Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Applicability.
The offering statement or "offering plan" required by
section
352-e of
the General Business Law ("G.B.L.") for a cooperative that meets the
requirements set forth below is subject to this Part. Except as provided in
paragraph (4) of this subdivision, offerings subject to this Part are not
subject to any other Part.
(1) One or
more individuals reside in the building on the date the proposed offering plan
is submitted to the Department of Law.
(2) The cooperative is not organized as a
time-sharing arrangement.
(3) One
or more of the cooperative units to be offered are used for residential
purposes or for combined residential/home occupation purposes. A cooperative
offering for commercial use only is not subject to this Part.
(4) The conversion of an occupied building to
two or more condominium units and the conversion of one or more of the
condominium units to an apartment corporation ("condo-coop") is primarily
subject to this Part. In addition, the offering plan must comply with the
requirements of Part 19 of this Subchapter to the extent necessary to comply
with subdivision (b) of this section.
(b)
Standard of compliance.
An offering plan must, at a minimum:
(1) contain in detail the terms of the
transaction and be complete, current and accurate;
(2) afford potential investors, purchasers
and participants an adequate basis upon which to found their
judgment;
(3) not omit any material
fact;
(4) not contain any untrue
statement of a material fact;
(5)
not contain any fraud, deception, concealment, suppression, false pretense or
fictitious or pretended purchase or sale;
(6) not contain any promise or representation
as to the future which is beyond reasonable expectation or unwarranted by
existing circumstances; and
(7) not
contain any representation or statement which is false, where the sponsor or
the person who made such representation or statement:
(i) knew the truth;
(ii) with reasonable effort could have known
the truth;
(iii) made no reasonable
effort to ascertain the truth; or
(iv) did not have knowledge concerning the
representation or statement made.
(c)
Definitions.
(1) As used in this Part, the word
sponsor(s) means any person, partnership, joint venture,
corporation, company, trust, association or other entity who makes or takes
part in a public offering or sale, in or from the State of New York, of
securities consisting primarily of shares or participation interests or
investment in real estate, including cooperative interests in realty.
(i)
Sponsor shall not be
deemed to include a selling agent who has complied with section
359-e of
the General Business Law or an attorney or other expert retained by the sponsor
solely to render professional advice or opinions in connection with the
offering.
(ii) Whenever under this
Part references are made to the sponsor performing an act, it shall be deemed
compliance with this Part if the plan states that the apartment corporation
will perform the act, provided nothing herein shall be interpreted so as to
relieve the sponsor of any responsibility or to impose upon the apartment
corporation any financial burden it would not otherwise have if the sponsor was
named in the offering plan as the party performing the act. Plans which elect
to name the apartment corporation as performing the act when this Part
specifically names the sponsor, shall, in the introduction, state that the acts
of the apartment corporation are caused by the sponsor and shall incorporate
the proviso stated above.
(2) As used in this Part, the word
principal(s) means all individual sponsors, all general
partners of sponsors that are partnerships, all officers, directors and
shareholders of a corporate sponsor that are actively involved in the planning
or consummation of the offering, and all other individuals who both (i) own an
interest in or control sponsor, and (ii) actively participate in the planning
or consummation of the offering, regardless of the form of organization of
sponsor.
(3) As used in this Part,
the word subscription or subscription
agreement means any executed written agreement to purchase shares
allocated to a dwelling unit. As used in this Part, the word
subscriber means any person, partnership, joint venture,
corporation, company, trust, association or other entity who executes such a
subscription. As used in this Part, the phrase to subscribe
shall mean to execute any such subscription agreement.
(4) As used in this Part, the words
presentation date shall mean the date of completion of
service, as defined in subdivision (d) of this section, of a copy of the plan
or amendment filed with the Department of Law.
(5)
Consummation of the plan
means transfer of title to the apartment corporation and the issuance of shares
and a proprietary lease to at least one subscriber under the plan following a
declaration of effectiveness by the sponsor and acceptance of the amendment by
the Department of Law confirming or declaring the plan effective.
(6)
Filing means the
issuance of a letter from the Attorney General stating that an offering plan or
amendment has been accepted for filing.
