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Ep #321 – Mark Roderick – SEC Attorney talks Real Estate Syndications
Here is some of what you will learn:
Real Estate Syndications
OPM (Other People’s Money) and Securities Laws
Understanding Securities Exemptions
Most common exemptions for syndications
The 506(b) exemption
The JOBs act
The 506(c) exemption
Understanding Reg A
Documents for Syndication (3)
To learn more about our guest please click here.
Full Transcript Below:
Mark Roderick – SEC Attorney talks Real Estate Syndications (Ep321)
Intro: Hi! I’m Rod Khleif. Each and every week I record an interview with a thought leader that I know you’re gonna get a ton of value from. Now here on YouTube are the video versions of my podcast, Lifetime Cash Flow through Real Estate Investing. Now to make sure you get the latest information please subscribe and hit the notification bell. Let’s get started.
Rod: Welcome to another edition of “How to Build Lifetime Cash Flow through Real Estate Investing”. I’m Rod Khleif and I’m thrilled you’re here. And this is a little funny. The guy I’m interviewing today, I previously interviewed, and Rod, who is old as dirt, forgot to hit the record button. So he has been gracious enough, it was really embarrassing when this happened, we’re halfway through an awesome interview and he’s been gracious enough to come back on the show. His name’s attorney Mark Roderick and we’re actually using Mark, he’s an SEC attorney, we’re actually using him for one of our deals and really excited to start a relationship but his resume is really very very impressive and we’re dig into syndications on this show and just very lucky to have him. Mark, welcome to the show my friend
Mark: Thank you very much for having me again
Rod: Oh man the humiliation never ends. Before we’ve recorded, I’ve had two of my team members text me and message me to make sure I hit the record button and you know it’s just never pretty. But anyway, welcome my friend. So let’s get right into it. I know you know you’ve been practicing for a long time 25 years and you represent individuals in business and all sorts of business type. What’s the word I’m looking for .. business needs but really we’re gonna talk about your SEC experience today. So if you don’t mind let’s just get right to it and talk about why someone needs you and maybe a brief overview of you know the syndication process, the exemption process and the different nuances associated therewith
Mark: Okay well let me try to jump in and make it all make sense in some context and yes I’m actually been practicing as I always say since 1840, a lot of years. So what is all this about? Let’s try to put it in an overall context cuz that’s the way my brain thinks better. So if you’re a real estate guy like you, and you know you have a project you want you want to buy a value-add multifamily for example very hot sector these days. And of course you can just do it yourself and you need a lawyer, you need a real estate lawyer. You’re gonna buy the real estate, you’re gonna invest your own money put it on your credit cards or your wealthy guy, you have the money you borrow money from banks you do it all yourself no problem. There are no securities laws involved there so you don’t have to call me or another securities lawyers. The minute you say to yourself hey you know I think I could do better if I used other people’s money OPM. I want to use other people’s money and you know what I’m doing them a favor cuz I’m getting them involved in a really good deal and they’re gonna make money, I’m gonna make money. And because now I’m using their money, now instead of doing one deal at a time which exhausts all my capital now, I can do four deals because I can use put a little bit of my money in each deal but you know fill out that capital stack with other people’s money. So the minute I use other people’s money that’s when securities laws leap into play. And the sort of big overview the US securities laws that our modern securities laws were all enacted in the 1930s after and in response to the Great Depression and that’s why you have like the Securities Act of 1933, the Exchange Act of 1934. That’s not coincidental because the Great Depression was in many senses caused by the complete collapse of the American capital markets. And so one of the first things he did when he was elected in 1932, Franklin Roosevelt took steps to re-establish, reinvigorate the American capital market. So that’s where all our laws date from. Anyway general rule, anytime you use other people’s money in whatever form, whether you borrow money, whether it’s from your grandmother, or a complete stranger, if it’s other people’s money you’re using, then that means the securities laws come into effect and the general rule of the securities laws is that you have to register. So if you want to use other people’s money, you start with the general proposition that you have to spend millions of dollars to fully register your company and the offering with the SEC the same way like a big company, like Facebook would. However, of course that would be ridiculous if every little company had to do that. So there are exemptions that’s why you hear securities lawyers talk about exemptions. They mean exemptions from the registration requirement and there are all kinds of exemptions. And a lot of what securities lawyers like me do is they look at a given transaction and they say well what exemption would work best for you? There’s not just one exemption there are dozens of exemptions and we’re gonna talk about some of them today. But the key is to put it in context these are all exemptions to the overriding registration requirement in Section 5 of the Securities Act. So that’s everything we’re talking about is a subset
