Terms and Conditions

TERMS OF USE

Welcome to the investment platform of Holdfolio.

Please read these Terms of Use (the “Agreement” or “Terms of Use“) carefully before using our website (the “Site“). By using the Site, even just browsing, you agree to be bound by this Agreement.

These Terms of Use constitute a legally binding contract between you and Holdfolio, LLC (the “Company“). If you have any questions about its meaning you should consult with an attorney before using the Site.

IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH THESE TERMS OF USE, PLEASE DO NOT USE THE SITE

Summary of Service

This is an electronic platform where prospective investors can browse investment opportunities and make investments from among those opportunities. Prospective investors can also participate in blogs and chat rooms, read educational materials, and take advantage of other features that we might add from time to time. We refer to what we do on the Site as the “Service.

We refer to anyone who uses the Site, even just to browse, as a “User.

We refer to the images, text, and other content you see on the Site as “Content.” On some parts of the Site, Users can upload Content.

Acceptance of Terms; Changes in Terms

If you use the Site, even just to browse, you will be deemed to have consented to the terms of this Agreement. We may also ask you to indicate your consent more formally by checking a box or otherwise taking an affirmative action.

The Service is offered subject to acceptance of all of the terms and conditions contained in these Terms of Use and all other operating rules, policies, and procedures we may publish on the Site, which are incorporated by reference.

The Company may, at its sole discretion, modify or replace these Terms of Use by posting the updated terms on the Site. Unless otherwise indicated by the Company, any changes will become effective on a prospective basis from the date of posting. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.

The Company reserves the right to change, suspend, or discontinue the Service or any of its features at any time for any reason. The Company may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.

Eligibility

To use the Site you must be at last 18 years old and of legal age in your jurisdiction to form a binding contract. If you are not, you must stop using the Site.

We may, in our sole discretion, refuse to offer the Service to any person or entity and/or change our eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in those jurisdictions.

Relationship to Privacy Policy and Other Contracts

Our Privacy Policy is part of this Agreement.

In addition, we may ask that you agree to other terms and conditions depending on your use of the Site. All of such other terms and conditions become part of this Agreement.

There are no agreements or understandings concerning your use of the Site that are not reflected in this Agreement. This Agreement supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and the Company with respect to the Service.

Registration

You may browse the Site without registering, but as a condition of using certain aspects of the Service, you may be required to register with the Company and select a screen name (“User ID“) and password. You promise to provide accurate, complete, and updated registration information. You shall not use as a User ID any name or term that (i) is the name of another person, with the intent to impersonate that person; (ii) is subject to any rights of another person, without appropriate authorization; or (iii) is offensive, vulgar, or obscene. The Company reserves the right in its sole discretion to refuse registration of or cancel a User ID.

You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password for the Site. We will treat anyone who uses your User ID and password as “you” for all purposes, and we will hold you responsible for the activities of the person using your password. You will never allow any other person to use your account, nor will you use the account of any other User. You will immediately notify the Company in writing of any unauthorized use of your account, or other known account-related security breach.

Electronic Delivery

You consent to receive from the Company all communications including notices, agreements, legally required disclosures, or other information in connection with the Services electronically. The Company may provide the electronic notices by posting them on the Site. If you desire to withdraw your consent to receive notices electronically, you must discontinue your use of the Services.

Use of Site

You will use the Site only for the purpose for which it was intended, i.e., to provide the Service. You will not use the Site for any other purpose, whether personal or commercial. The Service is provided only for your own personal, non-commercial use, except as otherwise provided. You are responsible for all of your activity in connection with the Service.