(7)
Digital copy means a
copy that is identical in content to a paper copy except that it is recorded
electronically in read-only .pdf format or other electronic format that the
Department of Law determines to be acceptable. Digital copies of the plan shall
include all the supporting documents included in Part II of the plan. Digital
copies of the exhibits to the plan shall include all documents referenced in
section 18.2(c)(4) of
this Part, as applicable. Digital copies of the amendment shall include all
exhibits, back-up documents, and other supplemental documents annexed to the
amendment, as applicable. The Department of Law shall periodically issue a
Guidance Document as defined by State Administrative Procedure Act section
102(14), setting forth particular guidelines and procedures for the submission
of digital copies. Such Guidance Document will be available on the Department
of Law's website, as required by State Administrative Procedure Act section
202(e).
(d)
Service.
(1) Unless otherwise
provided by statute or regulation, any document required to be served by this
Part shall be served on:
(i) one residential
tenant per unit;
(ii) subscribers
or purchasers who have executed and delivered subscription agreements or
purchase agreements to the sponsor, apartment corporation or selling agent, and
are not in default;
(iii)
shareholders of the apartment corporation; and
(iv) any other person entitled to service
pursuant to local law or regulation (collectively "offerees"), in the following
manner:
(a) personal delivery; or
(b) mailing by regular mail or registered or
certified mail, with or without return receipt requested, addressed to the
offeree at the last known residence of such offeree or, if offeree has provided
written information of an alternative address for notices, addressed to the
offeree at the alternative address. If sponsor has no information of the last
known residence address, but has written information of the place of business
or employment of such offeree, the mailing shall be addressed to such last
business or employment address.
(2) Service by personal delivery shall be
deemed complete upon delivery. Service by mailing shall be presumed complete on
the fifth day after the date of mailing. An affidavit of service identifying
the offerees served, stating the manner of service and the date of service,
shall be a document required to be retained under section
18.3(ff) of this
Part. The date of completion of service shall be the latest date on which
service upon all offerees is deemed and/or presumed complete.
(e)
Notice to tenants and
affidavit of service.
(1) Within three
business days from the date the proposed offering plan is first submitted to
the Department of Law, the sponsor shall serve each offeree, as defined in
subdivision (d) of this section, with a copy of the proposed offering plan,
together with the following notice:
Date of Notice:
___________________________________________
We have submitted to the New York State Department of Law,
Real Estate Finance Bureau, a proposed offering plan, commonly known as a "red
herring", for the conversion of (insert address and name of building,
if any) to a cooperative. The final offering plan has not yet been
filed with the Department of Law. The law requires us to disclose all material
information concerning the building and the conversion process in this proposed
offering plan. A copy of the proposed offering plan is enclosed for you to
comment on and to retain. Additional copies of the proposed offering plan are
available for inspection and copying at a reasonable charge, at the office of
sponsor (or selling agent) located at (insert address of sponsor or
selling agent) and the Department of Law.
The Attorney General strongly urges you to read this
proposed offering plan carefully and to consult with an attorney to advise you
as to the meaning and consequences of this plan.
The law requires the Department of Law, within not less
than 120 days nor more than 180 days from the date of submission of the
proposed offering plan, to either file the offering plan or to indicate how the
offering plan is deficient. No apartments may be sold or offered for sale, no
subscription agreements may be executed, and no downpayments may be accepted
unless and until the Department of Law files the final offering plan. A copy of
the filed plan will then be served on each tenant. You may send written
comments on the proposed offering plan to the New York State Department of Law,
Real Estate Finance Bureau, 28 Liberty Street, New York, NY 10005. You may also
send your written comments to (insert name and address of sponsor or
selling agent.)
(2) If G.B.L. section 352-eee is applicable,
the notice shall also state that pursuant to G.B.L. section 352-eee (1)(i), a
copy of the notice will be sent to the clerk of the municipality where the
building or group of buildings is located.
