loan disbursement agreement that will govern the release of the portion of the loan proceeds that are intended to be used for repairs and rehabilitation. The borrower will generally be required to commence work promptly, and the Company will generally limit the initial amount released to the borrower to one-third of the total amount of the retained proceeds, although this figure can vary. In most cases, Company will require the borrower to have already completed certain line items within the scope of work before they will be entitled to receive any money. Construction or rehabilitation disbursements will be made by the Company, its servicing agent, or the construction or builder’s fund control company based on the disbursement schedule and fund control authorization. If the improvements have not been completed within the time period set forth in the construction or rehabilitation agreement, or if the Company were to determine that the balance of the loan proceeds was not sufficient to complete the construction, then the Company or its loan servicer may use any remaining retained funds to complete the construction or may require the borrower to deposit additional funds with the Company or the construction or builder’s fund control company.
Interest on this type of loan will accrue as set forth in the applicable Note and Series Note Listing. Upon any default pursuant to the corresponding borrower loan, the Company or its loan servicer may apply all or any portion of the amount in the Company’s trust account or held by the construction or builder’s fund control company to amounts due under the corresponding borrower loan.
To the extent vailable, the Company will require the borrower to obtain builder’s risk insurance, which is also known as course of construction insurance. This specialized insurance is intended to insure structures, while they are under construction. Materials, fixtures and appliances that are intended to become an integral part of the structure being built are also insured. The insurance is provided for loss resulting from accidental direct physical damage to the structure under construction. The policies generally include broad coverage, but exclude earthquake, flood and damage caused by earth movement. Some builder’s risk policies limit coverage to physical damage caused by specifically named perils, such as fire and theft. These perils would be specifically listed in the policy.
There are many levels of government regulations that may potentially affect the Company’s business.
Some states, require nonfinancial companies, such as the Company, to obtain a real estate or other license in order to make commercial loans on a regular basis. The Company does not intend to finance borrower loans in states where such licenses are required until it obtains the required license. The Company may, in the future, affiliate itself with third parties such as financial institutions in order to be able to arrange loans in jurisdictions where it might otherwise be restricted.
Some of the corresponding borrower loans may also be subject to certain provisions of the Truth-In-Lending Act and other applicable laws and rules concerning loans. These regulations impose additional disclosure and other requirements on creditors with respect to non-purchase money home equity loans secured by the borrower’s principal dwelling with high interest rates or high up-front fees and charges where the loan funds are primarily used for personal, household or consumer purposes. (See “Risk Factors.”)
Investing in the Notes involve a high degree of risk. In deciding whether to purchase Notes, you should carefully consider the following risk factors. Any of the following risks could have a material adverse effect on the value of the Notes you purchase and could cause you to lose all or part of your initial purchase price or could adversely affect future payments you expect to receive on the Notes. Only investors who can bear the loss of their entire purchase price should purchase Notes.
Payments on the Notes depend entirely on payments the Company receives on corresponding borrower loans. If a borrower fails to make any payments on the corresponding borrower loan related to your Note, payments on your Note will be correspondingly reduced.
The Company will only make payments pro rata on a series of Notes after it receives a borrower’s payment on the corresponding borrower loan. The Company also will retain from the funds received from the relevant borrower and otherwise available for payment on the Notes any non-sufficient funds fees and the amounts of any attorneys’ fees or collection fees it, a third-party servicer or collection agency imposes in connection with collection efforts. Under the terms of the Notes, if the Company does not receive any or all payments on the corresponding borrower loan, payments on your Note will be correspondingly reduced in whole or in part. If the relevant borrower does not make a payment on a specific monthly loan payment date, no payment will be made on your Note on the corresponding succeeding Note payment date.
The Notes are special, limited obligations of the Company only and are not secured by any collateral or guaranteed or insured by any third party.
While the corresponding borrower loans (or the components thereof) will be secured by a mortgage, deed of trust, security agreement, or legal title, the Notes themselves are special, limited obligations of the Company and will not represent an obligation of the borrower or any other party except the Company. The Notes are not secured by any collateral and are not guaranteed or insured by any governmental agency or instrumentality or any third party. Investors in the Notes may look only to the Company for payment of the Notes. Furthermore, if a borrower fails to make any payments on the corresponding borrower loan, Investors in the related Notes will not receive any payments on their respective Notes. Investors will not be able to pursue collection against the borrower and are prohibited from contacting the borrower about the defaulted borrower loan.
The Company does not have significant historical performance data about performance on the corresponding borrower loans. Loss rates on the corresponding borrower loans may increase and prior to investing you should consider the risk of non-payment and default.
The Company is in the early stages of its development and has a limited operating history. The Company’s management has experience in real estate loans, debt instruments and related loan syndication, but the performance of previous borrower loans may not be indicative of the future performance of the Company’s borrower loans relating to corresponding Notes, and the Company does not yet know what its long-term loan loss experience will be.
If payments on the corresponding borrower loans relating to your Notes become past due or otherwise in default, it is likely you will not receive the full principal and interest payments that you expect to receive on your Notes, and you may not recover your original purchase price.
If a corresponding borrower loan becomes past due or is otherwise in default, the Company may need to foreclose on the property underlying the corresponding borrower loan at a foreclosure sale unless the property is purchased by a third party bidder at the foreclosure sale. The Company or one of its affiliates may act as manager for the foreclosed real estate, and the costs of foreclosure will be advanced by Company, but if the Company cannot quickly sell such property and the property does not produce any significant income, the cost of owning, maintaining, and selling the property would reduce any proceeds gained through the sale. If the foreclosed real estate cannot be sold for net proceeds that can fully return the outstanding amount of the related Notes, Investors will lose part or all of their investment.
For some non-performing borrower loans, the Company may not be able to recover any of the unpaid loan balance and, as a result, an Investor who has purchased a corresponding Note may receive little, if any, of the unpaid principal and interest payable under the Note. You must rely on the collection efforts of the Company or the applicable collection agency to which such corresponding borrower loans are referred. You are not permitted to attempt to collect payments on the corresponding borrower loans in any manner.
You will not receive any payments after the final maturity date of the Notes.
The initial maturity date of the Notes may be extended in certain circumstances to allow the Note holder to receive any payments that the Company receives during such period on the corresponding borrower loan after the maturity of the corresponding borrower loan. However, if we receive any principal or interest payments from a corresponding borrower loan after such extended final maturity date of a Note, we may retain 100% of such payments and are not obligated to distribute those payments to you with respect to your Note. A conflict of interest could thus exist, as significant delays in receiving borrower funds would result in additional money coming to us. Since the confidence of Investors is, however, of primary importance to the success of the Company, diligent collection efforts and success thereon will generally be in the Company’s best interest.
Loss rates on the corresponding borrower loans may increase as a result of economic conditions beyond the Company’s control and beyond the control of the borrower.
Borrower loan loss rates may be significantly affected by economic downturns or general economic conditions beyond the Company’s control and beyond the control of individual borrowers. In particular, loss rates on corresponding borrower loans may increase due to factors such as (among other things) local real estate market conditions, prevailing interest rates, the rate of unemployment, the level of consumer confidence, the value of the U.S. dollar, energy prices, changes in consumer spending, the number of personal bankruptcies, disruptions in the credit markets and other factors.
The success of each borrower loan is dependent on the performance of the borrower and other third parties over which we have no control.
With respect to a particular property, the borrower is responsible for various management functions that are essential to the success of the Project, including property marketing and leasing rates, payment of bills, maintenance of insurance, and property management generally. Poor management on the part of the borrower could adversely affect the financial performance of the corresponding borrower loan or expose it to unanticipated operating risks, which could reduce the property’s cash flow and adversely affect the borrower’s ability to repay the corresponding borrower loan.
Information supplied by borrowers may be inaccurate or intentionally false.
Borrowers supply a variety of information regarding the current rental income, property valuations, market data, and other information, some of which is included in the Series Note Listings. The Company makes an attempt to verify some of this information, but as a practical matter, cannot verify the majority of it, which may be incomplete, inaccurate or intentionally false. Borrowers may also misrepresent their intentions for the use of borrower loan proceeds. The Company does not verify any statements by applicants as to how loan proceeds are to be used. If a borrower supplies false, misleading or inaccurate information, you may lose all or a portion of your investment in the Note.
With the exception of loans which have a draw feature coupled with them, when the Company finances a corresponding borrower loan, its primary assurances that the financing proceeds will be properly spent by the borrower are the contractual covenants agreed to by the borrower, along with the borrower’s business history and reputation. Should the proceeds of a financing be diverted improperly, the borrower might become insolvent, which could cause the purchasers of the corresponding Notes to lose their entire investment.
Projected revenues from a property could fall short of the amounts projected.
The payment schedules with respect to many corresponding borrower loans are based on projected revenues generated by the property over the term of the corresponding borrower loan. These projections are based on factors such as expected vacancy rates, expense rates, and other projected income and expense figures relating to the property. The actual revenues generated by a property could fall short of projections due to factors such as lower-than-expected rental revenues, or greater-than-expected vacancy rates or property management expenses. In such event, the borrower’s cash flow could be inadequate to repay the corresponding borrower loan in full.
Insurance against risks faced by a property could become more costly or could become unavailable altogether.
Real estate properties are typically insured against risk of fire damage and other typically insured property casualties, but are sometimes not covered by severe weather or natural disaster events such as hurricanes, landslides, earthquakes, or floods. Changes in the conditions affecting the economic environment in which insurance companies do business could affect the borrower’s ability to continue insuring the property at a reasonable cost or could result in insurance being unavailable altogether. Moreover, any hazard losses not then covered by the borrower’s insurance policy would result in the corresponding borrower loan becoming significantly under- secured, and an Investor in a Note could sustain a significant reduction, or complete elimination of, the return and repayment of principal from that Note.
Environmental issues may affect the operation of a borrower property.
If toxic environmental contamination is discovered to exist on a property underlying a corresponding borrower loan, it might affect the borrower’s ability to repay the corresponding borrower loan and the Company could suffer from a devaluation of the loan security. To the extent that the Company is forced to foreclose and/or operate such a property, potential additional liabilities include reporting requirements, remediation costs, fines, penalties and damages, all of which would adversely affect the likelihood that Investors would be repaid on the Notes.
Of particular concern may be those properties that are, or have been, the site of manufacturing, industrial or disposal activity. These environmental risks may give rise to a diminution in value of the security property or liability for clean-up costs or other remedial actions. This liability could exceed the value of the real property or the principal balance of the related mortgage loan. For this reason, the Company may choose not to foreclose on contaminated property rather than risk incurring liability for remedial actions.
Under the laws of certain states, an owner’s failure to perform remedial actions required under environmental laws may give rise to a lien on mortgaged property to ensure the reimbursement of remedial costs. In some states this lien has priority over the lien of an existing mortgage against the real property. Because the costs of remedial action could be substantial, the value of a mortgaged property as collateral for a mortgage loan could be adversely affected by the existence of an environmental condition giving rise to a lien.
The state of law is currently unclear as to whether and under what circumstances clean-up costs, or the obligation to take remedial actions, can be imposed on a secured lender. If a lender does become liable for cleanup costs, it may bring an action for contribution against the current owners or operators, the owners or operators at the time of on-site disposal activity or any other party who contributed to the environmental hazard, but these persons or entities may be bankrupt or otherwise judgment-proof. Furthermore, an action against the borrower may be adversely affected by the limitations on recourse in the loan documents.
The Company has an incentive to fund as many corresponding borrower loans as possible, which could impair its ability to devote adequate attention and resources to collection of corresponding borrower loans.
Other than any revenue generated from the management of certain equity investment opportunities offered by the Company from time to time by the Company, substantially all of the Company’s revenues are derived from origination fees or loan rate “spreads” generated through making and arranging borrower loans and offering related series of Notes. As a result, it has an incentive to finance as many projects as possible to maximize the amount of origination fees it is able to generate. Increased project volume increases the demands on its management resources and its ability to devote adequate attention and resources to the collection of corresponding borrower loans. In the event that the Company takes on loan volumes that exceed its ability to service outstanding corresponding borrower loans, our ability to make timely payments on the Notes will suffer.
The property valuation models used by the Company in determining whether to make a corresponding borrower loan may be deficient and may increase the risk of default.
Real estate valuation is an inherently inexact process and depends on numerous factors, all of which are subject to change. Appraisals or opinions of value may prove to be insufficiently supported, and the Company’s review of the value of the underlying property in determining whether to make a corresponding borrower loan and the value of the underlying security may be based on information that is incorrect or opinions that are overly optimistic. The risk of default in such situations is increased, and the risk of loss to Investors will be commensurately greater.
The real property security for the corresponding borrower loans may decline in value.
The value of the real property security for each borrower loan will be subject to the risks generally incident to the ownership of improved and unimproved real estate, including changes in general or local economic conditions, increases in interest rates for real estate financing, physical damage that is not covered by insurance, zoning, entitlements, and other risks. Many borrowers expect to use resale proceeds to repay their borrower loan. A decline in property values could result in a borrower loan amount being greater than the property value, which could increase the likelihood of borrower default.
Although real estate assets are generally cyclical in nature, the Company’s operating history since its inception does not yet span any prolonged down cycles in the real estate market.
Loans ending with large “balloon” payments carry particular risks.
Some of the corresponding borrower loans may be interest-only loans providing for relatively small monthly payments with a large “balloon” payment of principal due at the end of the term. Borrowers may be unable to repay such balloon payments out of their own funds and will be compelled to refinance or sell their property. Fluctuations in real estate values, interest rates and the unavailability of mortgage funds could adversely affect the ability of borrowers to refinance their loans at maturity or successfully sell the property for enough money to pay off the corresponding borrower loan.
Construction and rehabilitation loans carry particular risks.
Construction and rehabilitation loans involve a number of particular risks, involving, among other things, the timeliness of the project’s completion, the integrity of appraisal values, whether or not the completed property can be sold for the amount anticipated, and the length of ultimate sale process.
If construction work is not completed (due to contractor abandonment, unsatisfactory work performance, or various other factors) and all the borrower loan funds have already been expended, then in the event of a default the Company may have to invest significant additional funds to complete the construction work. Any such investment would be recuperated by the Company prior to the Investor being paid back on the Note. If the value of uncompleted property is materially less than the amount of the construction loan, even if the work were completed, then upon a default the Company might need to invest additional funds in order to recoup all or a portion of the investment. Default risks also exist where it takes a borrower longer than anticipated either to construct or then resell the property, or if the borrower does not receive sufficient proceeds from the sale to repay the corresponding borrower loan in full.
Security of the corresponding borrower loans does not remove the risks associated with foreclosure.