Code of Conduct

You will not:

  • Upload, email, or otherwise transmit any images or other Content that are unlawful, obscene, harmful, hateful, invade the privacy of any third party, contain nudity or pornography, or are otherwise objectionable.
  • Disseminate materials that impact or invade the privacy of others, such as photographs, video clips, sound recordings, personally identifiable information, or other materials that reveal personal, private, or sensitive information about another person, without that person’s consent.
  • Submit material that is intentionally false, defamatory, unlawfully threatening, or unlawfully harassing.
  • Post Content that is false, misleading, or inaccurate.
  • Infringe any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy.
  • Transmit materials that contain any viruses or other computer-programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
  • Use the Service to artificially generate traffic or page links.
  • Use the Service in a manner that breaches any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
  • Use the Site in a manner that could disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site, such as through sending “spam” email.
  • Seek to obtain access to any materials or information through “hacking,” “data harvesting,” or through other means we have not intentionally made available to you through the Site.
  • Use the Site to violate any law, statute, or regulation (including, without limitation, those governing securities regulation, consumer protection, unfair competition, anti-discrimination, or false advertising) or for any other unlawful purpose.

Additionally, you shall not: (i) take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on the Company´s or its third-party providers´ infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures the Company may use to prevent or restrict access to the Service (or other accounts, computer systems, or networks connected to the Service); (iv) run Maillist, Listserv, or any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.

You shall not directly or indirectly: (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Service; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.

Our Obligation to Enforce Code of Conduct

We will enforce the Code of Conduct described above wherever we become aware of violations and deem enforcement to be necessary. However, we do not necessarily monitor the Site for violations and are not liable for any harm or damages caused to Users by another User´s violation of the Code of Conduct. If you believe the Code of Conduct is being violated, please contact us.

Our Right to Monitor

We may monitor your use of the Site, including email, and other Content you transmit through the Site, (ii) remove, edit, or refuse to post Content, (iii) restrict access from certain websites or other resources, and (iv) take any other actions we deem necessary in our sole discretion to protect our community of Users and our resources. You cannot expect that communications through the Site will remain private from us.

Our Right to Terminate Use

We reserve the right, with or without notice, to terminate or suspend your access to some or all of the Site if we conclude, in our sole discretion, that you have breached our Code of Conduct or these Terms of Use.

Tracking Visits and Use

To improve the Site and for our own business purposes, we may compile records of your visits to the Site and/or your visits to or use of various elements of the Site (for example, how many investment opportunities you view). All of this information is confidential and subject to our Privacy Policy.

Disparagement

You will not disparage the Company, the Site, or any other User.

Submitting Content

You submit Content (such as by posting on blogs or discussion boards) subject to the following rules:

  • You grant to us and other Users a royalty-free, non-exclusive, worldwide license, under your intellectual property rights, to copy, reformat, index, modify, display, distribute and put to commercial and other uses your Content, and to sublicense the same rights to others, with or without compensation. No compensation will be paid to you for any such use.
  • Your privacy is not protected with respect to any Content you submit, including your name, address, photographs, etc. We cannot guaranty that that other Users will use your Content in an appropriate or fair manner, or in a manner otherwise anticipated by you. Please use caution.
  • You will be solely responsible for any damage or loss to any party caused by your Content.
  • The reserves the right, at any time, for any reason, and without notice, to block, remove, edit, or modify any Content you submit. The Company reserves the right not to comment on the reasons for any of these actions.

Ownership of Intellectual Property

The Company owns or has the legal right to use all of the intellectual property associated with the Site and the Services. This includes, but is not limited to, our name, our trademarks and copyrights, the design of the Site, our trade secrets, our business methods, any artwork, text, video, photographs, or audio used on the Site, and our logos, tag lines, and trade dress.

You have no interest in any of this intellectual property, other than the right (which we may terminate or suspend) to use the Site and the Services in accordance with these Terms and Conditions. You shall not duplicate, publish, display, distribute, modify, create derivative works from, or exploit our intellectual property in any way.

In accordance with the Digital Millennium Copyright Act, the Company has adopted a policy of, in appropriate circumstances, terminating User accounts that are repeat infringers of the intellectual property rights of others. The Company also may terminate User accounts even based on a single infringement.

Your Duty of Confidentiality

The term “Confidential Information” means information (i) that is designated as “Confidential” or “Proprietary” at the time of disclosure or within a reasonable period thereafter, (ii) that is only available to Users who have registered at the Site, or (iii) a reasonable person would understand to be Confidential.

Confidential Information includes our business policies or practices, strategic plans, pricing, financial information and projections, marketing information and strategies, the names of Users of the Site, information relating to projects listed on the Site, including but not limited to the names of project sponsors, and information received from third parties that we are obligated to treat as confidential.