(3) If G.B.L. section 352-eee or 352-eeee is
applicable, the notice shall also state:
Tenants or their representatives may physically inspect the
premises at any time subsequent to the submission of the plan to the Department
of Law, during normal business hours, upon written request made by them to the
sponsor or selling agent, provided tenants' representatives are registered
architects or professional engineers licensed to practice in the State of
NewYork. After a final offering plan is filed with the Department of Law,
copies of all postings required by section 352-eee or 352-eeee of the New York
General Business Law, which are described in the "Rights of Existing Tenants"
section on page __ of the plan, will be made available for inspection and
copying at the office of the Department of Law where the submission was made
and at the office of the sponsor or selling agent.
(4) An affidavit of service together, with a
copy of the notice, must be submitted to the Department of Law within three
business days following completion of service on all offerees.
(5) If the offering plan is submitted to the
Department of Law on or after September 1, 2016 subject to G.B.L. sections
352-e(2-a) or 352-eeee, and the sponsor executed a contract of sale for the
building or group of buildings or acquired the building or group of buildings
on or after September 1, 2016, the notice shall also state: If you are a senior
citizen or disabled tenant as defined by G.B.L. section 352-e(2-a)(a)(iii) and
352-eeee(1)(f) or G.B.L. section 352-e(2-a)(a)(iv) and 352-eeee(1)(g),
respectively, you have additional rights and protections, including the right
to elect to become a non-purchasing tenant within 60 days from the date you
receive the filed offering plan from the sponsor. Senior citizen and disabled
tenants are advised to read the section of the offering plan entitled "Rights
of Eligible Senior Citizens and Eligible Disabled Persons." If the offering
plan is submitted to the Department of Law on or after July 1, 2016 pursuant to
G.B.L. sections 352-e(2-a) or 352-eeee, and the sponsor executed a contract of
sale for the building or group of buildings or acquired the building or group
of buildings on or after July 1, 2016, the notice shall also include the
eligible senior citizen and eligible disabled person election forms promulgated
by the Department of Law, forms SH-1 and SH-2, respectively.
(6) If the offering plan is submitted to the
Department of Law on or after September 1, 2016 subject to G.B.L. section
352-eee, and the sponsor executed a contract of sale for the building or group
of buildings or acquired the building or group of buildings on or after
September 1, 2016, the notice shall also state: If you are a senior citizen or
disabled tenant as defined by G.B.L. section 352-eee(1)(f) or G.B.L. section
352-eee(1)(g), respectively, you have additional rights and protections,
including the right to elect to become a non-purchasing tenant. Senior citizen
and disabled tenants are advised to read the section of the offering plan
entitled "Rights of Eligible Senior Citizens and Eligible Disabled Persons." If
the offering plan is submitted to the Department of Law on or after July 1,
2016 subject to G.B.L. section 352-eee, and the sponsor executed a contract of
sale for the building or group of buildings or acquired the building or group
of buildings on or after September 1, 2016, the notice shall also include the
eligible senior citizen and eligible disabled person election forms promulgated
by the Department of Law, forms SH-5 and SH-2, respectively.
(f)
No excessive long-term
vacancies.
If G.B.L. section 352-eee or 352-eeee is applicable to the
offering, within three business days following completion of service on all
offerees, as defined in subdivision (d) of this section, of a proposed offering
plan, sponsor shall submit an affidavit stating:
(1) the number of dwelling units in the
building;
(2) the number of
dwelling units and the identification of the units that were not leased or
occupied by bona fide tenants for more than five months prior to the date that
the proposed plan was first submitted to the Department of Law;
(3) the percentage obtained by dividing the
number of units identified in paragraph (2) by the number of units identified
in paragraph (1);
(4) if the
percentage set forth in paragraph (3) exceeds 10 percent, the normal average
vacancy rate for the building or buildings for the two years prior to the
January preceding the date of first submission, and a statement that said
percentage set forth in paragraph (3) does not exceed twice the said normal
average vacancy rate;
(5) that,
based on the information provided in paragraphs (1)-(4) of this subdivision, an
excess number of long-term vacancies did not exist on the date that the
offering plan was first submitted to the Department of Law; and
(6) the following information with respect to
any tenant who is the sponsor, or the selling agent, or is related to the
sponsor, the selling agent or any principal of the sponsor or selling agent by
blood, marriage or adoption or as a business associate, an employee, a
shareholder or a limited partner:
(i) the
identity of the tenant;
(ii) the
number of the unit the tenant leases;
(iii) the nature of the relationships with
the sponsor or the selling agent, or any principal of the sponsor or the
selling agent;
(iv) the date of the
lease;
(v) the date the tenant took
occupancy of the unit; and
(vi)
whether or not the tenant has been counted as a bona fide tenant by the sponsor
for the purposes of this affidavit.