Different property types involve different types of risk in terms of realizing on the collateral in the event that the borrower defaults. These risks include completion costs in the case of an incomplete project, partial resale for condominiums and tracts and lease-up (finding tenants) for multi-family residential, small commercial and industrial properties. The Company may not be able to sell a foreclosed commercial property, for example, before expending efforts to find tenants to make the property more fully leased and more attractive to potential buyers.
Moreover, foreclosure statutes vary widely from state to state. Properties underlying defaulted loans will need to be foreclosed upon in compliance with the laws of the state where such property is located. Many states require lengthy processing periods or the obtaining of a court decree before a mortgaged property may be sold or otherwise foreclosed upon. Further, statutory rights to redemption and the effects of anti-deficiency and other laws may limit the ability for the Company to timely recover the value of its loan in the event that a borrower defaults on a loan.
A bankruptcy of the borrower will prevent the Company from exercising its foreclosure remedy promptly.
If the borrower enters bankruptcy, an automatic stay of all proceedings against the borrower’s property will be granted. This stay will prevent the Company from foreclosing on the property unless relief from the stay can be obtained from the bankruptcy court, and there is no guarantee that any such relief will be obtained. Significant legal fees and costs may be incurred in attempting to obtain relief from a bankruptcy stay from the bankruptcy court and, even if such relief is ultimately granted, it may take several months or more to obtain. In such event, the Company will be unable to promptly exercise its foreclosure remedy and realize any proceeds from a property sale.
In addition, bankruptcy courts have broad powers to permit a sale of the real property free of the Company's lien, to compel the Company to accept an amount less than the balance due under the loan and to permit the borrower to repay the loan over a term which may be substantially longer than the original term of the loan.
Risks Related to the Company and the Investment Platform
The Company has a limited operating history. As companies in the early stages of development, the Company faces increased risks, uncertainties, expenses and difficulties.
The Company has a limited operating history. The Company began offering real estate investments in 11-30--0001, and has not issued Notes prior to this offering, nor has it to date directly held or serviced any borrower loans that are tied to securities such as the Notes.
For the Company to be successful, the volume of financings originated through the online platform will need to increase, which will require the Company to increase its facilities, personnel and infrastructure to accommodate the greater obligations and demands on the platform. The Company’s platform is dependent upon its website to maintain current listings and transactions in Notes. The Company also expects to constantly update its software and website, expand its customer support services and retain an appropriate number of employees to maintain the operations of its platform. If the Company is unable to increase the capacity of its platform and maintain the necessary infrastructure, you may experience delays in receipt of payments on the Notes and periodic downtime of the Company’s systems.
The Company will need to raise substantial additional capital to fund its operations, and if it fails to obtain additional funding, it may be unable to continue operations.
At this early stage in its development, the Company has funded substantially all of its operations with proceeds from private financings from individual investors. To continue the development of its platform, the Company will require substantial additional funds. To meet its financing requirements in the future, it may raise funds through equity offerings, debt financings or strategic alliances. Raising additional funds may involve agreements or covenants that restrict the Company’s business activities and options. Additional funding may not be available to it on favorable terms, or at all. If the Company is unable to obtain additional funds, it may be forced to reduce or terminate its operations. Any inability for the Company to fund operations could have a substantial and deleterious effect on the viability and operations of the Company.
The Company does not intend to provide Investors with audited financial statements.
The Company does not intend to make the large expenditures necessary to provide audited financial statements to Investors. There will be no independent certified public account reviewing the Company’s finances and Investors will thus not be in a position to independently evaluate the Company’s financial health in determining whether to purchase the Notes.
If we were to become subject to a bankruptcy or similar proceeding, the rights of the holders of the Notes could be uncertain, and the recovery, if any, of a holder on a Note may be substantially delayed and substantially less than the amounts due and to become due on the Note.
In the event of the Company’s bankruptcy or a similar proceeding, the rights of investors to continue receiving payments on the Notes could be subject to the following risks and uncertainties:
• Interest on the Notes may not accrue during a bankruptcy proceeding. Accordingly, if Investors received any recovery on their Notes, any such recovery might be based on the investors’ claims for principal and interest accrued only up to the date the proceeding commenced.
• Our obligation to continue making payments on the Notes would likely be suspended even if the funds to make such payments were available. Because a bankruptcy or similar proceeding may take months or years to complete, even if the suspended payments were resumed, the suspension might effectively reduce the value of any recovery that a holder of a Note might receive by the time such recovery occurs.
• The Notes are unsecured, and investors do not have a security interest in the corresponding borrower loans. Accordingly, the holders of Notes may be treated as general creditors and thus be required to share the proceeds of corresponding borrower loans with other general creditors of the Company.
• Because the terms of the Notes provide that they will be repaid only out of the proceeds of the corresponding borrower loans, investors might not be entitled to share in the other assets of the Company available for distribution to general creditors, even though other general creditors might be entitled to a share of the proceeds of such corresponding borrower loans.
• If a borrower has paid the Company on any corresponding borrower loans before the bankruptcy proceedings are commenced and those funds are held in the clearing account and have not been used by the Company to make payments on the Notes, there can be no assurance that the Company will be able to use such funds to make payments on the Notes.
• If a bankruptcy proceeding commences after the purchase price of Notes has been paid, holders of the Notes may not be able to obtain a return of the purchase price even if the offering proceeds have not yet been used to fund a Project.
• Our ability to transfer our obligations to a back-up entity may be limited and subject to the approval of the bankruptcy court or other presiding authority. The bankruptcy process may delay or prevent the implementation of back-up services, which may impair the collection of corresponding borrower loans to the detriment of the Notes.
If the Company were to enter bankruptcy proceedings, the operation of the Investment Platform and the activities with respect to the corresponding borrower loans and the Notes would be interrupted.
If the Company were to enter bankruptcy proceedings or were to cease operations, we would be required to find other ways to meet obligations regarding the corresponding borrower loans and the Notes. Such alternatives could result in delays in the disbursement of payments on your Notes or could require us to pay significant fees to another company that we engage to perform services for the corresponding borrower loans and the Notes.
In a bankruptcy or similar proceeding of the Company, there may be uncertainty regarding the rights of a holder of a Note, if any, to access funds sent to the Company.
If the Company became a debtor in a bankruptcy proceeding, the legal right to administer the Company funds would vest with the bankruptcy trustee or debtor in possession. In that case, investors may have to seek a bankruptcy court order lifting the automatic stay and permitting them to withdraw their funds. Investors may suffer delays in accessing their funds in any Company account as a result. Moreover, U.S. bankruptcy courts have broad powers and a bankruptcy court could determine that some or all of such funds were beneficially owned by the Company and therefore that they became available to the creditors of the Company generally.
When you commit to purchase a Note, you must commit funds toward your purchase, but the funds may not be deployed until 45 days from when the funding request for the applicable Note is fully subscribed.
Each funding request for an investment opportunity remains open for a designated time, and then the Company has up to 45 days to invest such amounts from the time that the funding request is fully subscribed. Investors’ commitments to purchase Notes are irrevocable. During the period between the time of your purchase commitment and the time when your Note is issued, you will not have access to your funds. Because your funds do not earn interest prior to the time when the Note is issued, the delay in issuance of your Note will have the effect of reducing the effective rate of return on your investment.
Borrower prepayments will extinguish or limit your ability to earn additional returns on a Note.
Prepayment by a borrower occurs when a borrower decides to pay some or all of the principal amount on the corresponding borrower loan earlier than originally scheduled. With most of the investment opportunities financed on the investment platform, the borrower may prepay all or a portion of the remaining principal amount at any time without penalty. Upon a prepayment of the entire remaining unpaid principal amount of the corresponding borrower loan, you will receive your share of such prepayment, but further interest will not accrue after the date on which the payment is made. If prevailing commercial loan rates decline in relation to the Note’s effective interest rate, the borrower may choose to prepay the corresponding borrower loan with lower-cost funds. If the borrower prepays a portion of the remaining unpaid principal balance on the corresponding borrower loan, the term for repayment of the corresponding borrower loan will not change, but you will not earn a return on the prepaid portion, and your anticipated total investment return may thus decrease. In addition, you may not be able to find a similar rate of return on another investment at the time at which the corresponding borrower loan is prepaid. See “The Notes.”
Purchasers of Notes will not have the protection of a trustee, an indenture or the provisions of the Trust Indenture Act of 1939.
Because this offering is being made in reliance on an exemption from registration under the non-public offering exemption of Section 4(2) of the Securities Act, it is not subject to the Trust Indenture Act of 1939. Consequently, purchasers of Notes will not have the protection of an indenture setting forth obligations of the Company for the protection of Note holders or a trustee appointed to represent their interests.
We rely on third-party banks and on third-party computer hardware and software. If we are unable to continue utilizing these services, our business and ability to service the corresponding borrower loans may be adversely affected.
We rely on third-party and FDIC-insured depository institutions to process our transactions, including payments of corresponding borrower loans and remittances to holders of the Notes. Under the ACH rules, if we experience a high rate of reversed transactions (known as “chargebacks”), we may be subject to sanctions and potentially disqualified from using the system to process payments. The Company also relies on computer hardware purchased and software licensed from third parties to operate the platform. This purchased or licensed hardware and software may be physically located off-site, as is often the case with “cloud services.” This purchased or licensed hardware and software may not continue to be available on commercially reasonable terms, or at all. If the Company cannot continue to obtain such services elsewhere, or if it cannot transition to another processor quickly, our ability to process payments will suffer and your ability to receive payments on the Notes will be delayed or impaired.
The Notes are restricted securities, will not be listed on any securities exchange, and no liquid market for the Notes is expected to develop.
The Notes are not being registered under the Securities Act, but rather are being offered in reliance on Rule 506 under the “non-public” offering exemption of Section 4(2) of the Securities Act. The Notes will not be listed on any securities exchange or interdealer quotation system. There is no trading market for the Notes, and we do not expect that such a trading market will develop in the foreseeable future, nor do we intend in the near future to offer any features on our platform to facilitate or accommodate such trading. Although the Notes by their terms are pre- payable at any time without penalty, there is no obligation on our part to repurchase or otherwise prepay any Notes at the election of an investor. Therefore, any investment in the Notes will be highly illiquid, and investors in the Notes may not be able to sell or otherwise dispose of their Notes in the open market. Accordingly, you should be prepared to hold the Notes you purchase until they mature.
If the security of our investors’ confidential information stored in the Company’s systems is breached or otherwise subjected to unauthorized access, your secure information may be stolen.
The Company’s investment platform may store investors’ bank information and other personally-identifiable sensitive data. The Company is compliant with payment card industry security standards. However, any accidental or willful security breach or other unauthorized access could cause your secure information to be stolen and used for criminal purposes, and you would be subject to increased risk of fraud or identity theft. Because techniques used to obtain unauthorized access or to sabotage systems change frequently and generally are not recognized until they are launched against a target, the Company and its third-party hosting facilities may be unable to anticipate these techniques or to implement adequate preventative measures. In addition, many states have enacted laws requiring companies to notify individuals of data security breaches involving their personal data.
These mandatory disclosures regarding a security breach are costly to implement and often lead to widespread negative publicity, which may cause our investors and borrowers to lose confidence in the effectiveness of our data security measures. Any security breach, whether actual or perceived, would harm our reputation, we could lose investors, and the value of your investment in the Notes could be adversely affected.
Any significant disruption in service on the Company’s website or in its computer systems could reduce the attractiveness of the investment platform and result in a loss of users.
If a catastrophic event resulted in a platform outage and physical data loss, the Company’s ability to perform its obligations would be materially and adversely affected. The satisfactory performance, reliability, and availability of the Company’s technology and its underlying hosting services infrastructure are critical to the Company’s operations, level of customer service, reputation and ability to attract new users and retain existing users. The Company’s hosting services infrastructure is provided by a third party hosting provider (the “Hosting Provider”). The Company also maintains a backup system at a separate location that is owned and operated by a third party. The Hosting Provider does not guarantee that users’ access to the Company’s website will be uninterrupted, error-free or secure. The Company’s operations depend on the Hosting Provider’s ability to protect its and the Company’s systems in its facilities against damage or interruption from natural disasters, power or telecommunications failures, air quality, temperature, humidity and other environmental concerns, computer viruses or other attempts to harm our systems, criminal acts and similar events. If the Company’s arrangement with the Hosting Provider is terminated, or there is a lapse of service or damage to its facilities, the Company could experience interruptions in its service as well as delays and additional expense in arranging new facilities. Any interruptions or delays in the Company’s service, whether as a result of an error by the Hosting Provider or other third-party error, the Company’s own error, natural disasters or security breaches, whether accidental or willful, could harm our ability to perform any services for corresponding borrower loans or maintain accurate accounts, and could harm the Company’s relationships with its users and the Company’s reputations. Additionally, in the event of damage or interruption, the Company’s insurance policies may not adequately compensate the Company for any losses that we may incur. The Company’s disaster recovery plan has not been tested under actual disaster conditions, and it may not have sufficient capacity to recover all data and services in the event of an outage at a facility operated by the Hosting Provider. These factors could prevent us from processing or posting payments on the corresponding borrower loan or the Notes, damage the Company’s brand and reputation, divert its employees’ attention, and cause users to abandon the investment platform.
The Notes limit your rights in some important respects.
To protect the Company from having to respond to multiple claims by investors in the event of an alleged breach or default with respect to a series of Notes, the Subscription Agreement restricts investors’ rights to pursue remedies individually in connection with such breach or default.
In addition, the Company may require that any claims against it be resolved through binding arbitration rather than in the courts. The arbitration process may be less favorable to investors than court proceedings and may limit your right to engage in discovery proceedings or to appeal an adverse decision.
“Events of Default” under the Note are limited to narrow circumstances.
Under the Notes, the Company’s bankruptcy or a similar event related to the Company’s insolvency is deemed to be an Event of Default, upon which the entire outstanding principal balance of the Notes and all accrued and unpaid interest thereon will become immediately due and payable. Other acts or omissions by the Company that may represent breaches of contract, including the Company’s failure to act in good faith in collecting corresponding borrower loans, do not represent Events of Default under the Notes and do not result in the entire principal balance becoming due and payable.
We are not subject to the banking regulations of any state or federal regulatory agency.
We are not subject to the periodic examinations to which commercial banks and other thrift institutions are subject. Consequently, our financing decisions and our decisions regarding establishing loan loss reserves are not subject to period review by any governmental agency. Moreover, we are not subject to regulatory oversight relating to our capital, asset quality, management or compliance with laws.
The U.S. federal income tax consequences of an investment in the notes are uncertain.