Rod: So that’s the overview and so let’s dig into the three most common exemptions that you encounter. So let’s start with the 506 B if you don’t mind
Mark: Sure. Okay so 506 B, that is an exemption that has been around since 1982 and for many of, for you and many of your listeners that’s kind of the old-fashioned private placement exemption and basically what it says is that if you follow a few rules which I’ll talk about, then you’re exempt. You don’t have to register. You don’t have to spend millions of dollars and what is more if you qualify under Rule 506 B which is a federal rule, then you also don’t have to register under any of the state registration laws because in our federalist system, federal government has a securities laws, every state has its own securities laws. So 506 B, there are very few requirements. One requirement is that either all of your investors are accredited okay or you can have up to 35 in each deal, 35 non-accredited. So that’s one rule the kinds of investors. You can either have all accredited or up to 35 non-accredited in each deal
Rod: Now if you don’t mind let’s digress for one second and talk about what accredited is before we move further that’s okay
Mark: All right sure absolutely and again I’ll just go quickly back to the historical context. One of the fundamental features in our securities laws since 1933 has been rich people can protect themselves because they can hire accountants and lawyers and other people like that and non-rich people cannot protect themselves and need the paternalistic arm of the government around their shoulders and that system has worked pretty darn well and so the term accredited, what it really means used to mean is rich people and so there have always been different sets of rules whether you were selling to rich people or non-rich people, accredited, the definition comes from 1982 and for a person an individual human being it means your income is at least 200 or 300 with your spouse or your net worth is a million without your house. Now as you know you and your listeners probably immediately realize those numbers were a lot bigger in 1982 than they are now. They have not been changed, not been indexed for inflation. So is rich two hundred thousand? Well it’s not poor but it’s not what it used to be in 1982.
Rod: Well that’s a very interesting distinction. I hadn’t even thought about that and yeah back in 1982, let’s see, I was 22 years old, a couple hundred grand was big money
Mark: It’s absolutely
Mark: It was you know I think the equivalent inflation adjusted is five or six hundred thousand yeah today.
Mark: So the value has really diminished and yet the SEC hasn’t changed those numbers and what that actually means as an aside is there’s a lot less wrongdoing in the private securities markets than people thought there was going to be. But that’s just an aside
Rod: So again not to go down another rabbit hole but kind of have to circle back on something else because you know there’s also the term “sophisticated” Can you just speak to that for a moment because I know in our last conversation you really said everybody else but can you kind of just you know go dig deep
Mark: Yeah so technically for someone to invest in a rule 506 B offering the person either has to be accredited or be by definition non-accredited but also sophisticated, able to count to ten this is what that really amounts to. So you always see on the questionnaires, yes I’m you know I’m really sophisticated person you know
Rod: So it’s so policed basically
Mark: And I have never, as I said in my for the first time, I never in my career of doing this for a long time had someone say, “No, I’m not sophisticated you know I’m the dummy in the room” although that is technically a requirement. I’ve actually never seen it coming to play. Now if it does if you have someone says man I am just dumb. I don’t know even how I got here that person can still invest if he or she has a purchaser representative who is qualified. In other words holding his hand through the process but again no one ever says that they’re not sophisticated
Rod: So there you have it. I get this question a lot so there you have it okay. Well I appreciate you digressing on that. So back to the requirements for a 506 B
Mark: Yes and I’m almost done because there aren’t very many. So who can participate is one and it’s either accredited or up to 35, sophisticated and you think about you know Steve Martin you know the old skills from Second Life. We are wild and crazy guys. So that’s the sophistication standard and then the other requirement is that, if there are any even one non accredited investor then you have to provide specified information in fairly thick book of information. Again that’s consistent, it’s not arbitrary. It’s consistent with this theme of you know the government, non-wealthy people need the government’s protection. So who can participate what information is provided and those are the two requirements okay 506 B and not surprisingly 506 B has been extremely popular, billions, trillions of dollars have been raised using 506 B
Rod: Yeah I mean I remember back in the day when I was wet-behind-the-ears that we had what was called the three touch rule. You had to have a relationship with the “sophisticated” investor. You couldn’t advertise to them
Mark: That is correct yeah I should have said that yeah. The old 506 B no advertising
Rod: Right so you can’t advertise under that one at all and I’m seeing people bump up against that right now. In fact I just got an email this morning that I really felt like crossed the line as with a 506 B offering but anyway. So 35 non-accredited “sophisticated” investors and the rest can be all accredited and you can’t advertise. So then now let’s talk about what then became the belle of the ball back with I think it was with Dodd-Frank right? which was 506 C?