You shall keep all Confidential Information in confidence, and not use Confidential Information for any purpose other than as contemplated by the Site.You will use at least the same degree of care in safeguarding Confidential Information as you use in safeguarding your own confidential information and trade secrets, such as your social security number and secret business plans.

Notwithstanding the preceding paragraph, you may disclose Confidential Information if you are required to do so by legal process, provided that you promptly notify us in advance so we can seek a protective order or other relief.

Third-Party Sites

The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third-party websites, you do so at your own risk. Those other websites are not under the Company’s control, and you acknowledge that the Company is not liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of those other websites or resources. The inclusion on another website of any link to the Site does not imply endorsement by or affiliation with the Company. You further acknowledge and agree that the Company shall not be liable for any damage related to the use of any content, goods, or services available through any third-party website or resource.

Copyright Notifications

The Company will remove infringing materials in accordance with the Digital Millennium Copyright Act if properly notified that Content infringes copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify the Company’s copyright agent in writing. Your notice must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that you claim has been infringed;
  • A description of where the material that you claim is infringing is located on the Site, sufficient for the Company to locate the material;
  • Your address, telephone number, and email address;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  • A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

If you believe that your work has been removed or disabled by mistake or misidentification, please notify the Company´s copyright agent in writing. Your counter-notice must contain the following information (please confirm these requirements with your legal counsel or see the U.S. Copyright Act, 17 U.S.C. §512(g)(3), for more information):

  • A physical or electronic signature of the user of the Services;
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement made under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
  • The subscriber’s name, address, telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the user will accept service of process from the person who provided notification under subscriber (c)(1)(C) or an agent of such person.

Under the Act, any person who knowingly materially misrepresents that material is infringing or was removed or disabled by mistake or misidentification may be subject to liability.

If you fail to comply with these notice requirements, your notification or counter-notification may not be valid.

Our designated copyright agent for notice of alleged copyright infringement is:

Disclaimer of Warranties

THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

Without limiting the preceding paragraph, the Company, and its directors, employees, agents, suppliers, partners, and content providers do not warrant that (i) the Service will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the Service is free of viruses or other harmful components; or (iv) the results of using the Service will meet your requirements. Your use of the Service is solely at your own risk. Some states or countries do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.

Electronic Communications Privacy Act Notice (18 USC §2701-2711): THE COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEBSITE LINKED TO THE SITE. The Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on the Company”s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.

Limitations of Liability

IN NO EVENT SHALL THE COMPANY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE HUNDRED U.S. DOLLARS ($100.00), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity

You shall defend, indemnify, and hold harmless the Company, its affiliates, and each of its and its affiliates” employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees and other legal costs, that arise from or relate to your use or misuse of, or access to, the Service and Content, or otherwise from your submissions, violation of the Terms of Use, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with the Company in asserting any available defenses.

Assignment

You may not assign any part of your interest in this Agreement, or transfer your User account to another person.

The Company may assign, transfer, or delegate any of its rights and obligations hereunder without consent.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods. You agree that the Company and its Services are deemed a passive website that does not give rise to personal jurisdiction over the Company or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of Delaware.

Mandatory Arbitration

You agree that:

  • Any claim, dispute, or controversy arising out of, relating to, or connected in any way with the Site or our Services, Privacy Policy, or Terms of Use that you may have against the Company, other than Excluded Claims (as defined below), shall be resolved exclusively by arbitration, rather than through the court system.
  • Any claim we may have against you arising out of your activities with respect to the Site, other than Excluded Claims (as defined below), shall similarly be resolved exclusively by arbitration.
  • This arbitration shall be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”) (available at http://www.adr.org).
  • The arbitration shall be held in Wilmington, Delaware, or at another location that you and we select by mutual agreement.
  • There shall be no authority for any claims to be arbitrated on a class or representative basis. The arbitrator is authorized to decide only your or our individual claims; and he or she shall not consolidate or join the claims of other persons or parties who may be similarly situated (the “Individual-Claims-Only Requirement”).

