N.Y. Comp. Codes R. & Regs. tit. 13 § 16.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 16.4 - Prefiling procedure (optional)

(a) Prior to formal filing of prospectus literature, etc., an offeror may submit proposed offering (including advertising) literature to the Condominium, Theatre and Syndication Financing Bureau and request a conference. Four copies of such literature and two copies of an unsigned form RS-1 should accompany such request. Offerors and their counsel who wish prefiling conferences should be prepared to submit a full appraisal of the specific property or properties involved in the offering by a competent independent appraiser and all contracts and documents pertaining to the offering at the time of the submission of the above copies (see subd. [c] below).

(b) Prior to formal filing of an application for an exemption on the basis of full registration with the Securities and Exchange Commission, an offeror may submit two copies of his preliminary ("Red Herring") prospectus, and full exhibit sheets and exhibits filed with that agency, as well as "letters of comment", as received therefrom, and request comments from the Condominium, Theatre and Syndication Financing Bureau as to the likelihood of the granting of any exemption upon formal application at a later date.

(c)Exhibits and underlying documents to be submitted with proposed prospectus and exemption application.

The issuer should submit all relevant documents and index thereto relating to the offering including the following, where applicable:

(1) appraisal of the property or properties involved in the offering by a competent independent real estate appraiser including appraisal of the physical condition of the property, breakdown of land and improvements for depreciation purposes, appraisal of value of the property and basis therefor. In addition, copies of all appraisals of the property ever obtained by the issuer or principal should be submitted;

(2) partnership agreements, certificates of incorporation and bylaws, trust indentures and any other pertinent documents relating to the form of business organization;

(3) contract of sale of property;

(4) leases, deeds and other evidence of interest or of title held by issuer or principal; title report;

(5) actual or proposed leases or subleases of all or a major portion of the property materially affecting the issue or issuer;

(6) all relevant agreements, including options, to which the issuer is or was intended to be a party, or a successor in interest, including agreements and options to be performed or which have been performed by the issuer or its principals, and any agreement or option in which the issuer or principals have a beneficial interest or which can in any way materially affect the issuer, principals or the issue (Unless requested, this shall not include agreements made in the ordinary course of business unless affecting a significant portion of the issuer's assets or business or unless they affect the acquisition of an interest in real property.);

(7) mortgages on property, and interests evidenced by a writing presently owned by the issuer or to be acquired by it; modifications and extensions of same;

(8) any other instruments relating to debt of the issuer incurred or intended to be incurred, whether short or long term;

(9) instruments relating to pledge of stock or other interest of principals or issuer;

(10) specimen of security to be issued;

(11) all documents relating to underwriting, distribution and sale of securities;

(12) an affidavit setting forth in detail the incurred or expected expenses of the offering including such items as the following: legal, accounting, printing, recording, taxes, title insurance, brokerage, and other commissions, appraisals, advertisements and filing fee;

(13) affidavit regarding prior syndications by principals including a statement as to whether such syndications have paid anticipated distributions and a statement as to whether such distributions were made from then current earnings.

N.Y. Comp. Codes R. & Regs. Tit. 13 § 16.4

Amended New York State Register July 3, 2018/Volume XL, Issue 27, eff. 7/3/2018