Mark: It wasn’t Dodd-Frank, it was the JOBS Act
Rod: Jobs Act that’s it that’s it okay
Mark: Jump start our businesses Act signed into law by President Obama in 2012. So one of the other two central tenants of securities laws as you have just reminded me was that public deals, you could advertise, Facebook, you can advertise. Private deals your little real estate syndication you could not advertise okay
Rod: Just just let me let me let me exclamation mark what you just said because what he means by public deals is like an IPO okay like use Facebook as an example. Anything on the stock exchange you know you can advertise because they spend millions of dollars for that you know or really a lot of money and maybe not millions in some cases but a lot of money to be able to do that through an SEC licensed dealer and all of that business. So okay right please continue
Mark: But private deals you couldn’t advertise and so any of you were your listeners who has been through the money raising process over the last 35 years knows what that led to. It led to a highly fragmented, highly inefficient system where it matters whom you know. So when you wanted to raise money for that syndication the first one you did, you thought well let’s see, who are my buddies? who’s my accountant? who’s my lawyer? do they have any money? do they know people who have money? So you start making phone calls, you start going to meetings, but you’re reaching people very inefficiently because it just depends on whom you happen to know, where you live right. It’s a lot easier to raise money in Manhattan it is in South Dakota and all those things super inefficient market. Along comes the JOBS Act and says for the first time in the history of US securities laws, even these little private deals, your real estate syndication you can now advertise in any way you want to. So now rather than only calling your lawyer or your accountant or the members of your Country Club and I know you belong to several very well-known for that. But now you can, any of your listeners this afternoon can put up a website that potentially reaches every freaking investor in the world okay and that I just you can tell I mean that is just such a super big deal
Rod: I mean it was it was so huge when it was announced to say, “Oh my God, the clouds have parted. Now you can you know really you know maximize this incredible opportunity”
Mark: Yes and let me just make a couple points there. One, it’s just the Internet. I always stay fortunately there’s lots of legal rules behind all this stuff so like you have to hire me thank goodness. But it’s just the Internet and that’s what your listeners should think. This is just the internet coming to the capital formation business. It’s that simple. What does the internet do when it came to the retail industry? or to the music industry? or to the travel industry? the taxicab industry? or match.com? What it does is allows buyers and sellers to connect directly without all those middlemen. And if you just think about that
Rod: I love that analogy yeah I love it
Mark: The role the internet plays in our lives generally. The JOBS Act is just allowing the internet to infiltrate, kind of get the camels nose under the tent, into the capital formation industry. Capital formation industry is a gigantic industry compared to travel or Airbnb, multitrillion-dollar year industry in dire need of disruption. So that’s one point I wanted to make and the other point which often gets lost because people like you and me, you’re a syndicator, I’m a lawyer who represents syndicators. So we talk about it from the sellers point of view but it’s absolutely critical to bear in mind that the only reason this works is not only is it great for you because you can reach every investor in the world. It’s great for the investors because for the first time in American history, ordinary average American investors can now see every deal in the world
Rod: Yep which was previously really reserved for you know, people at the country-club set and all of that
Mark: That’s exactly the point
Rod: Glad you said that. I think you know really really
Mark: But I mean that’s why it works and that’s why the more it grows, we’re all better off because it democratizes capital and let’s talk about it. And so seriously I mean it’s really seriously great stuff
Rod: So 506 C
Mark: 506 C is just like 506 B but a couple tweaks. One tweak is that only accredited investors can participate right. So 506 B I said up to 35 non-accredited, not in 506 C, only accredited. And the second rule as we’ve just talked about is you can advertise right there’s no advertising you cannot do. You can advertise on the internet you can pull a banner behind a plane at the shore anything any advertising is permitted, doesn’t mean you can lie in your advertising, but the form of advertising is unlimited in rule 506 C.
