Berkeley Regional Center list of EB-5 Protections and Guarantees
Please refer to any projects Offering Memorandums and thoroughly read the Risk Factors in their entirety before engaging in any investment decisions.
Below is a description of basic protections and guarantees that the Berkeley Regional Center targets when structuring it’s EB-5 investment offerings. Each project is different and has its own unique opportunities and risks. Qualified accredited investors who have been approved by the offerings General Partner should request the formal confidential offering documents including the Private Placement Memorandum for the exact definitions and terms of investment. In no way is this an offering to sell securities or investment and it is just completely informational. Below is a basic description of EB-5 protections and guarantees that the Berkeley Regional Center targets for its fund, see Offering Documents for details:
Berkeley Regional Center EB-5 Investment Protections:
I-526 Approval Guarantee
Document: Private Placement Memorandum, Limited Partnership Agreement
The I-526 Money Back Guarantee is a guarantee provided by either the EB-5 partnership sponsor, developer or both that typically reads that if the EB-5 investors I-526 petition is denied then the investors investment capital and fees will be returned to them within a specific time frame. Projects vary with the details of the guaranty but typically cover any project related denial whereas the EB-5 Regional Center simply failed to structure a project correctly where the investors proposed investment meets USCIS investment and job creation requirements. Some projects have carve-outs where the guarantee is not valid if the denial is a source of funds related failure or something that is beyond the scope of the Partnership’s sponsor. For a detailed explanation of the terms and scope of the I-526 Approval Guarantee, refer to the projects Private Placement Memorandum and Organizational Documents and read the Risk Factors in their entirety.
Please Note, the investments are an at-risk investment to the investors and any repayment is after The investor is no longer a participant in the EB-5 program and no longer seeking immigration benefits due to a denial. Investors have no redemption provisions individually as per USCIS EB-5 policy.
Construction Completion Guarantee
Document: Private Placement Memorandum, Construction Completion Guarantee
For construction related projects, the construction completion guaranty is a promise from the Guarantor that the project will be completed and not left unfinished for any reason. The construction completion guaranty is typically required by any senior lender as well so it is commonly found in most construction related projects. The construction completion guarantee should offer investors a certain level of safety knowing that regardless of the market conditions, they will essentially have a completed and functioning asset to rely on to return at least a portion if not all of their investment at the end of the EB-5 investment term.
Guaranteed Maximum Price (GMAX) Style Construction Contract
Document: Private Placement Memorandum, Construction Contract
The Guaranteed Maximum Price (GMAX) Style Construction Contract sets a maximum price for the scope of construction and any non-approved expenditures are the responsibility of the construction contractor. This contract lowers the risk that additional capital would be needed in order to complete the project. This guarantee is typically secured by the balance sheet of the Guarantor (whom in the case of construction would likely be the General Contractor).
Equity Pledge Agreement
Document: Private Placement Memorandum, Equity Pledge Agreement
An Equity Pledge Agreement is typically an exhibit to the Loan & Security Agreement that pledges the equity of the Guarantor (typically the project company) to the lender or investor. Typically, a lender having a 100% perfected interest in the ownership or equity of the borrower would mean that in the event of default the Lender would be able foreclose on the ownership interest and assume control of the project. The Lender could then choose whether to continue the project or liquidate the assets to recover as much capital as possible. If the membership pledge is made to a mezzanine lender or lender that is subordinate to a senior lender, an inter-creditor agreement between the senior lender and the Equity Pledge holder would describe the cure rights and available recourse in the event of default.
Corporate Repayment Guaranty
Document: Private Placement Memorandum, Corporate Repayment Guaranty
A Corporate Repayment Guaranty is a promissory note or financial guaranty that the Guarantor will pay back the investment to the lender and provide the security of their corporate balance sheet. The Corporate Repayment Guaranty is typically stronger than an Equity Pledge because it’s not only secured by the project company and the specific asset, but secured by the entire balance sheet and all the equity from all projects owned by the sponsor. Any EB-5 project that includes a Corporate Repayment Guaranty or Intercompany Repayment Guaranty does not constitute as a repayment guarantee to the individual investor. As per USCIS EB-5 policy, the investment is at-risk for the investor. Any protection or repayment provisions are executable at the Fund level and any investor has no ability to execute any repayment guaranty themselves.
Document: Private Placement Memorandum, PPM / Personal Guarantee
The Personal Guaranty is one of the strongest levels of guaranty available as it not only supersedes an equity pledge and the corporate repayment guaranty but ties the personal assets of an individual to the repayment guaranty. The limited liability protection from establishing a limited liability company or a limited partnership is waived and an individuals entire life savings is tied to the guaranty. Lenders will require personal guaranty’s when the project and the corporate entity behind it still may not provide sufficient asset protection to warrant the debt investment. The Personal Guaranty is structured from the Executive or Guarantor to the Fund and not to EB-5 investors themselves. Any EB-5 investor will have no ability to enforce a guarantee directly. The EB-5 investor is at risk of loss, as per USCIS requirement.
- Guarantees come in many forms, none of which remove the at-risk provision required by USCIS for EB-5 investment.