There are no statutory provisions, regulations, published rulings or judicial decisions that directly address the characterization of the Notes or instruments similar to the Notes for federal income tax purposes. However, although the matter is not free from doubt because payments on the Notes are dependent on payments on the corresponding borrower loan, the Company intends to treat the Notes as its debt instruments that have original issue discount (“OID”) for U.S. federal income tax purposes. You should be aware, however, that the U.S. Internal Revenue Service (the “IRS”) is not bound by the Company’s characterization of the Notes and the IRS or a court may take a different position with respect to the Notes’ proper characterization. For example, the IRS could determine that, in substance, each Investor owns a proportionate interest in the corresponding borrower loan for U.S. federal income tax purposes or, for example, the IRS could treat the Notes as a different financial instrument (including an equity interest or a derivative financial instrument). Any different characterization could significantly affect the amount, timing, and character of income, gain or loss recognized in respect of a Note. For example, if the Notes are treated as the Company’s equity, (1) the Company would be subject to U.S. federal income tax on income, including interest, accrued on the corresponding borrower loans but would not be entitled to deduct interest or OID on the Notes, and (2) payments on the Notes would be treated by the holder for U.S. federal income tax purposes as dividends (that may be ineligible for reduced rates of U.S. federal income taxation or the dividends-received deduction) to the extent of the Company’s earnings and profits as computed for U.S. federal income tax purposes. A different characterization may significantly reduce the amount available to pay interest on the Notes. You are strongly advised to consult your own tax advisor regarding the U.S. federal, state, local and non-U.S. tax consequences of the purchase, ownership, and disposition of the Notes (including any possible differing treatment of the notes). For a discussion of the U.S. federal income tax consequences of an investment in the Notes, see “Certain U.S. Federal Income Tax Considerations.”
The Company’s ability to pay principal and interest on the Notes may be affected by its ability to match the timing of its income and deductions for U.S. federal income tax purposes.
You should be aware that the Company’s ability to pay principal and interest on a Note may be affected by its ability, for U.S. federal income tax purposes, to match the timing of income it receives from a corresponding borrower loan that it holds and the timing of deductions that it may be entitled to in respect of payments made on the Notes that it issues. For example, if the Notes are treated as contingent payment debt instruments for U.S. federal income tax purposes but the corresponding borrower loans are not, there could be a potential mismatch in the timing of the Company’s income and deductions for U.S. federal income tax purposes, and the Company’s resulting tax liabilities could affect its ability to make payments on the Notes.
Risks Related to Compliance and Regulation
If the Company is required to register under the Investment Company Act or became subject to the SEC’s regulations governing broker-dealers, its ability to conduct its business could be materially and adversely affected.
The SEC heavily regulates the manner in which “investment companies” and “broker- dealers” are permitted to conduct their business activities. The Company believe it has conducted its business in a manner that does not result in it being characterized as an investment company or broker-dealer, as it does not believe that it engages in any of the activities described under Section 3(a)(1) of the Investment Company Act of 1940 or any similar provisions under state law, or in the business of (i) effecting transactions in securities for the account of others as described under Section 3(a)(4)(A) of the Securities Exchange Act of 1934 (the “Exchange Act”) or any similar provisions under state law or (ii) buying and selling securities for our own account, through a broker or otherwise as described under Section 3(a)(5)(A) of the Exchange Act or any similar provisions under state law. The Company intends to continue to conduct their business in such manner. If, however, it is deemed to be an investment company or a broker-dealer, it may be required to institute burdensome compliance requirements and its activities may be restricted, which would affect its business to a material degree.
Increased regulatory focus could result in additional burdens on our business.
The financial industry is becoming more highly regulated. There has been, and may continue to be, a related increase in regulatory investigations of the trading and other investment activities of alternative investment funds. Such investigations may impose additional expenses on us, may require the attention of senior management and may result in fines if we are deemed to have violated any regulations.
Corresponding borrower loans may be subject to a variety of onerous regulations, including the Truth-In-Lending Act
Some of the corresponding borrower loans may also be subject to certain provisions of the Truth-In-Lending Act and other applicable laws and rules concerning loans. These provisions impose additional disclosure and other requirements on creditors with respect to non-purchase money home equity loans secured by the borrower’s principal dwelling with high interest rates or high up-front fees and charges where the loan funds are primarily used for personal, household or consumer purposes. In general, these home equity loans have annual percentage rates over eight percent (8%) greater than the yield on Treasury Securities of comparable maturity and/or fees and points which exceed the greater of six percent (6%) of the total loan amount. These provisions can impose specific statutory liabilities upon creditors who fail to comply with their provisions and may affect the enforceability of the related loans. In addition, any assignee of the creditor would generally be subject to all claims and defenses that the consumer could assert against the creditor, including, without limitation, the right to rescind the home equity loan. Furthermore, certain states and cities have enacted or may enact certain statutes and ordinances designed to discourage so-called “predatory” lending practices by mortgage lenders, usually involving persuading a borrower to accept a larger loan than is needed at a higher interest rate and other costs than could reasonably be obtained from other sources. These statutes and ordinances place an almost insurmountable burden of proof on the lender to justify its loan terms and lending practices, at the risk of rendering the loan unenforceable.
As Internet commerce develops, federal and state governments may adopt new laws to regulate Internet commerce, which may negatively affect our business.
As Internet commerce continues to evolve, increasing regulation by federal and state governments becomes more likely. Our business could be negatively affected by the application of existing laws and regulations or the enactment of new laws applicable to lending. The cost to comply with such laws or regulations could be significant and would increase our operating expenses, and we may be required to pass along those costs to our investors in the form of increased fees. In addition, federal and state governmental or regulatory agencies may decide to impose taxes on services provided over the Internet. These taxes could discourage the use of the Internet as a means of commercial financing, which would adversely affect the viability of our platform.
Laws intended to prohibit money laundering may require the Company to disclose investor information to regulatory authorities.
The Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “PATRIOT Act”)requires that financial institutions establish and maintain compliance programs to guard against money laundering activities, and requires the Secretary of the U.S. Treasury (“Treasury”) to prescribe regulations in connection with anti-money laundering policies of financial institutions. The Financial Crimes Enforcement Network (“FinCEN”), an agency of the Treasury, has announced that it is likely that such regulations would subject certain pooled investment vehicles to enact anti-money laundering policies. It is possible that there could be promulgated legislation or regulations that would require the Company or its service providers to share information with governmental authorities with respect to prospective investors in connection with the establishment of anti-money laundering procedures. Such legislation and/or regulations could require the Company to implement additional restrictions on the transfer of the Notes. The Company reserves the right to request such information as is necessary to verify the identity of prospective Investors and the source of the payment of subscription monies, or as is necessary to comply with any customer identification programs required by FinCEN and/or the U.S. Securities and Exchange Commission. In the event of delay or failure by a prospective investor to produce any information required for verification purposes, an application for or transfer of the Notes may be refused.
Risk of Including Foreign Investors
The Company may accept Investors who are “Non-U.S. Persons,” in which case interest payments made to such an investor by the Company could be subject to withholding taxes. In the event that the Company fails to properly withhold on such payments, the Company could remain liable for a Non-U.S. Person’s individual tax liabilities. There is a further risk that a Non-U.S. Person Investor could be named on the Treasury’s list of “Specially Designated Nationals,” “Blocked Persons,” or “Sanctioned Countries or Individuals,” which, if undiscovered, could result in an enforcement action against the Company by the Treasury and/or other federal agencies. In order to mitigate these possibilities, the Company will conduct due diligence on each Non-U.S. Person it admits as an Investor in the Notes, and will attempt to determine whether there are any security restrictions on its admissions, or applicable withholding taxes, at the time of its subscription.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Memorandum contains forward-looking statements that involve substantial risks and uncertainties. All statements, other than statements of historical facts, included in this Memorandum regarding real estate investments, real estate companies, our strategy, future operations, future financial position, future revenue, projected costs, prospects, plans, objectives of management and expected market growth are forward-looking statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “will,” “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. These forward- looking statements include, among other things, statements about:
• expected rates of return and interest rates;
• the attractiveness of our platform;
• our financial performance;
• regulatory developments; and
• our estimates regarding expenses, future revenue, capital requirements and needs for additional financing.
We may not actually achieve the plans, intentions or expectations disclosed in forward- looking statements, and you should not place undue reliance on forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in forward-looking statements. We have included important factors in the cautionary statements included in this Memorandum, particularly in the “Risk Factors” section, that could cause actual results or events to differ materially from forward-looking statements contained in this prospectus. Forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make.
You should read this Memorandum completely and with the understanding that actual future results may be materially different from what we expect. We do not assume any obligation to update any forward- looking statements, whether as a result of new information, future events or otherwise, except as required by law.
USE OF PROCEEDS
The Company will use the proceeds of each series of Notes to facilitate the funding of the corresponding borrower loan.
PLAN OF DISTRIBUTION
The Notes will be offered only by the Company through the online website platform athttp://noteinvest.com.
The Company provides a marketplace that allows accredited investors to become equity or debt holders in real estate opportunities that may have been historically difficult to access for some such investors. Through the use of the Company‘s online website platform, investors can browse and screen real estate investments, view details of an investment and sign legal documents online.
The investment platform was designed to, among other things, benefit investors because of the relatively low minimum investments needed (sometimes as little as $5,000) when pools of such investors are aggregated together in this way, and because such smaller individual investment amounts allow investors to diversify their investment portfolio across a greater number of investment opportunities. The platform was also designed to help borrowers accelerate their access to desired funds.
Key drivers of online real estate investment opportunities directed toward accredited investors include:
• The possibility of lower rates and better terms for borrowers compared to traditional sources of real estate lending, such as commercial banks;
• A new asset class for investors with the possibility of attractive risk-adjusted returns available for a smaller minimum investment amount than has historically been available;
• A convenience and ease of use that allows investors to access real estate investment opportunities from their desktop or mobile computing device while also potentially earning attractive returns; and
• Growing acceptance of the Internet as an efficient and convenient forum for consumer transactions.
The Company was formed as a on . On , the Company opened its investment platform online.
For persons who first confirm (or have previously confirmed) their status as accredited investors, the Company’s website will contain updated information on the total amounts of monies raised through the Company and other updated information about the Company and its business activities. From time to time, the Company may also post (but has no obligation to post) on its website pertinent information about its financial condition, business activities and investment results. Investors can review such information as it is posted from time to time by the Company on its website.
The Company’s headquarters are located at 205 Worth Avenue Suite #301.
The Kajaine Capital Inc management team includes the following:
Anand is the CEO and Founder of Note Invest which launched in 2014. He is a well-rounded CEO, with experience in many industries including the fields of automotive, retail, medical technology, real estate and financial services. After graduating from Queen Elizabeth Boys School, the highest ranked school in the United Kingdom, he studied Business Studies at North London Business School, through her Majesty's Government Business Link Programme. With a strong passion for business, Anand continued his executive education at Harvard Business School. Anand has years of experience in the corporate world, serving as the CEO of many turn-around and start-up companies. Anand has an eye for moment-in-time business opportunities and he has built multiple companies from start-up to multi-million dollar revenues
Scott is a founding member of the Note Invest team. Scott has more than 25 years of experience in business management and marketing. Scott is most known for his racing career where he is a decorated and accomplished driver in both the IndyCar and American Le Mans series. Scott started his own successful racing team in 2009 and maintained a staff of more than 25 full time employees with skill sets as diverse as engineers and logisticians. Scott is also a serial entrepreneur with years of experience in a highly diverse portfolio of investments. These investments include commercial and residential Real Estate development opportunities as well as secondary mortgages and distressed properties. For Note Invest, Scott is responsible for managing Strategic Partnerships, Marketing and Advertising Strategy, Public Relations as well as setting the long-term strategy and goals for the company.
Our website and supporting services run on a cloud-based platform. The Company owns, operates and maintains elements of this system, but significant elements of the system are operated by third parties that the Company does not control. In particular, a significant portion of the system is hosted by a third party host (the “Hosting Service”), which uses multiple locations. The Hosting Service provides the Company with computing, storage capacity, and other services pursuant to an agreement that continues until terminated by either party. The Hosting Service may terminate the agreement without cause by providing 30 days written notice, and may terminate the agreement immediately upon notice to the Company for cause, including any material default or breach of the agreement by the Company. The agreement requires the Hosting Service to provide the Company with the Hosting Service’s standard computing and storage capacity and related support in exchange for timely payment by the Company. The Company also maintains backups at a separate region within its cloud infrastructure. It backs up all customer data daily and replicates this data to a separate region within its cloud infrastructure via an encrypted connection.
The Company continuously monitors the performance and availability of its platform. It has a scalable infrastructure that utilizes standard techniques such as load-balancing and redundancies. It has developed its architecture to work effectively in a flexible cloud environment that has a high degree of elasticity to enable it to quickly respond to significant changes in demand.
The Company processes electronic deposits and payments by originating ACH transactions. The investment platform hosted for us by the Company is designed and built as a highly scalable, multi-tier, redundant system. The platform incorporates technologies designed to prevent any single point of failure within the infrastructure from taking the entire system offline. The Company maintains a complete backup of its website and supporting services within a separate region of its cloud infrastructure in order to minimize service disruptions in the event of significant regional outages.
Data Integrity and Scalability
All sensitive data that is transmitted to and from our customers and service providers is transacted using a secure transport protocol. Communication of sensitive data via the web site to its customers is secured utilizing SSL 128-bit enabled encryption certificates provided by GoDaddy.com, LLC. Communication of sensitive data with the Company’s service providers is secured utilizing authenticated SSL 128-bit encryption and SSH protocols depending on the requirements. In the event of disaster, data is repeatedly stored securely within a separate region of the Company’s cloud infrastructure.
Access to the data and services by the Company’s employees is restricted based upon a least-privilege principle such that employees have access only to the information and systems needed to perform their function. Logging and monitoring of host systems is done in real-time to a centralized database with web based reporting and additional notification to the appropriate staff for any remediation.
The Company collects nonpublic personal information from several sources, including Investor applications, authorized verifications, credit reporting agencies, and title insurance companies. The Company’s privacy policies with respect to such information are set forth on its website at .
The Company’s business is highly competitive. The Company faces competition for borrowers from traditional sources such as other real estate brokers, mortgage loan brokers, and from other lenders, including commercial banks, savings and loan associations and credit unions. The Company also competes against other finance companies and other lenders whose loan structures and fee schedules might vary from those of traditional banking institutions.
The Company believes that its standards for loan approvals, especially regarding the expertise of borrowers in completing construction, repairs and/or rehabilitation of properties, allow it to be more creative in structuring loans than most of the foregoing types of lenders. The Company also believes that its ability to quickly evaluate borrowers and their loan applications and to offer borrowers flexible loan terms and quick fund closings allows it to approve some mortgage loans typically rejected by depository institutions. For example, many depository institutions generally restrict their residential real estate secured loans to loans that conform strictly to the standards for loan approval published by the Federal National Mortgage Association. Furthermore, many depository institutions adhere to loan approval procedures, involving loan committees or other layered decision-making requirements that delay loan approvals and thus give the Company a competitive advantage in its simplified approval process.