The term “Excluded Claims” means:

  • A claim where we allege that you have infringed upon our intellectual property or the intellectual property of any third party.
  • Claims arising from your investment in a specific project.
  • Claims explicitly covered by another agreement.
  • Claims between you and another User.
  • Any claim of any nature, if the Individual-Claims-Only Requirement is determined to be invalid.

Excluded Claims may be subject to arbitration if, and only if, a separate agreement so provides. Otherwise, Excluded Claims shall be adjudicated through the court system.

Survival of Terms

This Agreement shall continue to apply even if you are no longer a User.

Miscellaneous

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced, provided that each party can obtain substantially all of the benefits contemplated initially. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our rights with respect to subsequent breaches.

Contact Information

If you have any questions about this Agreement, the Site, or the Services, please contact us at: [email protected]

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THE RISKS OF INVESTING

THE PURCHASE OF LLC INTERESTS IS SPECULATIVE AND INVOLVES SIGNIFICANT RISK, INCLUDING THE RISK THAT YOU COULD LOSE YOUR ENTIRE INVESTMENT. THE PURCHASE OF LLC INTERESTS IS SUITABLE ONLY FOR INVESTORS WHO FULLY UNDERSTAND AND ARE CAPABLE OF BEARING THE RISKS. SOME OF THE RISKS ARE DESCRIBED BELOW. THE ORDER IN WHICH THESE RISKS ARE DISCUSSED IS NOT INTENDED TO SUGGEST THAT SOME RISKS ARE MORE IMPORTANT THAN OTHERS.

 

SPECULATIVE NATURE OF REAL ESTATE INVESTING:

Real estate can be risky and unpredictable. For example, many experienced, informed people lost money when the real estate market declined in 2007- 2008. Time has shown that the real estate market goes down without warning, sometimes resulting in significant losses. Some of the risks of investing in real estate include changing laws, including environmental laws; floods, fires, and other acts of God, some of which may not be insurable; changes in national or local economic conditions; changes in government policies, including changes in interest rates established by the Federal Reserve; and international crises. You should invest in real estate in general, and in the Company in particular, only if you can afford to lose your investment and are willing to live with the ups and downs of the real estate industry.

 

NO GUARANTY OF DISTRIBUTIONS:

When you buy a certificate of deposit from a bank, the Federal government (through the FDIC) guarantees you will get your money back. Buying an LLC Interest from the Company is not like that at all. The ability of the Company to make the distributions you expect, and ultimately to give you your money back, depends on a number of factors, including some beyond the control of the Company. Nobody guarantees that you will receive distributions.

 

INABILITY TO ATTRACT AND/OR RETAIN TENANTS:

Our success depends on our ability to attract and retain tenants in our Rental Properties. The risks we face include the following:

  • Competition from other landlords could keep us from raising rents.
  • Changes in economic conditions generally, or in the Indianapolis, IN and Dayton, OH areas in particular.
  • Existing tenants might not renew their leases.
  • Our Rental Properties could remain vacant for extended periods.
  • A tenant could default on its obligations, or go bankrupt.
  • Certain of our properties may be specifically suited to the needs of a certain type of tenant and we may have difficulty leasing such properties in the event of a vacancy.

 

Any of these circumstances would hurt the Company financially. If a vacancy continues for a long period of time, we may suffer reduced revenues resulting in less cash available to be distributed to shareholders. In addition, the resale value of a property with vacancies could be decreased because the value of a property may depend on the value of the leases of such property.

 

NEED TO RENOVATE PROPERTIES:

We might need to renovate our Rental Properties to make them competitive in the market. The more we have to spend to renovate our Rental Properties (assuming we can find the capital to do so), the lower the returns to our investors.