Rod: That’s a beautiful thing beautiful thing okay
Mark: But let me just say so I actually this question difference between 506 B, 506 C, always comes up. I wrote a blog post about it and here’s the example that I used in my in my blog post that seems to kind of draw the right picture for most people. You have a jewelry store and there’s two ways to get customers in the door. One way is in the store window there’s no jewelry but there’s a sign that says we have a lot of beautiful jewelry and inside and maybe there’s a handsome groom and a handsome bride and he’s proposing and you sort of paints a picture of, “Wow, jewelry is wonderful” You have to come in the door and introduce yourself to see the jewelry. That’s 506 B deal. The 506 C deal is the jewelry is right there in the window. It’s gorgeous pearls, diamonds, whatever right. That’s a 506 C deal. Your advertising in 506 C, there it is right there, the deal. It’s not an invitation to see a deal. It is the deal.
Rod: Got it yeah. That’s awesome that’s awesome. Can we now talk about I guess what’s becoming one of the bells of the ball Reg A?
Mark: Yes we can and Reg A just like rule 506 B and rule 506 C, is just another exemption to the general registration requirement. Totally different than rule 506. The main features of rule of Regulation A and it’s often called regulation A+. It’s just regulation, so the main feature is you are allowed to sell to non-accredited investors, 506 B can sell up to 35 non-accredited investors Regulation A you can sell a thousands
Mark: Really as many non-accredited as you want. There is a limit on how much you can raise. You can raise up to 50 million dollars per year which for your normal syndicator it’s likes huge a huge deal. For a big public company it’s a small deal but you can raise up to fifty million dollars a year, you can include as many non-accredited investors as you want but again the paternalistic arm of the government, non-accredited investors, the price of admission to be able to do that if you have to put together a big thick book for the SEC. And not only put it together but you have to have it approved by the SEC. So it is very much like that Facebook full public offering not in quite as extensive but it’s a time-consuming and relatively speaking expensive process
Rod: Can we speak about how expensive? I mean lean out there as far as a range to do a Reg A I know you have to you have to have an audit of the books. Now you could be auditing a checking account that’s hasn’t had any activity I would guess in that scenario in some scenarios but is that correct? could you expand?
Mark: That is correct. You do have to have an audited financial statements those are not very expensive and for a start-up they’re not nothing at all. The cost is in paying me or someone like me to put together the book and get it through the SEC. And the cost is going to be between good numbers between 50 and 75 thousand dollars
Mark: Unless you go to a big Manhattan firm and then it’s $350,000
Rod: And what about the timeline?
Mark: The timeline if you have a pretty straightforward deal these days, five months is a pretty good timeline from like starting today. I have at my blog a whole bunch, whole section of the blog called Regulation A resources, all about Regulation A. But to answer your question, one of the items there is this beautiful graphic timeline week-by-week showing what you should be doing each week during that period but about five months
Rod: Do you find that most people are using that vehicle for funds versus property specific needs?
Mark: Yes so far pretty much exclusively so
Rod: So you put a fund together so you can buy multiple properties and what’s beautiful about it though is if you have enough of an advertising acumen or you have a big enough rolodex for lack of a better word, list of potential clients then you can take non-accredited investors and really you know open it up so
Mark: That is right and you just hit on the key points. So people say, I’ll be speaking yesterday actually to a group just like you guys super good at marketing, very successful they know what they’re doing and they said well should we, you know we’ve been very successful using rule 506 C should we expand to Regulation A? The answer is not necessarily, “Oh absolutely get bigger and bigger” but the answer is if you want to raise money from non-accredited investors and there’s a couple reasons why you might. One is non-accredited investors have money. So sure the more capital you know the deeper your well of capital the better and the other is a more idealistic reason and I’ve had a bunch of people say this to me you know, we have great deals, we want to make them available to the broader American public and that is a perfectly legitimate reason for expanding from 506C to Regulation A
Rod: Yeah I’ve seen some of my contemporaries you know offer these Reg A offerings and they’re letting people in with a minimum of $5,000 which is you know a whole lot of hand-holding but hey whatever works you know
Mark: I’ve had, my clients do very successful regulation a offerings at $100
Mark: A hundred dollars and that came from idealism, like really folks really wanting to say hey we want the American public everyone in the America
Rod: I love that. I love that motivation. If that’s real, that’s a beautiful thing. Absolutely love it. So let’s talk for a minute now about the documentation required. Let’s take the mystery out of you know people think syndication oh my god that’s so intimidating, it’s so scary. Can we demystify you know the process and the documents involved?