Because the interest rates and origination fees charged by depository institutions are typically lower than those charged by Company, Company does not expect to compete successfully for mortgage loans that would be readily approved and made by such depository institutions.
Conflicts of Interest
The Company reserves the right to acquire properties in foreclosure, including properties that were subject to loans originated or funded by the Company relating to the Notes described in this Memorandum. The Company may serve as the original or substituted trustee of a deed of trust and may be entitled to all or some portion of the statutory trustee fees upon foreclosure (i.e. the fees that would otherwise be payable or paid to a third party serving as the trustee).
The Company may arrange and service other loans for other investors at the same time that Notes are being offered to Investors (such loans may not be part of this offering), and these loans may be more secure or more profitable than the loans funded pursuant to this offering. In addition, the Company may also arrange multiple loans for a single borrower. Where a borrower with multiple loans arranged by the Company defaults, the Company may choose or be required to enforce or forbear from enforcing this loan to the detriment of the Investors while not enforcing or forbearing on another loan with the same borrower arranged by the Company and managed or administered by the Company.
The Company may provide some loans for short-term purposes. This type of lending will typically occur through a bridge financing facility between the Company and affiliates of the Company. In some instances the Company may provide bridge financing in order for escrow to be closed on an underlying borrower loan, so that the listing can remain active on the investment platform until the listing is fully funded.
The Company or an affiliate may itself purchase or fund Notes. The Company or its affiliate will hold all such Notes in parity with the other Investors and will have the same rights, as any other Investor. As such, the Company may have interests in the loan as both the lender on the loan as well as an Investor in the Notes.
Some corresponding borrower loans originated by the Company may provide for prepayment charges to be imposed on the borrower in the event of certain early payments on the loans. Such charges are typically allowed by applicable law. If a corresponding borrower loan does contain a prepayment charge, the Investors and/or the Company would be entitled to keep the charge as is described in the Series Note Listing for the applicable loan.
Some of the investors and principals in the Company are affiliated with or part of entities or organizations with which the Company may hold a past, present or future business or commercial relationship. The Company may, in its sole discretion, conduct business with such affiliated parties, and without any notice or disclosure thereof to Investors. These arrangements may create a potential conflict of interest for Investors.
Evaluation and Pricing of Financing Opportunities
The financing of each corresponding borrower loan generally commences with an individual or real estate investment or development company requesting financing from the Company. The amount financed generally ranges from $50,000 to $1,000,000, and the term of the indebtedness generally ranges from six months to five years.
The Company reviews the proposed investment opportunity and pursues debt investment opportunities where the total amount of the loan will generally not exceed a certain percentage (the “loan-to-value ratio”) of the value of the property securing the loan, as set forth below:
Type of Property
Improved Commercial or Residential
New Construction; Commercial or Residential
65% (based on after- completed value)
Rehabilitation; Commercial or Residential
70% (based on after-
Single-family residentially zoned lot or parcel
which has installed offsite improvements including drainage, curbs, gutters, sidewalks, paved roofs, and utilities as mandated by the political subdivision having jurisdiction over the lot or parcel.
Land and Entitlement
Notwithstanding the foregoing, the loan-to-value ratio for a loan may exceed the foregoing percentages if, in the reasonable judgment of the Company, a higher loan amount is warranted by the circumstances of the particular loan.
The Company will sometimes retain a licensed independent appraiser to assist with its confirmation of a property’s fair market value. In other cases, the Company may rely on opinions of value from other sources, such as the price of a recent sale of that particular property or comparable properties and an opinion of value from the Company itself, the opinion of value provided by a lender the Company purchased the loan from, or a real estate broker knowledgeable in the area where the property is located. In some cases, however, the Company will determine that the cost or time to obtain an independent certified appraisal is not warranted.
The appraisal or evaluation for construction loans, rehabilitation loans and entitlement loans will be prepared on either an “after-completed” basis , i.e., assuming that the entitlements or the improvements for which the loan is obtained will be completed or on an “as-is” basis if Company is not holding back any monies for rehabilitation or construction. The appraiser may also assume that all public improvements to be funded by special assessment district bonds will be completed as proposed and that the property will be marketed and sold in the manner planned by the borrower. In the case of a construction loan, rehabilitation loan or entitlement loan, the loan-to-value ratio as estimated in the appraisal or evaluation and the budget for the project may exceed the loan-to-value ratios listed above at times during the term of the loan. This may occur because the appraisal or evaluation may be based upon the value of the property when the construction or improvements are completed or the entitlements obtained; however, before the construction, improvements or entitlements are completed, the value of the property will generally be less than the “as completed” appraised or evaluated value.
The interest rate that the Company charges a borrower and other loan terms are based on negotiations with the borrower. The company performs its own underwriting analysis, in its sole discretion, with respect to all corresponding borrower loans. However, Investors should perform their own respective due diligence and should not rely on any evaluation or analysis performed by the Company. Investors should independently assess the prospects of risks associated with any investment, including, without limitation, repayment risk associated with the borrower, market risk associated with the property, value of the property as collateral, and regulatory and environmental risks.
If the Company makes a potential corresponding borrower loan the subject of an offering of a series of Notes, the borrower must maintain appropriate property casualty insurance, and the Company may (but will not always) be named as loss payee on any such. Any payment made on such policies may be used to repair the property or to reduce the outstanding balance on the corresponding borrower loan and thus result in the Company paying down the balance of the applicable series of Notes. The Company does not generally require that the borrower maintain property damage coverage for landslides, earthquakes, floods, or similar natural disaster events. Any hazard losses not then covered by the borrower’s insurance policy would result in the corresponding borrower loan becoming significantly under-secured, and an Investor in a Note could sustain a significant reduction, or complete elimination of, the return and repayment of principal from that Note.
A borrower whose loan request is allocated to the platform will have their loan and property information posted on the platform as part of the Series Note Listing for the corresponding offering of Notes. Investors can review all the various investment listings on the platform and make a commitment towards any listing they wish to help fund, including a Series Note Listing. If a Series Note Listing receives enough lender member commitments to be funded, the Company (or, in some instances, an affiliated financial institution) will originate the loan requested and, at the same time, the Company will sell the series of Notes relating to the corresponding borrower loan to the Investors that made a commitment therefor pursuant to the Series Note Listing.
For some loans, the Company will issue the corresponding borrower loan directly. In other cases, the Company may enter into a relationship with one or more third parties to issue the corresponding borrower loan, with the Company then purchasing the corresponding borrower loan (or a participating interest therein) from the third party. In other cases, the Company may purchase all or a portion of a borrower loan that had been previously been issued by a third party.
Borrower loans are obligations of the borrower to the Company (or, in a participation arrangement, to the lead lender). Borrower loans (or the components thereof) are generally secured by a first lien security interest such as a mortgage, deed of trust or security deed on the underlying real estate. If a borrower defaults on the loan before the maturity date, the Company (or lead lender) will, in its or their discretion, seek to foreclose on the property or take other actions to recover payment on the corresponding borrower loan. Any funds the Company recovers as a result of such actions prior to maturity of the related series of Notes will be paid to the holders of such Notes pro rata, net of any applicable collection fees or investor incentives.
Our payment obligations under the Notes are unsecured, and investors do not have a security interest in the corresponding borrower loans.
Purchase of Notes
Any series of Notes offered by us will be available for sale to accredited investors who provide sufficient funds to make the desired investment and, if any state residence limitations are applicable for such offering, who reside in the permitted states for such offering. The Notes will be issued when the corresponding borrower loan closes, generally within 45 days from the end of the listing period or on such earlier date as the offering may have become fully subscribed.
An Investor may purchase a Note by opening the Series Note Listing on our website and indicating the amount he, she or it wishes to invest, subject to the maximum investment amount, if any, imposed by the investor’s state of residence. The investor will then be prompted to confirm his or her “order.” After such confirmation, the order will represent the investor’s binding commitment to purchase the Note, if the funds provided are sufficient to complete the purchase.
In the event we are required to amend this Memorandum or the applicable Series Note Listing -- for example, as a result of material changes to the information contained herein -- we will post a notice on the web page where the series of Notes are listed, in each case advising investors that a material amendment to the Memorandum or Series Note Listing is pending, and applicable instructions and requirements related thereto.
Upon the closing of the corresponding borrower loan, the principal amount previously committed by the investor under the applicable Series Note Listing is deemed invested in a Note of that series. Notes are issued electronically, in “book entry” form, by means of registration of each investor’s ownership in our records.
The Company or its affiliates will earn and be paid certain loan origination fees, generally ranging from 0% to 5% of the principal amount of each corresponding borrower loan, from the borrower. Such fees may be funded from the loan proceeds. The amount of the loan origination fee depends upon market conditions and is payable at the time the loan closes.
The Company or its affiliates will also be paid an economic “spread” which will be the difference between the Note interest rate paid to Investors and the interest rate that borrowers pay to the Company under the corresponding borrower loan. Each Series Note Listing will describe the terms of the corresponding borrower loan as well as the terms of the Note.
To the extent that the Company (or an affiliate or a third party) charges the borrower certain loan origination fees (“points”), the principal amount of the loan may be increased, which may adversely affect the ability of the borrower to repay the loan. In addition, loan fees or points, (when added to the amount of the loan) will increase the gross amount of the loan thereby decreasing the borrower’s equity in his or her property and correspondingly decreasing the Investor’s security.
If the loan is a construction or rehabilitation loan, the Company (or an affiliate or a third party) may be reimbursed for its expenses and receive builder control fees for inspecting construction progress and monitoring disbursements from a loan disbursal account (if any). These fees and expenses generally will not exceed three percent (3%) of the principal amount of the loan and will be payable by the borrower and may be payable out of loan or sales proceeds.
Certain provisions of applicable law may limit Company’s compensation with respect to loans secured by single dwelling units in a condominium or a cooperative or a residential building containing four units or less.
Certain series of Notes may also entitle the Company to a management fee. Any such management fees will be disclosed in the Series Note Listing.
The Company’s above-described compensation is not determined by arm’s-length negotiations with any Investor.
DOCUMENTATION AND INFORMATION AVAILABLE TO THE INVESTOR
In addition to this Memorandum, the following documentation will be available to each Investor on the Company’s online website platform:
1. The Note and/or any related certificate, or a copy of the same,
2. Subscription Agreement for the Investor to complete, sign, and return to Company, and,
3. Series Note Listing.
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion sets forth the material U.S. federal income tax considerations generally applicable to purchasers of the Notes. This discussion is based on the U.S. Internal Revenue Code of 1986, as amended (the “Code”), Treasury regulations promulgated thereunder (the “Treasury Regulations”), administrative pronouncements of the U.S. Internal Revenue Service (the “IRS”) and judicial decisions, all as currently in effect and all of which are subject to change and to different interpretations. Changes to any of the foregoing authorities could apply on a retroactive basis, and could affect the U.S. federal income tax consequences described below.
This discussion does not address all of the U.S. federal income tax considerations that may be relevant to a particular Note holder’s circumstances, and does not discuss any aspect of U.S. federal tax law other than income taxation or any state, local or non-U.S. tax consequences of the purchase, ownership and disposition of the Notes. This discussion applies only to investors who purchase the Notes for cash at original issue and who hold the Notes as capital assets within the meaning of the Internal Revenue Code (generally, property held for investment). This discussion does not address U.S. federal income tax considerations applicable to Note holders that may be subject to special tax rules, such as (without limitation):
• securities dealers or brokers, or traders in securities electing mark-to-market treatment;
• banks, thrifts or other financial institutions;
• insurance companies;
• regulated investment companies or real estate investment trusts;
• tax-exempt organizations;
• persons holding Notes as part of a “straddle,” “hedge,” “synthetic security” or “conversion transaction” for U.S. federal income tax purposes, or as part of some other integrated investment;
• partnerships or other pass-through entities;
• persons subject to the alternative minimum tax;
• certain former citizens or residents of the United States;
• Non-U.S. Holders (as defined below); and
• “U.S. Holders” (as defined below) whose functional currency is not the U.S. dollar.
As used herein, a “U.S. Holder” is a beneficial owner of Notes that is, for U.S. federal income tax purposes, (i) an individual citizen or resident of the United States, (ii) a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (iii) an estate whose income is subject to U.S. federal income tax regardless of its source, or (iv) a trust if (A) a United States court has the authority to exercise primary supervision over the administration of the trust and one or more U.S. persons (as defined under the Code) are authorized to control all substantial decisions of the trust or (B) it has a valid election in place to be treated as a U.S. person. A “Non-U.S. Holder” is any beneficial owner of a Note that is not a U.S. Holder. If a partnership (or other entity treated as a partnership for U.S. federal income tax purposes) holds Notes, the U.S. federal income tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. A partnership holding Notes, and partners in such a partnership, should consult their own tax advisors with regard to the U.S. federal income tax consequences of the purchase, ownership and disposition of the Notes by the partnership.
THIS DISCUSSION OF THE MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED TO BE, LEGAL OR TAX ADVICE TO ANY PARTICULAR PERSON. ACCORDINGLY, ALL PROSPECTIVE INVESTORS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE U.S. FEDERAL, STATE, LOCAL AND NON-U.S. TAX CONSEQUENCES RELATING TO THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES BASED ON THEIR PARTICULAR CIRCUMSTANCES.
TO ENSURE COMPLIANCE WITH U.S. INTERNAL REVENUE SERVICE CIRCULAR 230, PROSPECTIVE INVESTORS ARE HEREBY NOTIFIED THAT: (A) ANY DISCUSSION OF U.S. FEDERAL TAX ISSUES CONTAINED OR REFERRED TO IN THIS DOCUMENT IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, BY PROSPECTIVE INVESTORS FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON THEM UNDER THE U.S. FEDERAL TAX LAWS; (B) SUCH DISCUSSION IS WRITTEN TO SUPPORT THE PROMOTION OR MARKETING BY THE COMPANY OF THE TRANSACTIONS OR MATTERS ADDRESSED HEREIN; AND (C) PROSPECTIVE INVESTORS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
Taxation of the Notes
There are no statutory provisions, regulations, published rulings, or judicial decisions that directly address the characterization of the Notes or instruments similar to the Notes for U.S. federal income tax purposes. However, although the matter is not free from doubt, we intend to treat the Notes as our debt instruments that have original issue discount (“OID”) for U.S. federal income tax purposes. Where required, we intend to file information returns with the IRS in accordance with such treatment unless there is a change or clarification in the law, by regulation or otherwise, that would require a different characterization of the Notes.