 

PROPERTY VALUES COULD DECREASE:

The value of the Rental Properties we own could decline, perhaps significantly. Factors that could cause the value of our Properties to decline include, but are not limited to:

  • Changes in interest rates
  • Competition from new construction
  • Changes in national or local economic conditions
  • Changes in zoning
  • Environmental contamination or liabilities
  • Changes in local market conditions
  • Fires, floods, and other casualties
  • Uninsured losses
  • Undisclosed defects in property
  • Incomplete or inaccurate due diligence

 

ILLIQUIDITY OF REAL ESTATE:

The Company might not be able to sell Rental Properties as quickly as or on the terms that it would like. For one thing, we cannot predict how long it will take to find a willing and able buyer. For another thing, we might be required to expend significant amounts of money to correct defects or make improvements before a property can be sold. The overall economic conditions that might cause the Company to want to sell Rental Properties are generally the same as those in which it would be most difficult to sell.

 

OPERATING EXPENSES:

The costs of operating real estate – including taxes, insurance, utilities, and maintenance – tend to move up over time. We have limited control over some of our operating costs, and if our costs increase it may reduce the amount available for distribution to investors.

 

REGULATION AND ZONING:

Like all real estate, our Rental Properties are subject to extensive building and zoning ordinances and codes, which can change at any time. Changes in these laws and regulations could affect the Company adversely.

 

CASUALTY LOSSES:

A fire, hurricane, mold infestation, or other casualty could materially and adversely affect the operation of the Company, even if the Company carries adequate insurance.

 

UNINSURABLE LOSSES:

The Company will maintain insurance against certain kinds of losses, such as losses from fires. However, there are certain types of losses which either cannot be insured at all or cannot be insured for a reasonable cost.

 

LIMITED WARRANTIES FROM SELLERS:

In most cases, the Company will be required to purchase a property in “as is” condition, with few if any representations or warranties by Seller. If we learn that a property has defects after closing, we may not be able to look to the seller for reimbursement.

 

LIABILITY FOR PERSONAL INJURY:

As a landlord, we might be sued for injuries that occur in or outside our Properties, e.g., “slip and fall” injuries. Although we expect to carry insurance against potential liability in amounts we believe are adequate, it is possible that we could suffer a liability in excess of our insurance coverage.

 

ENVIRONMENTAL RISKS:

We will conduct typical environmental testing on the properties we acquire to determine the existence of significant environmental hazards. However, it is impossible to be certain of all the ways that the properties have been used, raising the possibility that environmental hazards could exist despite our environmental investigations. Under Federal and State laws, moreover, a current or previous owner or operator of real estate may be required to remediate any hazardous conditions without regard to whether the owner knew about or caused the contamination. Similarly, the owner of real estate may be subject to common law claims by third parties based on damages and costs resulting from environmental contamination. The cost of investigating and remediating environmental contamination can be substantial, even catastrophic.

 

ADA COMPLIANCE:

The Americans with Disabilities Act of 1990 (the “ADA”) requires certain buildings to meet certain standards for accessibility by disabled persons, and we may be required to comply with its terms. If our Rental Properties are not compliant with all requirements of the ADA or if additional requirements are imposed in the future, whether pursuant to the ADA or otherwise, we would need to make modifications to those Properties, potentially at significant expense.

 

THE COMPANY IS A NEW BUSINESS WITH A LIMITED TRACK RECORD:

The Company is a new business with a limited track record, making it difficult for Investors to gauge our investment strategy. Like any new business, we face challenges on a number of fronts, including:

  • Developing a reputation and brand identity
  • Attracting, retaining, and motivating qualified executives and personnel
  • Implementing business systems, including technology systems
  • Raising capital
  • Controlling costs
  • Responding effectively to the offerings of existing and future competitors
  • Managing growth and expansion
  • Implementing adequate accounting and financial systems and controls

There is no assurance that we will be successful on all (or any) of these fronts.

 

INCOMPLETE DUE DILIGENCE:

We intend to perform “due diligence” on each Rental Property we buy, meaning we will seek out and review information about the property. However, due diligence is as much an art as a science. As a practical matter, it is simply impossible to review all of the information about a given piece of real estate and there is no assurance that all of the information we will review will be accurate or complete in all respects. For example, sometimes important information is hidden or simply unavailable, or a third party might have an incentive to conceal information or provide inaccurate information, and we cannot verify all the information we receive independently. It is also possible that we will reach inaccurate conclusions about the information we review.