The Department of Law, in its discretion, may require such
further proof as it deems necessary to establish that there were no excessive
long-term vacancies.
(g)
Time of review.
After submission of the proposed offering plan for filing,
the Department of Law shall issue a letter to the sponsor or sponsor's attorney
stating that the plan is filed, or indicating deficiencies. The Department of
Law shall issue such a letter for an offering plan subject to this Part no
sooner than 120 days and no later than 180 days after the date of submission of
the proposed offering plan. The Department of Law may issue a deficiency letter
whenever it appears:
(1) that the
department cannot make any finding mandated by law, or
(2) that the proposed offering plan is
deficient in one or more respects. The Department of Law may, in its
discretion, deem an offering plan as not submitted if the proposed offering
plan and exhibits are incomplete and therefore do not meet the requirements of
section 18.2 of this Part, Procedure for
Submission.
(h)
Revisions.
Following submission of a proposed offering plan, revisions
must be made to reflect any material change of fact or circumstances pertaining
to the proposed offering, the offerors, the property involved, the condition of
the premises, or the costs of ownership and operation of the property, so that
the offering plan may continue to comply with subdivision (b) of this section.
Such revisions shall be submitted to the attorney assigned by the Department of
Law to review the proposed offering plan. The Department of Law may issue a
deficiency letter and/or require resubmission of a new offering plan if the
revisions reflect matters of fact or circumstances which were known or should
have been known to the sponsor at the time of original submission, or
substantially change the nature or terms of the offering, or if the plan as
revised comes within the grounds stated in subdivision (g) of this section.
After the offering plan is filed the plan must be amended periodically as
required by section
18.5 of this Part.
(i)
Statutory
compliance.
Unless expressly provided herein, nothing contained in this
Part shall be construed as limiting the requirements set forth in article 23-A
of the G.B.L.
(j)
Out-of-state cooperatives.
A sponsor of a cooperative located outside of New York, who
makes or takes part in a public offering or sale in or from the State of New
York of cooperative interests in realty interest must file an offering plan
with the Department of Law that provides the full and fair disclosure required
by law, including this Part. The Department of Law, in its discretion, may
allow the sponsor to comply with any requirement of this Part which would
require a departure from the offering plan approved by or filed with the state
where the cooperative is located by employing an addendum at the end of the
offering plan containing the information required.
(k)
Exemptions.
Upon written application of the sponsor or sponsor's
attorney, the Department of Law, in its discretion, may by ruling exempt a plan
from the application of any provision of this Part, where it is found that
enforcement of the provision is not necessary to effectuate the purposes of the
G.B.L. or to protect the public interest. The application shall:
(1) be annexed to and be submitted with the
attorney's transmittal letter;
(2)
set forth the provisions from which the exemption is sought and the grounds for
the exemption; and
(3) be signed by
sponsor or the sponsor's attorney.
The transmittal letter and certifications required by
section 18.4 of this Part shall be in the
form required by this Part, without modification, and shall be based on the
assumption that any exemption sought pursuant to this section has been granted.
In the event that the Department of Law denies the application for exemption,
the Department of Law shall issue a deficiency letter as provided in
subdivision (g) of this section. No additional fee is required for an exemption
application.
(l)
Exemption from G.B.L. section 359-e.
An apartment corporation whose shares are to be sold
pursuant to an offering plan filed with the Department of Law is deemed
exempted from the registration requirements of G.B.L. section 359-e, provided
that all offering activities are made exclusively by persons duly registered
under the filing requirements of such section. No application for exemption
need be filed by an apartment corporation exempted under this
subdivision.
