Private real estate investment funds, commonly called opportunity funds, continue to be a popular vehicle for pension funds investing in real estate. To invest in the opportunity fund, each investor executes a subscription agreement. Subscription agreements include general provisions applicable to all investors, as well as various questions, representations and warranties that are specific to specified categories of investor. In prior columns, we have discussed issues in the partnership and limited liability company agreements that are common vehicles for opportunity funds. This article focuses on the particular issues to consider in negotiating subscription agreements.

General Structure: The same form of subscription agreement is used for all investor types in a particular opportunity fund. Pursuant to the subscription agreement, all investors bind themselves to certain general provisions and statements, make specific representations and warranties, and answ