OZ MAGAZINE 2022 Top 25 Influencers issue 2.2 - Page 13

13 many different projects a QOF can invest in that are located in Opportunity Zones . The negative of this structure is the liquidation process since there is a 10-year holding period from the day that the last investor invests in the QOF .
Another structuring methodology involves the fact that many sophisticated investors have already formed their own QOF and desire to invest in a QOZB . In that manner , it is common for multiple QOFs to be accommodated to invest in a QOZB . Typically , the sponsor will form its own QOF for those investors that have not established their own QOF entities in order to accommodate same . The structuring would then involve a promote and fees charged at the QOZB level so that the distributions to the QOF would be net of the promote interest . Attached is a proposed structure chart outlining this complicated structure that can be utilized to accommodate investors who have established their own QOF .
What is more common is for the QOF sponsor to establish a qualified opportunity zone business ( QOZB ), and the QOF will then invest in the QOZB .
the applicable business plan . This enables the QOZB to acquire the property and use cash over an extended period of time to fund the development of the project , since cash retained by the QOZB will be extended . There is a 31-month investment period subject to extension for an additional 31 months if there are reasons for delay in permitting or zoning approvals that were not contemplated in the original QOZB plan . It is of course critical in any situation that an appropriate business plan be established by the QOZB in order to justify the retention of cash for development . It is noteworthy that there is no definition in the OZ regulations as to what is an appropriate business plan but industry standards believe that a typical business plan used for financing purposes should be sufficient .
The next option is establishing a QOF that could invest in multiple QOZB transactions . There is no limitation on how
From a securities law standpoint it is important that there be proper disclosures provided to investors . This can be accomplished by utilizing a private placement memorandum ( the PPM ) which would have the normal disclosures that would otherwise be contained in a private equity offering for a normal real estate or business transaction . Otherwise , if there is a small number of investors , one can use a subscription package that provides much of the same information as the PPM with numerous exhibits listing all of the components necessary to be included in the offering documents . In either case , the disclosures are similar in nature . To the extent that the transaction is accommodating the investment by existing QOFs , the subscription documents need to be prepared to enable an investor either to invest directly into the QOF or to invest in a QOZB .
( a .) To the extent that a property was acquired pre- 2018 , then a ground lease model may be appropriate whereby the property is leased to an affiliated entity but the requirements in the Final OZ Regulations must be complied with in connection with the Lease provisions in the structuring process to meet the safe harbor provisions related thereto .
( b .) To the extent that a property is acquired after 2017 , if there is an existing structure contained thereon , the project may have to meet the “ substantial improvement test ” to the extent that the property has been in active use ( such as apartment rental project ). However , if the use is being changed or the property has been vacant for more than 3 years , substantial improvement test should not apply . There is a complicated structure issue as to whether the existing property can be expanded and whether the expansion itself would be included in the substantial improvement test and whether properties could be aggregated in connection therewith .
( c .) With respect to the actual economics , the following sponsor promote and fees need to be addressed in the