Current through Register Vol. 46, No. 39, September 25, 2024
(a)
General.
Documents to supplement or amend an offering
plan-collectively, amendment(s) -shall be deemed part of the
offering plan and shall meet the following requirements:
(1) If the offering plan does not comply with
section 19.1(c) of this
Part due to change of events, the passage of time or any other reason, the
offering plan must be amended promptly.
(2) An amendment must include a
representation that all material changes of facts or circumstances affecting
the property or the offering are included, unless the changes were described in
prior amendment(s) submitted to but not yet filed with the Department of
Law.
(3) Except as otherwise
provided, an amendment to an offering plan shall be filed on the date indicated
in the letter issued by the Department of Law stating that the amendment has
been filed, and not sooner.
(4)
Amendments that have been filed with the Department of Law must be attached to
the inside front cover of the offering plan before the amended plan is
distributed to the public. The cover of the offering plan must be stamped:
"This plan has been amended. See inside cover." Any revisions, additions or
deletions of specific language in the offering plan should reprint a sufficient
portion of the paragraph from the offering plan, as revised, so that the
revised portion of the offering plan may be understood easily. An offering plan
that has been amended extensively may be rewritten to incorporate the
amendments into the body of the plan.
(5) Amendments must be served on offerees in
accordance with section
19.1(g) of this
Part.
(b)
Procedure for submission of amendments.
Amendments must be mailed to or submitted during business
hours to the Real Estate Financing Bureau, Department of Law, 28 Liberty
Street, New York, NY 10005. Include the following when submitting an amendment
to the Department of Law:
(1) A
transmittal letter, signed by the attorney who prepared the amendment, that:
(i) states the date the offering plan was
filed;
(ii) identifies the subject
amendment(s) in numerical order;
(iii) states whether prior amendments had
been submitted to but not yet filed with the Department of Law; and
(iv) identifies, if possible, the attorney in
the Department of Law who reviewed the most recent submission.
(2) Three copies of the amendment
to the offering plan.
(3) Check
(certified or uncertified) for filing fees under G.B.L. section 352-e(7),
payable to New York State Department of Law, stapled or clipped to the
transmittal letter together with three copies of the form of receipt issued by
the Department of Law.
(4) Two
copies of the offering plan, including all filed amendments.
(5) One form CD-2.
If the amendment is submitted before the closing, or if the
amendment discloses the events that took place at the closing, the form must be
signed by the sponsor. If the amendment is submitted after the closing, the
form must be signed by one or more holders of unsold shares and must include
the sponsor or principals of sponsor if the sponsor or principals are holders
of unsold shares.
(c)
Extensions of offering
plans.
Pursuant to section
19.2(a)(2)(iv) of
this Part, the term of the initial offer is 12 months commencing on the date
indicated in the letter issued by the Department of Law stating that the plan
is filed. Prior to the closing of the first unit, an amendment other than a
price change amendment extends the term of the offering for an additional
six-month term, unless the term is shorter by the provisions of the amendment.
After the closing of the first unit, any subsequent amendment other than a
price change amendment extends the term of the offering for an additional
12-month term from the date of filing of the amendment. A price change
amendment submitted pursuant to subdivision (d) of this section does not extend
the term of the offering. In the absence of any amendments, an extension of the
term must be made by amendment before the end of the then current term and must
comply with the provisions of this section and the requirements set forth
below.
(1) The amendment must disclose
all material changes, such as decreases or increases in common
charges.
(2) If the closing has
occurred, the amendment must state:
(i) the
number of unsold units remaining; and
(ii) the extent to which the sponsor controls
the board of managers.
(d)
Price change amendments.
An amendment proposing to change any offering price is
subject to the requirements set forth below.
(1) Notwithstanding paragraph (a)(3) of this
section, if the amendment is limited solely to price changes and no prior
amendment has been submitted to but not yet filed with the Department of Law,
the amendment shall be deemed filed when submitted to the Department of
Law.
(2) If the amendment contains
price changes and supplements or amends any other part of the offering plan,
the amendment shall be filed on the date indicated in the letter issued by the
Department of Law stating that the amendment has been filed, and not
sooner.
(3) The transmittal letter
for a price change amendment must be accompanied by a completed copy of form
C-11 as promulgated by the Department of Law.