Mark: I certainly hope not. Let me start the smoke signals coming up here because it’s a big mystery. So in any syndication what you’re really talking about is three documents
Mark: One document is often called the subscription agreement. It used to be called I call it an investment agreement because no one knows what the heck a subscription agreement is and it’s just a document whereby the Investor agrees to invest in your deal right. And they are like so many things in the law you know the law is like ship in the sea and it collects barnacles and so these things get longer and longer and longer. They never get shorter but
Rod: Kind of like the tax code
Mark: Like the tax code. So the subscription agreement or investment agreement should be a pretty simple straightforward document. I hereby agreed to buy this limited liability company interest. That’s the subscription
Rod: Membership interest in this LLC yeah okay
Mark: Exactly okay that’s one document very straightforward. The other document is the partnership agreement or operating agreement or limited liability company agreement. The agreement that governs the organization that owns the real estate
Rod: The entity
Mark: The entity agreement let’s call it that and that’s the agreement that most, well it says a lot of important things but it talks about how much people are gonna contribute, it talks about who’s gonna make decisions, which in your case your this indicator you’re gonna make all the decisions, and then critically it talks about how the money’s gonna get distributed. So that’s when your deal has a seven percent preferred return with a 30 percent promote that’s the agreement that spells out those cryptic sounding terms in unhopefully understandable crisp clear language that is not ambiguous. It also includes other stuff if your this indicator and I’m representing you I put all kinds of stuff in there to protect you that you know says investors can’t see you even if you make mistakes and stuff like that. Sso that’s the entity agreement that governs the actual operation of things
Rod: Back in the day used to be a general partnership agreement and you’d have a General Partner and limited partners but now the belle of the ball for entities is obviously LLC’s-Limited Liability Companies okay alright
Mark: And then the third document is generically the disclosure document. Often called a PPM which stands for Private Placement Memorandum. But again no one knows what that means. So I call it a disclosure document because that’s what it is. It’s a big document that hopefully describes the deal to investors in enough detail that they understand the deal, the potential benefits of the deal, and the risks of the deal. So that’s the thickest of the three documents and it takes the longest to produce. They are,
Rod: Well that PPM, let’s hone in on that for one second. That’s the document that will tell you how everything can go wrong and what can go wrong and it’s really disclosing every potential risk as much as possible and not sugarcoating it right?
Mark: Not sugarcoating at all you know the first time I’ve had the experience so many times, a client who has never done it before comes to me I prepared the disclosure document for him, I send it to him, he’s eagerly waiting it. He calls me and says what did you do? Nobody’s gonna invest in this deal if they read this. And then I say okay well then I know I was successful writing that because I mean it should talk about the benefits of the deal too but it does talk about risks because these are after all risky ventures in the real-estate market we’ve had for the last like 10 years. I think we’ve all forgotten some of those risks
Rod: oh yeah
Mark: We know what goes around comes around
Rod: Right yeah and that’s what the document that pretend protects you guys I mean that’s why you wanted as comprehensive and you do not want to minimize any of the any of the disclaimers and the risks associated with the deal and that’s why you need someone like Mark here for sure
Mark: So you also, I mean this is a pet peeve of mine, legal documents are a pet peeve of mine because usually they’re so bad and unreadable and so he will also, you want that thing to be readable you want someone of an eighth grade education to be able to sit down and read it and understand what they’re getting into. That’s is ideally what you would like
Rod: No I love it but that makes complete sense. So let me ask you this. What should a passive investor look for in one of these documents? I mean can you give a few tips you know we’ll kind of round out the interview with that? What should someone look for?