(m)
Transition.
Notwithstanding any provisions to the contrary in this
Part, the following provisions apply to any proposed offering plan
which:
(1) was submitted to the
Department of Law after March 31, 1982 pursuant to Part 17 or proposed Part 18
of this Subchapter before June 25, 1982;
(2) had not been filed with the Department of
Law before the effective date of Part 18 (June 2, 1982); and
(3) meets the requirements of subdivision (a)
of this section.
(i) All such proposed
offering plans ("transitional plans") shall be revised to substantially comply
with this Part and shall be resubmitted to the Department of Law ("resubmitted
plan"). For purposes of this section, substantial compliance
shall mean that the proposed offering plan contains all information required to
be disclosed by this Part, either in the bound offering plan or in the
supplemental submission annexed to the plan. A transitional plan will be deemed
abandoned if it is not resubmitted within six months of the effective date of
this Part. Sponsor shall notify all offerees in writing within five days after
the plan is deemed abandoned.
(ii)
The Department of Law, in its discretion, may issue a letter to the sponsor or
sponsor's attorney stating that a transitional plan is filed if the resubmitted
offering plan complies with this Part and more than 120 days have elapsed from
the date the proposed offering plan was first submitted to the Department of
Law.
(iii) After resubmission, the
Department of Law shall issue a letter to the sponsor or sponsor's attorney
stating that the resubmitted plan is filed, or indicating deficiencies. The
Department of Law shall issue such a letter no later than 180 days after the
date of resubmission. The Department of Law may issue a deficiency letter
whenever it appears:
(a) that the department
cannot make any finding mandated by law, or
(b) that the resubmitted plan is deficient in
one or more respects.
(iv) The requirement in subdivision (e) of
this section that a copy of the proposed offering plan and a notice be served
on offerees does not apply to a resubmitted offering plan. If the resubmitted
plan contains any material change in the terms of the proposed offering plan as
first submitted to the Department of Law, the sponsor must serve a copy of the
resubmitted plan and the following notice on each offeree. The transmittal
letter required by section
18.2(c)(1) of
this Part must state whether and in what respects the resubmitted plan
materially changes the terms of the proposed offering plan first submitted to
the Department of Law. A resubmitted plan that does not materially change the
terms of the proposed offering plan first submitted to the Department of Law
must be made available to tenants at the office of sponsor or selling agent for
inspection and copying.
NOTICE
As you know, on __ (insert date) we
submitted to the New York State Department of Law a proposed offering plan for
the conversion of (insert address or name of building) to
cooperative ownership. This letter is to notify you of a recent change in law
that may affect the timetable of the conversion process.
The amended law requires the Department of Law, within not
less than 120 days nor more than 180 days from the date of submission of the
proposed offering plan, either to file the offering plan or to indicate how the
proposed offering plan is deficient. The Department of Law recently issued
regulations that interpret the amendment to the law for buildings currently
being converted.
As applied to (insert address or name of
building), the Department of Law may file the plan or indicate how it
is deficient after (insert date that is 120 days after the date the
proposed offering plan was first submitted to the Department of Law)
and must do so before (insert date that is 181 days after the date the
plan was revised and resubmitted pursuant to these
regulations).
We have materially changed the proposed offering plan that
you received in (insert month and year in which the plan was first
served on tenants). A copy of the revised plan is enclosed for you to
comment on and to retain. You will receive a copy of the filed plan if and when
the plan is filed with the Department of Law.
No apartments may be sold or offered for sale, no
subscription agreements may be executed, and no downpayments may be accepted
unless and until the Department of Law files the offering plan. A copy of the
filed plan will be served on each tenant.
You may send written comments on the proposed offering plan
to the New York State Department of Law, Real Estate Finance Bureau, 28 Liberty
Street, New York, NY 10005. You may also send your written comments to
(insert name and address of sponsor or selling
agent).