You should be aware however, that the IRS is not bound by our characterization of the Notes and the IRS or a court may take a different position with respect to the Notes’ proper characterization. For example, the IRS could determine that, in substance, each Note holder owns a proportionate interest in the corresponding borrower loan for U.S. federal income tax purposes or, for example, the IRS could instead treat the Notes as a different financial instrument (including an equity interest or a derivative financial instrument). Any different characterization could significantly affect the amount, timing, and character of income, gain or loss recognized in respect of a Note. For example, if the Notes are treated as our equity, (i) we would be subject to U.S. federal income tax on income, including interest, accrued on the corresponding borrower loan but would not be entitled to deduct interest or OID on the Notes, and (ii) payments on the Notes would be treated by the holder for U.S. federal income tax purposes as dividends (that may be ineligible for reduced rates of U.S. federal income taxation or the dividends-received deduction) to the extent of our earnings and profits as computed for U.S. federal income tax purposes.
A different characterization may significantly reduce the amount available to pay interest on the Notes.
The following discussion assumes that the Notes will be treated as our debt instruments that have OID for U.S. federal income tax purposes. Unless otherwise specified, the following discussion assumes that the Notes will not be subject to the rules governing contingent payment debt instruments.
Taxation of Payments on the Notes
You will generally be required to accrue OID income as ordinary interest income for U.S. federal income tax purposes, regardless of your regular method of tax accounting. If you hold a Note that has a maturity date of more than one year, you will be required to accrue OID income as ordinary interest income under a “constant yield method.” Under this treatment, if a payment on a Note is not made in accordance with the payment schedule in respect of the corresponding borrower loan (for example, because of a late payment on the corresponding borrower loan), you will be required to include an amount of OID in taxable income as interest even though you have not received the actual payment from the corresponding borrower loan.
The Treasury Regulations governing OID provide special rules for determining the amount and accrual of OID for debt instruments that provide for one or more alternative payment schedules applicable upon the occurrence of contingencies. If the timing and amounts of the payments that comprise each payment schedule are known as of the issue date, and based on all the facts and circumstances as of the issue date, a single payment schedule for a debt instrument, including the stated payment schedule, is significantly more likely than not to occur, the amount and accrual of OID is determined based on that payment schedule. In addition, under the applicable Treasury Regulations, remote and/or incidental contingencies may generally be ignored. A contingency relating to the amount of a payment is incidental if, under all reasonably expected market conditions, the potential amount of the payment is insignificant relative to the total expected amount of the remaining payments on the debt instrument. A contingency relating to the timing of a payment is incidental if, under all reasonably expected market conditions, the potential difference in the timing of the payment is insignificant.
In the event that any of the Notes are subject to a management fee payable by an Investor to the Company, we believe that any such management fee should be treated for U.S. federal income tax purposes as an offset against interest payable under the Notes, as a reduction in the yield on the Notes, with the Notes representing our indebtedness. If the IRS were to determine that, in substance, each Note holder owns a proportionate interest in the corresponding borrower loan for U.S. federal income tax purposes, and if the IRS were to determine that the Note holder paid us such a management fee for investment related services, then the IRS might also determine that such a management fee would be an investment expense of the Note holder. If such a management fee were to be characterized by the IRS as an investment expense of a Note holder rather than being characterized as an adjustment to the yield on the Notes, then purchasers of Notes who are individuals would be able to deduct such management fees only as a miscellaneous itemized deduction, deductible only to the extent in excess of two percent of adjusted gross income for a particular year.
The Notes provide for one or more alternative payment schedules because we are obligated to make payments on a Note only to the extent that we receive payments on the corresponding borrower loan. The payment schedule for each Note provides for payments of principal and interest on the Note in accordance with the payment schedule for the corresponding borrower loan. In addition to scheduled payments, we will prepay a Note to the extent that a borrower prepays the loan corresponding to the Note, and we will pay late fees collected on a corresponding borrower loan to the holders of the corresponding Note. In addition, as described above, certain series of Notes may feature additional contingent payment provisions reflecting a similar feature in a corresponding borrower loan, whereby Investors may be able to realize additional payments upon the occurrence of certain events during the life of the corresponding borrower loan. Notwithstanding such contingencies, we intend to use the payment schedule of a Note (disregarding such contingencies) to determine the amount and accrual of OID on the Note because we believe that a Note is significantly more likely than not to be paid in accordance with such payment schedule and/or the likelihood of nonpayment, prepayment, late payment or additional contingent payments on the loan corresponding to such Note will be remote or incidental. If in the future we determine that the previous sentence does not apply to a Note, we anticipate that we will be required to determine the amount and accrual of OID for such Note pursuant to the rules applicable to contingent payment debt instruments, which are described below, and we shall so notify you.
OID on a Note will equal the excess of the Note’s “stated redemption price at maturity” over its “issue price.” The stated redemption price at maturity of a Note includes all payments of principal and stated interest on the Note under the payment schedule of the Note (net of any management fee). The issue price of a Note will generally equal the principal amount of a Note.
The amount of OID includible in income for a taxable year is the sum of the “daily portions” of OID with respect to the Note for each day during the taxable year in which the holder held the Note. The daily portion of OID is determined by allocating to each day of any accrual period within a taxable year a pro rata portion of an amount equal to the product of such Note’s adjusted issue price at the beginning of the accrual period and its yield to maturity (properly adjusted for the length of the period). We intend to use 30-day accrual periods. The adjusted issue price of a Note at the beginning of any accrual period should be its issue price, increased by the aggregate amount of OID previously accrued with respect to the Note, and decreased by any payments of principal and interest previously made on the Note (net of any management fee). A Note’s yield to maturity should be the discount rate that, when used to compute the present value of all payments of principal and interest to be made on the Note under the payment schedule of the Note (net of any management fee), produces an amount equal to the issue price of such Note.
In the event that any of the Notes are subject to a management fee payable by an Investor to the Company, we believe that any such management fee should be treated for U.S. federal income tax purposes as an offset against interest payable under the Notes, as a reduction in the yield on the Notes, with the Notes representing our indebtedness. If the IRS were to determine that, in substance, each Note holder owns a proportionate interest in the corresponding borrower loan for U.S. federal income tax purposes, and if the IRS were to determine that the Note holder paid us such a management fee for investment related services, then the IRS might also determine that such a management fee would be an investment expense of the Note holder. If such a management fee were to be characterized by the IRS as an investment expense of a Note holder rather than being characterized as an adjustment to the yield on the Notes, then purchasers of Notes who are individuals would be able to deduct such management fees only as a miscellaneous itemized deduction, deductible only to the extent in excess of two percent of adjusted gross income for a particular year and subject to phase out rules which may reduce an individual holder’s ability to deduct such fees.
If a Note is paid in accordance with its payment schedule, the amount of OID includible in income is anticipated to be based on the yield of the Note determined net of any management fee. Therefore, for a series of Notes with respect to which no management fee is paid, the amount of OID includible in income is anticipated to be based on the stated interest rate of the Notes, and as a result, a holder of such Notes will generally be required to include an amount of OID in income that is equal to the amount of stated interest paid on the Notes. On the other hand, the yield for a series of Notes with respect to which a management fee is paid will be lower than the stated interest rate on the Note. As a result, you will generally be required to include an amount of OID in income with respect to such a Note that is less than the amount of stated interest paid on the Note.
Cash payments of interest and principal under the payment schedule on the Notes (net of any management fee) will not be separately included in income, but rather will be treated first as payments of previously accrued but unpaid OID and then as payments of principal.
The following discussion applies to Notes that have a maturity of one year or less from the date of issue (“Short-Term Notes”). There are special rules that address the U.S. federal income taxation of Short-Term Notes that you should be aware of. These rules are not entirely clear in all situations. Accordingly, you are strongly advised to consult your own tax advisor with regard to the U.S. federal income tax consequences of the purchase, ownership and disposition of Short- Term Notes.
In general, the Treasury Regulations provide that, in the case of a debt instrument with a maturity date of one year or less, no payments of interest are considered qualified stated interest. This means that a Short-Term Note is treated as having OID equal to the excess of the total payments on the obligation over its issue price. In general, if you are a cash method taxpayer, you should not be required to recognize interest income until actual or constructive receipt of payment, unless you elect to accrue OID in income on a current basis under either a straight-line or a constant yield method. If you do not elect to currently include accrued OID in income, you will not be allowed to deduct any of the interest paid or accrued on any indebtedness incurred or maintained to purchase or carry the Note (in an amount not exceeding the deferred income), and instead you will be required to defer deductions for such interest until the deferred income is realized upon the maturity of the Note or its earlier disposition in a taxable transaction. Notwithstanding the foregoing, if you elect to include accrued OID in income on a current basis, the limitation on the deductibility of interest will not apply. Upon disposition of a Short-Term Note, you will be required to characterize some or all of the gain realized on a sale, exchange or retirement of the Note as ordinary income. The amount characterized as ordinary income upon such disposition will generally equal an amount of OID that would have accrued under a straight- line basis or, if you so elect, an amount of OID that would have accrued under a constant yield method. If you are an accrual method taxpayer, you will generally be required to accrue OID in income on a current basis on either a straight-line basis or, at your election, under the constant yield method based on daily compounding. In addition, while there are special rules that address the U.S. federal income taxation of notes that have a maturity date of more than one year and that provide for one or more contingent payments (discussed below), those rules generally do not apply to short term obligations. Accordingly, the U.S. federal income taxation of short-term obligations that provide for contingent payments is not entirely clear. You should consult your own tax advisor regarding the U.S. federal income tax consequences if Short-Term Notes are considered short-term obligations that provide for contingent payments.
Sale, Retirement or Other Taxable Disposition of Notes
Upon the sale, retirement or other taxable disposition of a Note, you generally will recognize gain or loss equal to the difference, if any, between the amount realized upon the sale, retirement or other taxable disposition and your adjusted tax basis in the Note. In general, your adjusted tax basis in the Note will equal your cost for the Note, increased by any OID and market discount previously included in gross income by you, as discussed below, and reduced by any payments previously received by you in respect of the Note.
Except as discussed below with respect to a Note subject to rules governing market discount or contingent payment debt instruments, your gain or loss on the taxable disposition of the Note generally will be long-term capital gain or loss if the Note has been held for more than one year and short-term otherwise. The deductibility of capital losses is subject to limitations.
Additional Tax on Net Investment Income
Certain non-corporate U.S. Holders are subject to a 3.8% tax, in addition to regular tax on income and gains, on some or all of their “net investment income,” which generally will include interest realized on a Note and any net gain recognized upon a sale or other disposition of a Note. U.S. Holders should consult their tax advisors regarding the applicability of this tax in respect of the Notes.
If we prepay a Note in full, the Note will be treated as retired and, as described above, you will generally have gain or loss equal to the difference, if any, between the amount realized upon the retirement and your adjusted tax basis in the Note. If we prepay a Note in part, a portion of the Note will be treated as retired. Generally, for purposes of determining (i) your gain or loss attributable to the portion of the Note retired and (ii) your OID accruals on the portion of the Note remaining outstanding, the adjusted issue price, your adjusted tax basis, and the accrued but unpaid OID of the Note, determined immediately before the prepayment, will be allocated between the two portions of the Note based on the portion of the Note that is treated as retired. The yield to maturity of a Note is not affected by a partial prepayment.
As discussed above, late fees collected on a loan may be paid to you as described in the Series Note Listing. We anticipate that any late fees paid will be insignificant relative to the total expected amount of the remaining payments on the Note. In such case, any late fees paid to you should be taxable as ordinary income at the time such fees are paid or accrued in accordance with your regular method of accounting for U.S. federal income tax purposes.
Nonpayment of Loan Corresponding to Note – Automatic Extension
In the event that we do not make scheduled payments on a Note as a result of nonpayment by the borrower on the corresponding borrower loan, you must continue to accrue and include OID on a Note in taxable income until the maturity date. Solely for purposes of the OID rules, the Note may be treated as retired and reissued on the scheduled payment date for an amount equal to the Note’s adjusted issue price on that date. As a result of such reissuance, the amount and accrual of OID on the Note may change. At the time of the deemed reissuance, due to nonpayment by the borrower, we may not be able to conclude that it is significantly more likely than not that the Note will be paid in accordance with one payment schedule and/or that the likelihood of future nonpayment, prepayment, or late payment by the borrower on the loan corresponding to such Note will be remote or incidental. Accordingly, the Note may become subject to the contingent payment debt instrument rules (which are discussed in more detail below). In addition, in the event that a Note’s maturity date is extended because amounts remain due and payable on the initial maturity date by the borrower on the loan corresponding to the Note, the Note likely will be treated as reissued and become subject to the contingent payment debt instrument rules. If we determine that a Note is subject to the contingent payment debt instrument rules as a result of such a reissuance, we will notify you and provide the projected payment schedule and comparable yield.
If collection on a Note becomes doubtful, you may be able to stop accruing OID on the Note. Under current IRS guidance, it is not clear whether you may stop accruing OID if scheduled payments on a Note are not made.
You should consult your own tax advisor regarding the accrual and inclusion of OID in income when collection on a Note becomes doubtful.
Losses as a Result of Worthlessness
In the event that a Note becomes wholly worthless, you should generally be entitled to deduct your loss on the Note as a capital loss in the taxable year the Note becomes wholly worthless. The portion of your loss attributable to accrued but unpaid OID may be deductible as an ordinary loss, although such treatment is not entirely free from doubt.
Potential Characterization as Contingent Payment Debt Instruments
Although we believe our intended treatment of a Note as our debt instrument that is not subject to the contingent payment debt instrument rules is reasonable, our position is not binding on the IRS or the courts and we cannot predict what the IRS or a court would ultimately decide with respect to the proper U.S. federal income tax treatment of the Notes. Accordingly, there exists a risk that the IRS or a court could determine that the Notes are “contingent payment debt instruments” because payments on the Notes are linked to performance on the corresponding borrower loan. If the Notes are characterized as contingent payment debt instruments, or in the future, if we conclude that a Note is subject to the contingent payment debt instrument rules, the Notes would be subject to special rules applicable to contingent payment debt instruments. If these rules were to apply, you would generally be required to accrue interest income under the non-contingent bond method. Under this method, interest would be taken into account whether or not the amount of any payment was fixed or determinable in the taxable year. The amount of interest that would be taken into account would generally be determined based on a hypothetical non-contingent bond, which is based on a “comparable yield” (generally, a hypothetical yield to be applied to determine interest accruals with respect to the Note, and which can be no less than the applicable federal rate) and a “projected payment schedule” (generally, a series of projected payments, the amount and timing of which would produce a yield to maturity on that Note equal to the comparable yield). Based on the comparable yield and the projected payment schedule, you will generally be required to accrue as OID the sum of the daily portions of interest for each day in the taxable year that you held the Note, adjusted to reflect the difference, if any, between the actual and projected amount of any contingent payments on the Note. The daily portions of interest are determined by allocating to each day in an accrual period the ratable portion of interest that accrues in such accrual period. The amount of interest you may accrue under this method could be higher or lower than the stated interest rate on the Notes. In addition, any gain recognized on the sale, exchange or retirement of your Note will generally be treated as ordinary interest income, and any loss will be treated as ordinary loss to the extent of prior OID inclusions, and then as capital loss thereafter.