 

LACK OF DIVERSIFICATION:

We will own a limited number of Rental Properties in a select market and in a concentrated geographic location, or to put it another way, our portfolio of real estate will not be “diversified.” The diversification of a portfolio reduces both volatility and risk, which means that our portfolio is likely to be more volatile and more risky than if we had purchased a greater number of properties, purchased properties in geographic locations outside of Indianapolis, IN and Dayton, OH, or invested in properties outside of residential market (e.g., commercial properties).

 

UNRELIABLE FINANCIAL PROJECTIONS:

We have prepared financial projections reflecting what we believe are reasonable assumptions concerning the conduct of our business. However, the nature of real estate development and investment is such that at least some of our assumptions are likely to be mistaken, either for better or for worse, so that the actual results of investing in the Rental Properties are likely to be different than the results reflected in the projections, possibly by a wide amount. Investors should be skeptical of financial projections in the real estate industry, not because developers intend to be misleading but because the industry is so volatile and difficult to predict.

 

PRICING OF ASSETS:

The success of the Company and its ability to make distributions to Investors depends on its ability to gauge the value of real estate assets. Although the Manager will rely on various objective criteria to select properties for investment, ultimately the value of these assets is as much an art as a science, and there is no guaranty that the Company and its advisors will be successful.

 

RISKS ASSOCIATED WITH DEVELOPMENT AND CONSTRUCTION:

We might renovate or repair our Rental Properties from time to time, as needed and if consistent with our overall investment strategy. Development and construction can be time-consuming and are fraught with risk, including the risk that projects will be delayed or cost more than budgeted.

 

RELIANCE ON MANAGEMENT

: You will not have a right to vote or otherwise participate in managing the Company, except on very limited matters. Instead, the Manager, along with its affiliate Sonder Homes (our property manager), will have full control over the business and management of the Company. As a result, the success of the Company – and its ability to make payments with respect to your LLC Interests – will depend almost exclusively on the skills of our Manager and its principals. Therefore, you should purchase an LLC Interest only if you are willing to rely on the ability and judgment of management and these third-party operators. If the principals of our Manager resign, die, or become ill, the Company and its Investors could suffer.

 

RISKS ASSOCIATED WITH LEVERAGE:

The Company may borrow money from banks or other lenders to refinance Rental Properties, purchase assets, or to finance development costs or other expenses. Borrowing money to purchase assets is sometimes referred to as “leverage.” While using leverage can increase the total return on the borrower’s equity, it also increases risk because the amount borrowed has to be repaid in accordance with a schedule. To repay its loans, the Company might have to sell assets at a time when values are low, for example.

 

BREACHES OF SECURITY: It is possible that our systems would be “hacked,” leading to the theft or disclosure of confidential information you have provided to us. 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, we and our vendors may be unable to anticipate these techniques or to implement adequate preventive measures.

 

NO MARKET FOR THE LLC INTERESTS; LIMITS ON TRANSFERABILITY:

There are at least three obstacles to selling or otherwise transferring your LLC Interest:

  • There will be no public market for your LLC Interest, meaning you could have a hard time finding a buyer.
  • The Operating Agreement prohibits you from transferring your LLC Interest without the consent of the Manager.
  • By law, you may not sell your LLC Interest unless it is registered under applicable securities laws or the transfer is eligible for an exemption from registration.

Taking all that into account, you should plan to own your LLC Interest indefinitely.

 

NEED FOR ADDITIONAL CAPITAL:

The Company might need more capital, whether to renovate one or more Rental Properties, to acquire additional properties, to carry the Company through periods when our rental income is insufficient to cover our operating expenses, to pay for uninsured losses, or otherwise. We might seek to raise additional capital through debt (borrowing money) or through equity (selling interests in the Company) or both. However, there is no assurance that additional capital will be available at the time it is needed, and if the Company needs but cannot obtain additional capital it is possible that the Company could fail. Even if additional capital is available, it could be on terms that are adverse to the interests of the Investors. A loan, for example, could bear a high interest rate or other onerous terms, while raising additional capital in the form of equity could dilute the interests of the Investors.