(v)
Subdivision (f) of this section, concerning excessive long-term vacancies, does
not apply to a transitional offering plan. However, if G.B.L. section 352-eee
or 352-eeee is applicable, sponsor shall include, at Exhibit B-18 of the
resubmitted plan and exhibits, proof satisfactory to the Department of Law that
there were no excessive long-term vacancies on the date the proposed offering
plan was first submitted to the Department of Law. Proof shall include, but is
not limited to, an affidavit from sponsor stating the information in
subdivision (f) of this section.
(vi) The Department of Law shall credit
filing fees previously paid under G.B.L. section 352-e(7)(a) to the resubmitted
plan if the plan is resubmitted within six months of the effective date of this
Part.
(vii) The transmittal letter
required by section
18.2(c)(1) of
this Part for a resubmitted plan must include the date the plan was first
submitted to the Department of Law, the file number and, if possible, a copy of
the receipt for the filing fee.
(viii) Section
18.3(j) of this
Part concerning certified operating statements for the building need not be
complied with on the date the offering plan is resubmitted to the Department of
Law. The certified operating statements required by section
18.3(j) of this
Part may be included in the resubmitted offering plan before it is filed with
the Department of Law or, if the plan so states, included in an amendment to
the resubmitted offering plan after it is filed but before the plan is declared
effective.
(n)
Effectiveness of
regulations.
(1) This Part, as in
effect on June 2, 1982, applies to offering plans that meet the requirements of
subdivision (a) of this section and were submitted on or after April 1, 1982
but before July 20, 1983.
(2) This
Part, as revised by revisions filed with the Secretary of State on May 24,
1983, applies to offering plans that meet the requirements of subdivision (a)
of this section and are submitted on or after July 20, 1983.
(3) Sections
18.3 and
18.5 of this Part, as revised on
May 24, 1983 (excluding sections
18.3[n][4],
18.5[e][6][iv]
and 18.5[e][7][iv] of
this Part, except to the extent that any of these are required by the terms of
the offering plan) shall apply to amendments submitted on or after July 20,
1983 for offering plans which meet the requirements of subdivision (a) of this
section regardless of when such plan was filed.
(4) Section
18.6 of this Part, as revised on
May 24, 1983, is effective immediately for advertisements for offering plans
that meet the requirements of subdivision (a) of this section regardless of
when such plan was filed.
(5)
Section 18.8 of this Part, as revised on
May 24, 1983, is effective immediately for all offering plans filed by the
Department of Law on or after July 21, 1982, and to all sales of units occupied
by eligible senior citizens, eligible handicapped persons or eligible disabled
persons or persons seeking exemptions as eligible senior citizens or eligible
handicapped persons or eligible disabled persons, on or after July 21,
1982.
(6) This Part, as revised by
revisions filed with the Secretary of State on March 5, 1984, applies to
offering plans that meet the requirements of section
18.1(a) and are
submitted on or after April 5, 1984.
(7) This Part, as revised by revisions filed
with the Secretary of State on March 5, 1984, is effective immediately for all
offering plans, regardless of when such plan was submitted, that:
(i) meet the requirements of section
18.1(a);
and
(ii) are or become subject to
G.B.L., section 352-e(2-a), prior to being declared effective.
(8) Sections
18.1(p) and
18.3(r) of this
Part, as revised on March 5, 1984, are effective immediately for all offering
plans, regardless of when such plan was submitted, that:
(i) meet the requirements of section
18.1(a);
(ii) are or become subject to G.B.L., section
352-eee, prior to being accepted for filing; and
(iii) were not accepted for filing prior to
June 30, 1983.
(o)
Abandonments, terminations and
withdrawals.
If the offering plan is withdrawn or terminated prior to
filing, or is abandoned after filing, the sponsor shall execute and file form
RS-3 promulgated by the Attorney General within five business days thereafter.
If subscription payments have been received, an accounting of the disposition
of all funds received shall be included in form RS-3. The sponsor shall
concurrently send written notice as to the withdrawal, termination, or
abandonment to all offerees as defined in these regulations.
(p)
Postings of subscription
percentages.