Backup Withholding and Reporting
We will be required to report information to the IRS on certain payments on a Note (including interest and discount) and on proceeds of the sale of a Note if you are not an exempt recipient (such as a corporation). In addition, backup withholding (currently at a 28% rate) may apply to payments made to you if (a) you do not furnish or you have failed to provide your correct taxpayer identification number, (b) we have been instructed by the IRS to backup withhold because of underreporting (generally meaning that the IRS has determined and notified you that you have failed to report any reportable dividend and interest payments required to be shown on a tax return for a taxable year), or (c) in certain circumstances, you have failed to comply with applicable certification requirements or otherwise establish an exemption from backup withholding.
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability provided the required information is furnished to the IRS on a timely basis. You should consult your tax advisor regarding the application of information reporting and backup withholding rules in your particular situation, the availability of an exemption, and the procedure for obtaining such an exemption, if applicable.
The Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and corresponding provisions of the Internal Revenue Code, imposes certain requirements on pension, profit sharing, and other employee benefit plans to which it applies, including individual retirement accounts and annuities, Keogh plans, and other tax-exempt plans (“Plans”), and on those persons who are fiduciaries or parties in “interest” with respect to such Plans. In considering an investment of assets of a Plan in the Notes, a Plan fiduciary should consider, among other things: (i) the purposes, requirements, and liquidity needs of such Plan; (ii) the definition of Plan assets under ERISA and applicable U.S. Department of Labor regulations; (iii) whether the investment satisfies the diversification requirements of Section 404(a)(1)(c) of ERISA; and (iv) whether such an investment is appropriate for the Plan and prudent considering the nature of the investment.
In addition, Sections 406 and 407 of ERISA and Section 4975 of the Internal Revenue Code prohibit certain transactions that involve a Plan and a “party in interest” under ERISA or “disqualified” persons under the Internal Revenue Code with respect to the Plan and Plan assets. Consequently, a Plan contemplating an investment in the Fractionalized Interests should consider whether Company, or any affiliate of Company, is or might become a party in interest or a disqualified person with respect to the Plan. Potential Plan Investors are urged to consult with, and rely upon, their own advisors and counsel for advice on the ERISA and IRS issues relating to a Plan’s investment in the Notes.
The Notes are not being registered under the Securities Act of 1933. The Notes may not be sold or transferred unless they are registered under the Securities Act and the applicable securities laws of any appropriate jurisdiction, or unless exemptions from such registration requirements are available. Accordingly, the Notes will not be listed on any securities exchange, nor do we have plans to establish any kind of trading platform to assist investors who wish to sell their Notes. There is no public market for the Notes, and none is expected to develop. Accordingly, Investors may be required to hold your Notes to maturity.
As a condition to this offering, various restrictions have been placed upon the ability of Investors to resell or otherwise dispose of any Notes purchased hereunder, including without limitation the following:
1. No Investor may resell or otherwise transfer any Notes except to a person or entity that meets the eligibility standards described herein. (See “Investor Qualifications.”)
2. Prior to reselling or transferring any Notes to any person or entity in a manner that otherwise complies with the restrictions noted herein, the Investor must offer the Notes to the Company (in writing) for purchase (“Right of First Refusal”). If the Company does not purchase the securities within thirty (30) calendar days from the date upon which it receives written notice of the Investor’s offer, then the Investor may resell or transfer the securities to another person or entity, provided that the transfer or resale otherwise complies with the requirements and restrictions on transfer noted herein.
3. The Notes have not been registered with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act” or the “Securities Act”), in reliance upon the exemptions provided for under Section 4(2) and Rule 506 thereunder. Fractional Interests may not be sold or otherwise transferred without registration under the Act or pursuant to an exemption therefrom. In addition, no sales or transfers may be made for at least one (1) year after the last sale by the Company of a particular series of Notes.In the case of construction or rehabilitation loans, that one-year period will not begin to run until the last loan disbursement under the loan disbursement agreement has been funded . Any such sale or transfer shall be subject to the Company’s right of first refusal described in the preceding paragraph.
4. A transfer fee equal to Five Hundred dollars ($500) (the “Transfer Fee”) shall be charged for every transfer request made by Investor to the Company for administrative and legal costs.
5. No sale or transfer shall be effective unless the buyer or transferee has executed and delivered to the Company all documents required by the Company for investing in the Notes and paid the Transfer Fee to the Company.
The Notes will be registered electronically with the Company and the Company does not anticipate issuing physical Notes or related instruments. The form of Note that will be available online will contain one or more legends stating that the Notes have not been registered under the Act and describing the applicable limitations on resale.
The Company undertakes to make available to each potential investor every opportunity to obtain any additional information from the Company necessary to verify the accuracy of the information contained in this Memorandum. The Company will provide such information to the extent that it possesses such information or can acquire it without unreasonable effort or expense. This additional information includes documents or instruments relating to the operation and business of the Company that are material to this offering and the transactions contemplated and described in this Memorandum. Should you have any questions, please do not hesitate to contact the Company as follows:
Kajaine Capital Inc
205 Worth Avenue Suite #301
FOR ACCREDITED INVESTORS
This is a Subscription for
Borrower Payment Dependent Notes of
Kajaine Capital Inc (the “Company”)
THE NOTES OFFERED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). ANY SALE OF NOTES IS MADE IN RELIANCE UPON EXEMPTIONS FROM REGISTRATION AND QUALIFICATION AS PROVIDED IN THE SECURITIES ACT AND APPLICABLE STATE LAW. THE NOTES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAS ANY REGULATORY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS SUBSCRIPTION AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
THE NOTES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD, EXCEPT AS PERMITTED UNDER THIS AGREEMENT, THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION, QUALIFICATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE NOTES ARE SPECULATIVE SECURITIES AND INVOLVE A HIGH DEGREE OF RISK. PROSPECTIVE INVESTORS NOT WILLING AND ABLE TO RISK THE COMPLETE LOSS OF THEIR INVESTED CAPITAL MUST NOT CONSIDER PURCHASING THE NOTES.
THIS SUBSCRIPTION AGREEMENT (this “Agreement” or this “Subscription”) is made and entered into as of ##SUBSCRIPTION_DATE## by and between the undersigned (the “Subscriber,” “Investor,” or “you”) and , (the “Company” or “we” or “us” or “our”), with reference to the facts set forth below.
WHEREAS, subject to the terms and conditions of this Agreement, the Subscriber wishes to irrevocably subscribe for and purchase (subject to acceptance of such subscription by the Company) certain Borrower Payment Dependent Notes (the “Notes”), as set forth in Section 1 and on the signature page hereto, offered pursuant to the Private Placement Memorandum (the “Memorandum”) of the Company and the Series Note Listing (as defined below) for the Notes.
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Subscription for and Purchase of the Notes.
1.1 Subject to the express terms and conditions of this Agreement and the form of Note, the Subscriber hereby irrevocably subscribes for and agrees to purchase the Notes (the “Purchase”) in the amount of the purchase price set forth below:
1.2 The Company has the right to raise the incremental subscription amount for any reason. In the event that the Company raises the incrementalsubscription amount after a subscription agreement has been submitted to the Company with an incremental subscription amount less than the raised incremental subscription amount, the Company shall have the option of rejecting the Subscriber’s Purchase request or adjusting the incremental subscription amount.
1.4 The Company has the right to reject this Subscription in whole or in part for any reason. The Subscriber may not revoke the Agreement, and the Subscriber may not cancel, terminate or revoke this Agreement, which, in the case of an individual, shall survive his death or disability and shall be binding upon the Subscriber, his heirs, trustees, beneficiaries, executors, personal or legal administrators or representatives, successors, transferees and assigns.
1.5 The Notes are being issued by the Company to provide funding for loans secured by real estate made by the Company to one or more individuals or real estate companies (collectively, the “borrower”). Each of these loans (or components thereof) will generally be secured by a mortgage, deed of trust or security deed on the underlying real estate, although the Notes themselves are unsecured obligations of the Company.
1.6 Once you make a funding commitment to purchase a Note, it is irrevocable until the Note is issued, the Purchase is rejected by the Company, or the minimum amount of necessary funding for the applicable Series Note Listing has not been received or the Company otherwise determines not to consummate the transaction and the Series Note Listing is consequently withdrawn.
1.7 The Company may cancel or remove a Series Note Listing for any reason (or no reason) in its sole discretion within the time allotted to accept such commitments prior to funding. Prior to funding, the Company may similarly remove the Series Note Listing from the Company platform and cancel, without liability, all investor purchase commitments relating to the corresponding series of Notes.
2. Terms for and Purchase of the Notes.
2.1 The Notes shall have the terms and conditions described in the Memorandum, the Series Note Listing, and the form of Note, which will be available for you to review on the Site. The interest rate, maturity and other specific terms of the Notes will be described in the Series Note Listing. Upon request, the corresponding financing agreements between the borrower and the Company will be available for review on the Site (generally with information identifying the borrower redacted).
2.2 The Subscriber understands that the Purchase Price is payable with the execution and submission of this Agreement, and accordingly, is submitting herewith to the Company the Purchase Price as agreed to by the Company on the Company website.
2.3 The Subscriber’s Purchase Price will be held in a Company bank account until such time that the Company raises the applicable offering amount for that series of Notes; at which point the entire balance shall be immediately available to the Company for use in furtherance of its business. For the avoidance of doubt, if the Company returns the Subscriber’s Purchase Price to the Subscriber, the Company will not pay any interest to the Subscriber.
2.4 If this Subscription is accepted by the Company, the Subscriber agrees to comply fully with the terms of this Agreement, the Note and all other applicable documents or instruments of the Company. The Subscriber further agrees to execute any other necessary documents or instruments in connection with this Subscription and the Subscriber’s purchase of the Notes.
2.5 In the event that this Subscription is rejected in full or the offering is terminated, payment made by the Subscriber to the Company for the Notes will be refunded to the Subscriber without interest and without deduction, and all of the obligations of the Subscriber hereunder shall terminate. To the extent that this Subscription is rejected in part, the Company shall refund to the Subscriber any payment made by the Subscriber to the Company with respect to the rejected portion of this Subscription without interest and without deduction, and all of the obligations of Subscriber hereunder shall remain in full force and effect except for those obligations with respect to the rejected portion of this Subscription, which shall terminate.
3. Investment Representations and Warranties of the Subscriber. The Subscriber represents and warrants to the Company the following:
3.1 The information that the Subscriber has furnished herein, including (without limitation) the information furnished by the Subscriber on the questionnaire attached hereto as Exhibit A, is correct and complete as of the date of this Agreement and will be correct and complete on the date, if any, that the Company accepts this subscription. Further, the Subscriber shall immediately notify the Company of any change in any statement made herein prior to the Subscriber’s receipt of the Company’s acceptance of this Subscription. The representations and warranties made by the Subscriber may be fully relied upon by the Company and by any investigating party relying on them.
3.2 The Subscriber, if an entity, is, and shall at all times while it holds Notes remain, duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization, having full power and authority to own its properties and to carry on its business as conducted. The Subscriber, if a natural person, is eighteen (18) years of age or older, competent to enter into a contractual obligation, and a citizen or resident of the United States of America (or, if not a U.S. citizen or legal U.S. resident, shall have completed a supplemental questionnaire for foreign investors). The principal place of business or principal residence of the Subscriber is as shown on the signature page of this Agreement.
3.3 The Subscriber has the requisite power and authority to deliver this Agreement, perform his, her or its obligations set forth herein, and consummate the transactions contemplated hereby. The Subscriber has duly executed and delivered this Agreement and has obtained the necessary authorization to execute and deliver this Agreement and to perform his, her or its obligations herein and to consummate the transactions contemplated hereby. This Agreement, assuming the due execution and delivery hereof by the Company, is a legal, valid and binding obligation of the Subscriber enforceable against the Subscriber in accordance with its terms.
3.4 At no time has it been expressly or implicitly represented, guaranteed or warranted to the Subscriber by the Company or any other person that:
a. A percentage of profit and/or amount or type of gain or other consideration will be realized as a result of this investment; or
b. The past performance or experience on the part of the Company and/or its officers or directors does not in any way indicate the predictable or probable results of the ownership of the Notes or the overall Company venture.
3.5 The Subscriber has received, carefully read and is familiar with the terms and provisions of this Agreement, the Memorandum, the Series Note Listing and the Note. The Subscriber has received all information that it considers necessary or appropriate for deciding whether to purchase the Notes. The Subscriber and/or the Subscriber’s advisors, who are not affiliated with and not compensated directly or indirectly by the Company or an affiliate thereof, have such knowledge and experience in business and financial matters as will enable them to utilize the information which they have received in connection with the Company and its business to evaluate the merits and risks of an investment, to make an informed investment decision and to protect Subscriber’s own interests in connection with the Purchase.
3.6 The Subscriber understands that the Notes being purchased are a speculative investment which involves a substantial degree of risk of loss of the Subscriber’s entire investment in the Notes, and the Subscriber understands and is fully cognizant of the risk factors related to the purchase of the Notes. The Subscriber has read, reviewed and understood the risk factors set forth in the Memorandum.
3.7 The Subscriber understands that any forecasts or predictions as to the Company’s performance are based on estimates, assumptions and forecasts that the Company believes to be reasonable but that may prove to be materially incorrect, and no assurance is given that actual results will correspond with the results contemplated by the various forecasts.
3.8 The Subscriber is able to bear the economic risk of this investment and, without limiting the generality of the foregoing, is able to hold this investment for an indefinite period of time. The Subscriber has adequate means to provide for the Subscriber’s current needs and personal contingencies and has a sufficient net worth to sustain the loss of the Subscriber’s entire investment in the Company.
3.9 The Subscriber has had an opportunity to ask questions of the Company or anyone acting on its behalf and to receive answers concerning the terms of this Agreement and the Notes, as well as about the Company and its business generally, and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense, that is necessary to verify the accuracy of the information contained in this Agreement. Further, all such questions have been answered to the full satisfaction of the Subscriber.
3.10 The Subscriber is an “accredited investor” as that term is defined in Rule 501 under Regulation D promulgated under the Securities Act of 1933, as amended (the “Act”). The Subscriber agrees to provide any additional documentation the Company may reasonably request, or as may be required by the securities administrators or regulators of any state, to confirm that the Subscriber meets any applicable minimum financial suitability standards and has satisfied any applicable maximum investment limits.
3.11 The Subscriber understands that no state or federal authority has scrutinized this Agreement or the Notes offered pursuant hereto, has made any finding or determination relating to the fairness for investment of the Notes, or has recommended or endorsed the Notes, and that the Notes have not been registered or qualified under the Act or any state securities laws, in reliance upon exemptions from registration thereunder. The Notes may not be resold, transferred, assigned or otherwise disposed of unless they are registered under the Act or an exemption from registration is available, and unless the proposed disposition is in compliance with the restrictions on transferability under federal and state securities laws and under this Agreement.