 

SUBORDINATION TO RIGHTS OF LENDERS:

The right of Investors to receive distributions from the Company is subordinate to the rights of the Company’s lender(s). In the event the Company were to default in its obligations to the lender(s), the Company might be prohibited from making further distributions to the Investors until the default had been cured.

 

LACK OF CASH TO PAY TAX LIABILITY:

The Company will be treated as a partnership for tax purposes. Consequently, your share of the taxable income from the Company (if any) will be reported on your personal income tax return. We will try to distribute enough money for you to pay your personal tax liability on your share of the income, but we might not have enough money to do so. In that case, you could have a net cash deficit from owning an LLC Interest.

 

NO REGISTRATION UNDER SECURITIES LAWS:

The Company and the LLC Interests will not be registered with the Securities and Exchange Commission (“SEC”) or the securities regulator of any State. Hence, neither the Company nor your LLC Interest is subject to the same degree of regulation, scrutiny and disclosure as if this offering were registered.

 

INCOMPLETE OFFERING INFORMATION:

The LLC Interests are being offered pursuant to Rule 506(b) issued by the SEC. Rule 506 does not require us to provide you with all the information that would be required in some other kinds of securities offerings, such as a public offering of shares. Although we have tried to provide all the information we believe is necessary for you to make an informed decision and we are ready to answer any questions you might have, it is possible that you would make a different decision if you had more information.

 

LACK OF ONGOING INFORMATION:

The Company will provide you with periodic statements concerning the Company, but it will not provide audited financial statements or other detailed information that you might receive in a securities offering registered with the SEC.

 

CONFLICTS OF INTEREST:

Your interests as an Investor could conflict with our interests in a number of important ways, including these:

  • Your interests might be better served if our management devoted its full attention to the Company. Instead, the principals of our Manager will be managing a number of different projects concurrently with the Company.
  • The principals of our Manager are also the principals of Sonder Homes, our property manager, which will receive fees from the Company. Although we will always seek to establish terms that are fair to the Company, the terms of any compensation or other agreements with Sonder Homes were negotiated between related parties, and therefore may not be as favorable to us as if they had been negotiated at arm’s length.
  • The principals of our Manager may be involved from time to time in other real estate ventures outside of the Company, and may be involved in purchasing and managing residential real estate projects in the vicinity of the Company. Therefore, they may be competing directly with the Company.
  • The lawyers who prepared this Confidential Investor Disclosure Document, the Operating Agreement, the Purchase and Investment Agreement, and the other documents related to your investment in the Company represent JB Holding Company LLC – our Manager – not Investors or even the Company. You must hire your own lawyer (at your own cost) if you want your interests to be separately represented.

 

DETERMINATION OF FEES:

The Manager and its affiliates may receive significant fees and distributions from the Company. Although we believe that the fees are consistent with the types and amounts of fees for other real estate development funds, the fees were not determined through arm’s-length negotiations with the Investors, but were established by our Manager.

 

LIMITATION ON RIGHTS UNDER OPERATING AGREEMENT:

The Operating Agreement limits your rights in several important respects, including these:

  • With a few exceptions, the Operating Agreement may be amended without your consent.
  • The Operating Agreement significantly curtails the right of Investors to bring legal claims against the Manager and its principals. Among other things, the Operating Agreement eliminates (to the extent allowed by law) the fiduciary obligations that the Manager would otherwise have to the Members.
  • The Operating Agreement limits your right to obtain information about the Company and to inspect its books and records.
  • The Operating Agreement restricts your right to sell or otherwise transfer your LLC Interest.

 

LIMITATIONS ON RIGHTS ON INVESTMENT AGREEMENT:

To purchase an LLC Interest, you are required to sign our Investment Agreement. The Investment Agreement would limit your rights in several important ways if you believe you have claims against us arising from the purchase of your LLC Interest:

  • In general, any legal claims brought against the Company or its principals must be brought in State or Federal Court in Indiana, which might not be convenient for you.
  • You would not be entitled to a jury trial on your claims.
THE FOREGOING ARE NOT NECESSARILY THE ONLY RISKS OF INVESTING.
PLEASE CONSULT WITH YOUR PROFESSIONAL ADVISORS.