(1) If G.B.L., section
352-eee or 352-eeee, is applicable, on the 30th, 60th, 88th and 90th day after
the date of presentation of the offering plan and at least once every 30 days
until the plan is declared effective or is abandoned, and on the 10th and 2nd
day before the expiration of any exclusive purchase period provided in an
amendment to the plan, the sponsor shall post before noon, in a prominent place
accessible to all tenants in the building, a statement under oath listing the
percentage(s) of bona fide tenants in occupancy on the filing date who have
signed subscription agreements as of a specified time on the date of the
statement. Such statement shall remain posted until the next statement must be
posted. The percentage(s) shall be computed in the same manner as the sponsor
must compute the minimum percentage(s) needed to declare the plan effective.
The statement also shall be filed with the Department of Law. The Department of
Law may issue model forms, which are recommended for use by sponsors, for
posting statements. The statement shall include the following:
(i) The date and time of the
statement.
(ii) The date the plan
was filed with the Department of Law.
(iii) The date of presentation of the plan
(and the current amendment).
(iv)
The last day of any exclusive period(s).
(v) If an eviction plan, the last day for
eligible senior citizens or eligible disabled persons to elect not to purchase
pursuant to G.B.L., section 352-eeee, or the last day for eligible disabled
persons to elect not to purchase pursuant to G.B.L., section 352-eee.
(vi) If the plan is subject to G.B.L.,
section 352-eeee, state the number of bona fide tenants in occupancy on the
filing date who have signed subscription agreements as of a time specified in
the statement. If the plan is a noneviction plan subject to G.B.L., section
352-eeee, also state the number of bona fide nontenant subscribers who have
represented that they or member(s) of their immediate family intend to occupy
the apartment when it becomes vacant. If the plan is an eviction plan subject
to G.B.L., section 352-eee, state the number of bona fide tenants in occupancy
on the filing date who have signed subscription agreements. If the plan is a
noneviction plan subject to G.B.L., section 352-eee, state the number of bona
fide tenants in occupancy on the filing date and also state the number of bona
fide tenants who became tenants in occupancy after the filing date who have
signed subscription agreements. Any subscriber who is required to be listed
under section
18.5(e)(6)(v) of
this Part shall not be included in the count unless the sponsor has submitted
proof satisfactory to the Department of Law establishing that the subscriber is
a bona fide tenant, or in a noneviction plan subject to G.B.L., section
352-eeee, unless the sponsor has submitted proof satisfactory to the Department
of Law establishing that the subscriber is a bona fide purchaser who meets the
requirements of section
18.5(e) of this
Part.
(vii) The number of
subscribers required to be listed under section
18.5(e)(6)(v) of
this Part who may not be included in the count at the time of the posting, but
whom sponsor seeks to include in the future.
(viii) The number of units or tenants counted
in the base. If the plan is an eviction plan under G.B.L., section 352-eee or
352-eeee, also state the number of tenants or units subtracted from the base to
date, and the basis in law for each subtraction.
(ix) The percentage obtained by dividing the
number of subscribers to be counted towards effectiveness given in subparagraph
(vi) of this paragraph by the number of tenants or units counted in the base
given in subparagraph (viii) of this paragraph.
(x) If the plan is an eviction plan subject
to G.B.L., section 352-eee, also give the percentage obtained by dividing:
(a) the number of subscribers to be counted
towards effectiveness given in subparagraph (vi) of this paragraph by
(b) the number of tenants or units counted in
the base given in subparagraph (viii) of this paragraph, plus the eligible
senior citizens and eligible disabled persons who were bona fide tenants in
occupancy on the filing date and had been subtracted from the base in
subparagraph (viii).
(q)
Disclaimers.
The requirements set forth in section
18.3 of this Part apply to the
offering plan generally and shall not be negated or contradicted by
inconsistent provisions in other portions of the offering plan, or by
provisions purporting to discharge liability or to terminate the continuing
effect of representations in the offering plan upon an event such as the
closing or the delivery of shares with the proprietary lease. Disclaimer
provisions, either direct, or indirect through stated reliance on an expert
with respect to factual matters required to be represented or set forth in the
offering plan, may not be included except as and to the extent permitted in
this Part.