3.12 The Subscriber understands that the Company has not been registered under the Investment Company Act of 1940, as amended. In addition, the Subscriber understands that the Company is not registered as an investment adviser under the Investment Advisers Act of 1940, as amended.
3.13 The Subscriber understands the exemption under Rule 144 promulgated under the Act will not be generally available because of the conditions and limitations of such rule, that the Company has no obligation and does not intend to take any action to make available such exemption or any other exemption under the Act, and that because of the unavailability of such exemption, any disposition by the Subscriber of the Notes may require compliance with Regulation A or some other exemption under the Act. The Subscriber understands that there are substantial restrictions on the transferability of the Notes and that there is no public market for the Notes, and none is expected to develop in the near future. Consequently, the Subscriber understands that it must bear the economic risk of this investment for an indefinite period of time, and that it may not be possible for the Subscriber to liquidate readily any investment in the Notes, if at all.
3.14 The Subscriber is subscribing for and purchasing the Notes without being furnished any offering literature, other than the Memorandum, this Agreement, the Series Note Listing, the Note and such other related documents, agreements or instruments as may be attached to the foregoing documents as exhibits or supplements thereto, or as the Subscriber has otherwise requested from the Company in writing, and without receiving any representations or warranties from the Company or its agents and representatives other than the representations and warranties contained in said documents, and is making this investment decision solely in reliance upon the information contained in said documents and upon any investigation made by the Subscriber or Subscriber’s advisors. At no time was the Subscriber presented with or solicited by any form of general solicitation or general advertising, including, but not limited to, any advertisement, article, notice or other communication published in a newspaper, magazine or similar media, or broadcast over television or radio; or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
3.15 The Subscriber’s true and correct full legal name, address of residence (or, if an entity, principal place of business), phone number, electronic mail address, United States taxpayer identification number, if any, and other contact information are accurately provided on signature page hereto. The Subscriber is currently a bona fide resident of the state or jurisdiction set forth in the current address provided to the Company. The Subscriber has no present intention of becoming a resident of any other state or jurisdiction.
3.16 The Subscriber is subscribing for and purchasing the Notes solely for the Subscriber’s own account, for investment purposes only, and not with a view toward or in connection with resale, distribution (other than to its shareholders or members, if any), subdivision or fractionalization thereof. The Subscriber has no agreement or other arrangement, formal or informal, with any person or entity to sell, transfer or pledge any part of the Notes, or which would guarantee the Subscriber any profit, or insure against any loss with respect to the Notes, and the Subscriber has no plans to enter into any such agreement or arrangement.
3.17 The Subscriber represents and warrants that the execution and delivery of this Agreement, the consummation of the transactions contemplated thereby and hereby and the performance of the obligations thereunder and hereunder will not conflict with or result in any violation of or default under any provision of any other agreement or instrument to which the Subscriber is a party or any license, permit, franchise, judgment, order, writ or decree, or any statute, rule or regulation, applicable to the Subscriber. The Subscriber confirms that the consummation of the transactions envisioned herein, including, but not limited to, the Subscriber’s Purchase, will not violate any foreign law and that such transactions are lawful in the Subscriber’s country of citizenship and residence.
3.18 Subscriber represents that no suit, action, claim, investigation or other proceeding is pending or, to the best of the Subscriber’s knowledge, is threatened against the Subscriber that questions the validity of the Note or this Agreement or any action taken or to be taken pursuant to the Note or this Agreement.
3.19 The Company’s intent is to comply with all applicable federal, state and local laws designed to combat money laundering and similar illegal activities, including the provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “PATRIOT Act”). Subscriber hereby represents, covenants, and agrees that, to the best of Subscriber’s knowledge based on reasonable investigation:
(a) None of the Subscriber’s funds tendered for the Purchase Price (whether payable in cash or otherwise) shall be derived from money laundering or similar activities deemed illegal under federal laws and regulations.
(b) To the extent within the Subscriber’s control, none of the Subscriber’s funds tendered for the Purchase Price will cause the Company or any of its personnel to be in violation of federal anti-money laundering laws, including (without limitation) the Bank Secrecy Act (31 U.S.C. 5311 et seq.), the United States Money Laundering Control Act of 1986 or the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, and/or any regulations promulgated thereunder.
(c) When requested by the Company, the Subscriber will provide any and all additional information, and the Subscriber understands and agrees that the Company may release confidential information about the Subscriber and, if applicable, any underlying beneficial owner or Related Person1 to U.S. regulators and law enforcement authorities, deemed reasonably necessary to ensure compliance with all applicable laws and regulations concerning money laundering and similar activities. The Company reserves the right to request any information as is necessary to verify the identity of the Subscriber and the source of any payment to the Fund. In the event of delay or failure by the Subscriber to produce any information required for verification purposes, the subscription by the Subscriber may be refused.
(d) Neither the Subscriber, nor any person or entity controlled by, controlling or under common control with the Subscriber, any of the Subscriber’s beneficial owners, any person for whom the Subscriber is acting as agent or nominee in connection with this investment nor, in the case of an Subscriber which is an entity, any Related Person is:
(i) a Prohibited Investor;
(ii) a Senior Foreign Political Figure, any member of a Senior Foreign Political Figure’s “immediate family,” which includes the figure’s parents, siblings, spouse, children and in-laws, or any Close Associate of a Senior Foreign Political Figure, or a person or entity resident in, or organized or chartered under, the laws of a Non-Cooperative Jurisdiction;
For purposes of this paragraph, the terms “Related Person”, “Prohibited Investor”, “Senior Foreign Political Figure”, “Close Associate”, “Non-Cooperative Jurisdiction” and “Foreign Shell Bank” shall have the meanings described below: “Close Associate of a Senior Foreign Political Figure” shall mean a person who is widely and publicly known internationally to maintain an unusually close relationship with the Senior Foreign Political Figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the Senior Foreign Political Figure; “Foreign Shell Bank” shall mean a Foreign Bank without a physical presence in any country, but does not include a regulated affiliate; “Foreign Bank” shall mean an organization that (i) is organized under the laws of a foreign country, (ii) engages in the business of banking, (iii) is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or principal banking operations, (iv) receives deposits to a substantial extent in the regular course of its business, and (v) has the power to accept demand deposits, but does not include the U.S. branches or agencies of a foreign bank; “Non-Cooperative Jurisdiction” shall mean any foreign country that has been designated as non- cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Task Force on Money Laundering, of which the U.S. is a member and with which designation the U.S. representative to the group or organization continues to concur; “Prohibited Investor” shall mean a person or entity whose name appears on (i) the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (ii) other lists of prohibited persons and entities as may be mandated by applicable law or regulation; or (iii) such other lists of prohibited persons and entities as may be provided to the Fund in connection therewith; “Related Person” shall mean, with respect to any entity, any interest holder, director, senior officer, trustee, beneficiary or grantor of such entity; provided that in the case of an entity that is a publicly traded company or a tax qualified pension or retirement plan in which at least 100 employees participate that is maintained by an employer that is organized in the U.S. or is a U.S. government entity, the term “Related Person” shall exclude any interest holder holding less than 5% of any class of securities of such publicly traded company and beneficiaries of such plan; “Senior Foreign Political Figure” shall mean a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. In addition, a Senior Foreign Political Figure includes any corporation, business or other entity that has been formed by, or for the benefit of, a Senior Foreign Political Figure.
(iii) a person or entity resident in, or organized or chartered under, the laws of a jurisdiction that has been designated by the U.S. Secretary of the Treasury under Section 311 or 312 of the PATRIOT Act as warranting special measures due to money laundering concerns; or
(iv) a person or entity who gives Subscriber reason to believe that its funds originate from, or will be or have been routed through, an account maintained at a Foreign Shell Bank, an “offshore bank,” or a bank organized or chartered under the laws of a Non-Cooperative Jurisdiction.
(e) The Subscriber hereby agrees to immediately notify the Company if the Subscriber knows, or has reason to suspect, that any of the representations in this Section 3.19 have become incorrect or if there is any change in the information affecting these representations and covenants.
(f) The Subscriber agrees that, if at any time it is discovered that any of the foregoing anti-money laundering representations are incorrect, or if otherwise required by applicable laws or regulations, the Company may undertake appropriate actions, and the Subscriber agrees to cooperate with such actions, to ensure compliance with such laws or regulations, including, but not limited to segregation and/or redemption of the Subscriber’s interest in the Notes.
3.20 The Subscriber confirms that the Subscriber has been advised to consult with the Subscriber’s independent attorney regarding legal matters concerning the Company and to consult with independent tax advisers regarding the tax consequences of investing through the Company. The Subscriber acknowledges that Subscriber understands that any anticipated United States federal or state income tax benefits may not be available and, further, may be adversely affected through adoption of new laws or regulations or amendments to existing laws or regulations. The Subscriber acknowledges and agrees that the Company is providing no warranty or assurance regarding the ultimate availability of any tax benefits to the Subscriber by reason of the Purchase.
4. Representations and Warranties of the Company. The Company hereby represents and warrants to the Subscriber as follows:
4.1 The Company is a duly organized, validly existing and in good standing under the laws of the State of , having full power and authority to own its properties and carry on its business as conducted.
4.2 The Company has the requisite power and authority to deliver this Agreement, perform its obligations herein and consummate the transactions contemplated hereby.
4.3 The Notes to be issued to the Subscriber pursuant to this Agreement, when issued and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable.
5. Payment on the Notes is Dependent on Payments Received by the Company on the Corresponding Borrower Loan. PAYMENT ON THE NOTES, IF ANY, DEPENDS ENTIRELY ON THE RECEIPT OF PAYMENTS BY THE COMPANY IN RESPECT OF THE CORRESPONDING BORROWER LOANS. NEITHER THE COMPANY NOR ANY OTHER PARTY WARRANTS OR GUARANTEES IN ANY MANNER THAT YOU WILL RECEIVE ALL OR ANY PORTION OF THE PRINCIPAL OR INTEREST YOU EXPECT TO RECEIVE ON ANY NOTE OR REALIZE ANY PARTICULAR OR EXPECTED RATE OF RETURN. THE AMOUNT YOU RECEIVE ON YOUR NOTE, IF ANY, IS SPECIFICALLY RESTRICTED TO PAYMENTS MADE BY US EQUAL TO THE PAYMENTS MADE BY THE BORROWER UNDER THE CORRESPONDING BORROWER LOANS TO WHICH YOU COMMITTED, NET OF ANY COLLECTION FEES OR ANY ENFORCEMENT EXPENSES WE INCUR IN COLLECTING SUCH BORROWER PAYMENTS. NEITHER THE COMPANY NOR ANY OTHER PARTY MAKES ANY REPRESENTATIONS AS TO A BORROWER'S ABILITY TO PAY OR ACTS AS A GUARANTOR OF ANY CORRESPONDING BORROWER LOAN.
6. No Action with Respect to Corresponding Borrower Loans. You agree that you have no right to, and shall not, make any attempt, directly or through any third party, to take collection action with respect to any corresponding borrower loans. YOU UNDERSTAND AND ACKNOWLEDGE THAT BORROWERS MAY DEFAULT ON THEIR CORRESPONDING BORROWER LOANS AND THAT SUCH DEFAULTS WILL REDUCE THE AMOUNTS, IF ANY, YOU MAY RECEIVE UNDER THE TERMS OF ANY NOTES YOU HOLD ASSOCIATED WITH SUCH CORRESPONDING BORROWER LOANS. YOU FURTHER ACKNOWLEDGE THAT THE COMPANY’S ENFORCEMENT OF ITS RIGHTS AND REMEDIES WITH RESPECT TO THE CORRESPONDING BORROWER LOANS DURING ANY DEFAULT MIGHT NOT RESULT IN THE COMPANY RECOVERING THE FULL AMOUNT OF THE CORRESPONDING BORROWER LOAN.
7. Taxes. You and the Company agree that the Notes are intended to be indebtedness of the Company for U.S. federal income tax purposes. You agree that you will not take any position inconsistent with such treatment of the Notes for tax, accounting, or other purposes, unless required by applicable law. You further acknowledge that the Notes will be subject to the original issue discount rules of the Internal Revenue Code of 1986, as amended, as described in the Private Placement Memorandum for such Notes. You acknowledge that you are prepared to bear the risk of loss of your entire purchase price for any Notes you purchase. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON THE FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY OF THE OTHER.
8. Enforcement and Collection of Loan Obligations. You acknowledge that: (a) the Company will collect, as the lender thereon, all corresponding borrower loan obligations, both before and after default, and will service all Notes; (b) in enforcing the corresponding borrower loans, the Company may, in its discretion, utilize affiliated or unaffiliated third party loan servicers, collection agencies or other agents or contractors; and (c) the Company and any third- party servicer enforcing a corresponding borrower loan obligation may, in its sole discretion and subject to the enforcement standard set forth in this Section 8, refer a corresponding borrower loan to a collection agency, elect to initiate legal action to collect on a corresponding borrower loan, or sell a corresponding borrower loan to a third party at any time. Notwithstanding the foregoing, we will not pay to you any non-sufficient funds fees or collection fees we or any third-party collection agency charge, and such fees will be retained by the party receiving them as additional servicing compensation. The Company and its third-party servicers will be entitled to deduct from amounts received with respect to corresponding borrower loans any legal fees and/or other expenses that they incur in enforcing the corresponding borrower loan obligations.
Enforcement Standard. The Company will act in good faith (as defined in Article 1 of the Uniform Commercial Code) in taking action to collect the corresponding borrower loan obligations, including, in its sole discretion, in enforcing its security interest in the assets pledged to secure the corresponding borrower loans. Except as otherwise provided in the Memorandum, the Company and any third-party servicer enforcing a corresponding borrower loan obligation shall have the right, without your consent, at any time and from time to time and subject to the foregoing enforcement standard, to change the payment date, reduce the principal amount or the rate of interest or change the place and manner of making payments on a corresponding borrower loan, to amend or waive any other term of such corresponding borrower loan, or charge-off any corresponding borrower loan that the Company or any third-party servicer enforcing the corresponding borrower loan deems uncollectible.
The Company shall be entitled to retain any applicable collection fees.
9. Subsequent Sales or Transfers. Subject to the provisions of the Note, the Subscriber acknowledges and agrees that if any Notes in the Company becomes available for resale or transfer, neither the Company nor any other person shall be obligated to offer the same to the Subscriber, and such available Notes may be resold or transferred, subject to compliance with any agreements to which such Notes may be subject and any and all applicable state and federal laws, rules and regulations. In addition, the following provisions shall apply to all sales and transfers of the Notes:
(a) No Investor may resell or otherwise transfer any Notes except to a person or entity that meets the eligibility standards set forth in this Agreement.