Mark: Well that question, excellent question, it raises some fundamental issues about all of our securities laws. And I say that for this reason, because you know you’re a real estate expert right I’m not. I’m a real estate lawyer expert but I’m not a real estate expert. I have written more of these documents that I could possibly count and yet if I’m a passive investor, looking at a private placement memorandum or disclosure document from scratch, I am actually truth be told going to have a really hard time deciding whether this is a good deal okay. You are going to you’re an expert you’re gonna look at that deal and you’re gonna say well what about this, what about this, cuz you know real estate right. The kind of ugly truth behind all of this legal stuff is that most passive investors simply do not have the knowledge no matter what how long the document is, to be able to distinguish a good deal from a not-so-good deal
Rod: I’m so glad you said that. I am so glad you said that because I’ve been shouting from the rooftops that if you’re gonna invest in anything, for God’s sakes you have a basic understanding of it. I don’t care if it’s an IPO or a business or where the stock market or real estate and you know and let me just say this, I mean I do three-day events and we dig into this and they’re cheap and it’s just me on stage for three days teaching and it’s kind of a no-brainer to spend a couple hundred bucks to come sit and watch my ugly mug for three days to have a basic understanding of this business because it’s so critical and you know I’m so glad you said that
Mark: You know yeah I mean, so now we’ll get down to actually answering your question
Rod: All right
Mark: For me, for a passive investor, the documents are part of the equation, not the most part by far the most important part is whom I’m investing
Rod: The operator
Mark: The operator yes. I know you. I know your track record that’s what I’m investing with and that it’s 80 percent. Now at the same time to answer your question, if I’m a passive investor and I open the documents and I don’t understand them, if there’s duplicative and they just don’t seem to make sense then I would stay away because there tends to be and there is a correlation again in my hundred years of practicing law. There’s a correlation between sloppy documents and sloppy operators
Rod: Couldn’t agree more
Mark: And there’s also a correlation between good concise documents and good concise operators. I don’t know why exactly but there is a correlation there. So if I know the operator, I know is track record, and the documents make sense, even though I’m not a real estate expert, I’ll invest. If they don’t, I won’t. That’s my best advice
Rod: Yeah no that’s very sound and you know a high level for sure way to protect yourself because somebody that’s been around a long time and as an ideally even gone through a contraction and seeing what can happen it really makes a big difference there you know and there are a lot of deals I’m seeing right now that frankly make the hair on the back of my neck stand up you know we’ll be in the best and final on a deal and then somebody comes in and pays millions more and I’m just scratching my head you know and you know we just had a conversation about this with my CFO Robert and my students about you know how an operator can adjust the split to make a mediocre deal look better and it’s just it’s just a little scary.
Mark: Well I see, I think I know we reached the end at the time I think it’s a real challenge for it like you as a successful operator, these days to be explaining to investors that listen the market is not what it was five years ago, the deals are harder to come by. So we’re going to project probably lower yields on the deal we’re selling you today than we did four years ago. That’s not because we’re bad guys right because it’s good
Rod: And lower leverage like we’re doing our deals at 65 percent loan to value right now there’s deals out there at 80 percent and people with you know so like comparing an eighty percent leverage deal that maybe a 90/10 split to the investor to a 65 percent leverage deal that’s only a you know maybe a 70/30 split for example which deals better. And I’m gonna tell you it’s gonna be the lower leveraged ones because they’re safer and you know we’ve seen deals where they haven’t stress tested them you know to make sure they can they can survive a contraction or they don’t have hardly anything in operating capital for a rainy day fund it just kind of some scary stuff. And you guys all dig into this a little bit more but I’m not gonna take any more Mark’s time. Thank you so much brother for first of all for coming back and then second of all for the incredible wisdom you’ve shared. Now your website address correct me if I’m wrong is crowdfundATTNY like attorney abbreviated crowdfundATTNY.com correct?
Mark: That is correct
Rod: And that’s where your blog is as well?
Mark: That is my blog
Rod: Perfect well that’s got to be an incredible resource. I’m looking forward to seeing how our deal goes together and it’s really been a treat today Mark. I appreciate your wisdom and I look forward to shaking your hands one day soon.
Mark: Thank you very much same here Rod
Rod: All right take care
Mark: Take care
Rod: See you
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