(b) Prior to reselling or transferring any Notes to any person or entity in a manner that otherwise complies with the restrictions noted herein, you must offer the Notes (in writing) to the Company (which may, in turn, offer the Notes to other Investors) for purchase (a “Right of First Refusal”). The written notice shall specify the identity of the proposed transferee, the consideration to be received for the Note, and the terms and conditions upon which you intend to make the transfer. If the Company and the other Investors do not arrange to purchase all or a portion of your Note upon substantially the same terms and conditions within thirty (30) days from the date upon which the Company receives written notice of your offer, then you may resell or transfer the securities to another person or entity, provided that the transfer or resale otherwise complies with the other requirements and restrictions on transfer noted herein.
(c) The Notes have not been registered with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon the exemptions provided for under Section 4(2) and Rule 506 of Regulation D thereunder. Notes may not be sold or otherwise transferred without registration under the Act or pursuant to an exemption therefrom. In addition, no sales or transfers may be made for at least one (1) year after the last sale by the Company of a particular series of Notes. In the case of construction or rehabilitation loans, that one-year period will not begin to run until the last loan disbursement under the loan disbursement agreement has been funded. Any such sale or transfer shall remain subject to the Company’s Right of First Refusal described in the preceding paragraph.
(d) A transfer fee equal to Five Hundred Dollars ($500) (the “Transfer Fee”) shall be charged for every transfer request made by Investor to the Company for administrative and legal costs.
(e) No sale or transfer shall be effective unless the buyer or transferee has executed and delivered to the Company all documents required by the Company for investing in the Notes and paid the Transfer Fee to the Company.
(f) A legend will be placed upon all instruments or certificates evidencing ownership of Notes stating that the Notes have not been registered under the Act and setting forth the applicable limitations on resale.
10. Indemnity. The Subscriber hereby indemnifies and holds harmless the Company and its officers, directors, managers, stockholders, partners, members, agents, counsel, servants, employees, affiliates, parent companies, subsidiaries, heirs, personal and legal representatives and administrators, successors and assigns from, of and against any and all losses, costs, claims, expenses and damages of every kind, known or unknown, contingent or otherwise (including, but not limited to, reasonable attorneys’ fees and court costs incurred), or liability due, which any one of them may incur by reason of (i) failure of the Subscriber to fulfill any of the terms or conditions of this Agreement, (ii) any breach of any representation or warranty of the Subscriber, whether contained in this Agreement or elsewhere, or (iii) Subscriber’s wrongful acts, omissions and representations (and those of your employees, agents or representatives). Your obligation to indemnify the Company shall survive termination of this Agreement, regardless of the reason for termination.
11. Confidentiality. The Subscriber acknowledges that the information contained in the Memorandum, the Series Note Listing and Note, respectively, contain confidential and non- public information, and agrees that all such information shall be kept in confidence by the Subscriber and neither used by the Subscriber for the Subscriber’s personal benefit (other than in connection with this Subscription) nor disclosed to any third party for any reason; provided, however, that this obligation shall not apply to any such information which (a) is part of the public knowledge or literature readily accessible on the date hereof; (b) becomes part of the public knowledge or literature and readily accessible by publication (except as a result of a breach of this provision); (c) is received from third parties (except third parties who disclose such information in violation of any confidentiality agreements, including, without limitation, any subscription agreement they may have entered into with the Company); or (d) is required to be disclosed by applicable law.
12. No Advisory Relationship. You acknowledge and agree that the purchase and sale of the Notes pursuant to this Agreement is an arms-length transaction between you and the Company. In connection with the purchase and sale of the Notes, the Company is not acting as your agent or fiduciary. The Company assumes no advisory or fiduciary responsibility in your favor in connection with the Notes or the corresponding borrower loans. The Company has not provided you with any legal, accounting, regulatory or tax advice with respect to the Notes, and you have consulted your own respective legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate.
13. Prohibited Activities. You agree that you will not do any of the following in connection with any Series Note Listing, Notes, corresponding borrower loans or other transactions involving or potentially involving the Company:
(a) take any action on your own to collect, or attempt to collect from any borrower, directly or through any third party, any amount owing under any of your Notes or on any of the corresponding borrower loan obligations that correspond to your Notes;
(b) bring a lawsuit or other legal proceeding against any borrower or any other party on any corresponding borrower loan;
(c) contact the borrower on any corresponding borrower loan relating to your Note;
(d) contact any collection agency or law firm to which any corresponding borrower loan has been referred for collection; or
(e) violate any applicable federal, state or local laws, rules or regulations.
14. Limitations on Actions by Investors. Upon the occurrence of any of the following events with respect to a series of Notes:
(a) during the continuance of any Event of Default (as defined in the applicable Notes) with respect to such series;
(b) after the Company has charged off the corresponding borrower loan for that series if an Investor alleges a breach of this Agreement by the Company with respect to such Notes (a "Breach Claim"); or
(c) following the final maturity date of the Notes of such series if an Investor alleges a Breach Claim, then, if any Investor in such series of Notes (an “Initiating Investor”) expresses a bona fide interest in making a claim against the Company with respect to such series and sets forth in writing the reasons behind such interest, then the Company shall furnish to each of the Investors in such series (i) a copy of such Investor’s request and (ii) a response from the Company. The Company shall, in such Investor communication, request that each Investor indicate whether it desires to join the Initiating Investor in pursuing the claim described by the Initiating Investor. If Investors representing a majority of the aggregate principal amount of the outstanding Notes of that series indicate an affirmative desire to join with the Initiating Investor (the “ Designating Investors”), then the Company shall furnish to such Designating Investors the name, address and email address of each such Designating Investor (an “Information Notice”) for the purpose of their selecting an Investor Representative as described below. No Investor in any series of Notes may pursue any remedy with respect to such Notes unless and until Investors representing a majority of the aggregate principal amount of the outstanding Notes of that series indicate a desire to collectively pursue such remedy.
If a group of Designating Investors is formed, then the Designating Investors shall, within thirty (30) days of the Company’s delivery of the Information Notice designate a single Investor (the "Investor Representative") to represent their interests in connection with such series of Notes and notify the Company of such designation. After an Investor Representative has been designated with respect to such series, no Investor other than the Investor Representative may pursue any remedy with respect to such Notes in connection with an Event of Default or a Breach Claim.
The Investor Representative may direct the time, method and place of conducting any proceeding for any remedy against the Company arising in connection with an event of default or occurrence with respect to a Note. The Investor Representative may, on behalf of all the Designating Investors, agree to (i) any waiver of an Event of Default or (ii) any amendment or waiver of any provision of the Notes. When a default is waived, it is deemed cured, but no such waiver shall: (A) extend to any subsequent or other Event of Default or (B) impair any consequent right.
15. The Company's Right to Modify Terms. The Company has the right to change any term or provision of the Memorandum, any Series Note Listing, a form of Note, or the Site. The Company will give you notice of material changes to the Memorandum, an applicable Series Note Listing, or the Site in the manner set forth in Section 18. You authorize the Company to correct obvious clerical errors appearing in information you provide to the Company, without notice to you, although the Company undertakes no obligation to identify or correct such errors.
16. Termination. The Company may, in its sole discretion, with or without cause, terminate this Agreement by giving you written notice. In addition, upon our reasonable determination that you committed fraud or made a material misrepresentation in connection with a Series Note Listing or a commitment to purchase a Note, performed any prohibited activity, or otherwise failed to abide by the terms of this Agreement or other applicable terms and conditions, we may, in our sole discretion, immediately and without notice, take one or more of the following actions:
(i) terminate or suspend your right to purchase Notes; (ii) terminate this Agreement and your relationship with the Company, and (iii) repurchase your Note if the Note has been issued. Upon termination of this Agreement, any Note purchase commitments you have made shall be terminated.
17. Bankruptcy. In the event that you file or enter bankruptcy, insolvency or other similar proceeding, you agree to use the best efforts possible to avoid the Company being named as a party or otherwise involved in the bankruptcy proceeding. Furthermore, this Agreement should be interpreted so as to prevent, to the maximum extent permitted by applicable law, any bankruptcy trustee, receiver or debtor-in-possession from asserting, requiring or seeking that (i) you be allowed by the Company to return the Notes to the Company for a refund or (ii) the Company be mandated or ordered to redeem or withdraw Notes held or owned by you.
18. Miscellaneous Provisions.
18.1 This Agreement shall be governed by and construed in accordance with the laws of the State of (without regard to the conflicts of laws principles thereof).
18.2 All notices and communications to be given or otherwise made to the Subscriber shall be deemed to be sufficient if sent by electronic mail to such address as set forth for the Subscriber at the records of the Company (or that you submitted to us via the Site). You shall send all notices or other communications required to be given hereunder to the Company via email at firstname.lastname@example.org (with a copy to be sent concurrently via prepaid certified mail to: Kajaine Capital Inc, 205 Worth Avenue Suite #301, Attention: Investor Support.
Any such notice or communication shall be deemed to have been delivered and received on the first business day following that on which the electronic mail has been sent (assuming that there is no error in delivery). As used in this Section, “business day” shall mean any day other than a day on which banking institutions in the State of are legally closed for business.
18.3 This Agreement, or the rights, obligations or interests of the Subscriber hereunder, may not be assigned, transferred or delegated without the prior written consent of the Company. Any such assignment, transfer or delegation in violation of this section shall be null and void.
18.4 The parties agree to execute and deliver such further documents and information as may be reasonably required in order to effectuate the purposes of this Agreement.
18.5 Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of each of the parties hereto.
18.6 If one or more provisions of this Agreement are held to be unenforceable under applicable law, rule or regulation, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
18.7 The parties hereto hereby agree and acknowledge that a breach of Section 11 of this Agreement would result in severe and irreparable injury to the other party, which injury could not be adequately compensated by an award of money damages, and the parties therefore agree and acknowledge that they shall be entitled to injunctive relief in the event of any breach of any material term, condition or provision of Section 11 of this Agreement, or to enjoin or prevent such a breach, including without limitation an action for specific performance hereof, and the parties hereby irrevocably consent to the issuance of any such injunction. The parties further agree that no bond or surety shall be required in connection therewith.
18.8 In the event that either party hereto shall commence any suit, action or other proceeding to interpret this Agreement, or determine to enforce any right or obligation created hereby, then such party, if it prevails in such action, shall recover its reasonable costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorney’s fees and expenses and costs of appeal, if any.
18.9 This Agreement (including the exhibits and schedules attached hereto) and the documents referred to herein (including without limitation the Note) constitute the entire agreement among the parties and shall constitute the sole documents setting forth terms and conditions of the Subscriber’s contractual relationship with the Company with regard to the matters set forth herein. This Agreement supersedes any and all prior or contemporaneous communications, whether oral, written or electronic, between us.
18.10 This Agreement may be executed in any number of counterparts, or facsimile counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
18.11 The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. The singular number or masculine gender, as used herein, shall be deemed to include the plural number and the feminine or neuter genders whenever the context so requires.
18.12 The parties acknowledge that there are no third party beneficiaries of this Agreement, except for any affiliates of the Company that may be involved in the issuance or servicing of Notes on the Company platform, which the parties expressly agree shall be third party beneficiaries hereof.
19. Consent to Electronic Delivery. The Subscriber hereby agrees that the Company may deliver all notices, financial statements, tax reports, valuations, reports, reviews, analyses or other materials, and any and all other documents, information and communications concerning the affairs of the Company and its investments, including, without limitation, information about the investment, required or permitted to be provided to the Subscriber under the Note or hereunder by means e-mail or by posting on an electronic message board or by other means of electronic communication. Because the Company operates principally on the Internet, you will need to consent to transact business with us online and electronically. As part of doing business with us, therefore, we also need you to consent to our giving you certain disclosures electronically, either via the Site or to the email address you provide to us. By entering into this Agreement, you consent to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to your or our rights, obligations or services under this Agreement (each, a " Disclosure"). The decision to do business with us electronically is yours. This document informs you of your rights concerning Disclosures.
(a) Scope of Consent. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate.
(b) Consenting to Do Business Electronically. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below.
(c) Hardware and Software Requirements. In order to access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions; and hardware capable of running this software.
(d) How to Contact Us Regarding Electronic Disclosures. You can contact us via email at or by calling us at . You may also reach us in writing at the following address: Kajaine Capital Inc, 205 Worth Avenue Suite #301, Attention: Investor Support. You agree to keep us informed of any change in your email or home mailing address so that you can continue to receive all Disclosures in a timely fashion. If your registered e-mail address changes, you must notify us of the change by sending an email to email@example.com. You also agree to update your registered residence address and telephone number on the Site if they change. You will print a copy of this Agreement for your records, and you agree and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or posted on the Site.
20. Limitations on Damages. IN NO EVENT SHALL COMPANY BE LIABLE TO THE SUBSCRIBER FOR ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL BE INTERPRETED AND HAVE EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE OR REGULATION.
(a) Either party may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 21 (this "Arbitration Provision"). The arbitration shall be conducted in Palm Beach County, Florida. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and the Company (or persons claiming through or connected with the Company), on the other hand, relating to or arising out of this Agreement, any Note, the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of Section (e) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include (without limitation) matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
(b) The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
(c) If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). lf you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorney's fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
(d) Within 30 days of a final award by the arbitrator, a party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, an opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (the "FAA"), and may be entered as a judgment in any court of competent jurisdiction.
(e) We agree not to invoke our right to arbitrate an individual Claim that you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless otherwise provided in this Agreement or consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party, or (ii) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this sub-section (e), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this sub-section (e) shall be determined exclusively by a court and not by the administrator or any arbitrator.
(f) This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
(g) This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties; (ii) the bankruptcy or insolvency of any party hereto or other party; and (iii) any transfer of any loan or Note or any amounts owed on such loans or notes, to any other party. If any portion of this Arbitration Provision other than sub-section (e) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in sub-section (e) are finally adjudicated pursuant to the last sentence of sub-section (e) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
22. Waiver of Court & Jury Rights. THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT UPON ELECTION OF ARBITRATION BY ANY PARTY. THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER AGREEMENTS RELATED THERETO.
23. Authority. By executing this Agreement, you expressly acknowledge that you have reviewed the Memorandum, the Note and the Series Note Listing for this particular subscription.
[Signature page to follow]
IN WITNESS WHEREOF, the Subscriber, or its duly authorized representative(s), has hereby executed and delivered this Agreement, and executed and delivered herewith the Purchase Price, as of the date set forth above.
(Signature Page to Subscription Agreement)
By: Kajaine Capital Inc
of Kajaine Capital Inc
205 Worth Avenue Suite #301
I am the investor and the authorized signer.