FOURTEENTH AMENDMENT TO CONDOMINIUM OFFERING PLAN FOR 234 EAST 23 RD STREET CONDOMINIUM

Transcription

1 FOURTEENTH AMENDMENT TO CONDOMINIUM OFFERING PLAN FOR 234 EAST 23 RD STREET CONDOMINIUM This Fourteenth Amendment (this Amendment ) modifies and supplements the terms of the Condominium Offering Plan for the premises known as 234 East 23 rd Street Condominium (Department of Law File No. CD ), East 23 rd Street, New York, New York 10010, first accepted for filing on June 10, 2014 (as amended, the Plan ) and is incorporated into and should be read in conjunction with the Plan. The terms of this Amendment are as follows: 1. Purpose of Amendment The purpose of this amendment is to disclose certain information regarding the first closing of title to a Unit by E. 23 RD Property Owner, L.L.C. ( Sponsor ) and to update certain information and other disclosures in the offering under the Plan. 2. Declaration of Condominium and By-Laws Recorded The Declaration dated as of January 12, 2016 establishing 234 East 23 rd Street Condominium, with the By-Laws attached as Schedule C thereto, was recorded in the Office of the City Register, New York County on April 7, 2016, as CRFN Certificate of Occupancy As of the date of filing of this Amendment, a Temporary Certificate of Occupancy (a TCO ) has been obtained for all floors of the Building, including for all fifty-five (55) Residential Units and the Retail Unit. A copy of the most recent TCO, which is effective June 1, 2016 and has an expiration date of August 30, 2016, is annexed hereto as Exhibit A. Based on the current construction schedule and subject to delays caused by events beyond Sponsor s reasonable control, Goldstein, Hill & West Architects, LLP, Sponsor s architect of record, estimated the cost of the work to obtain a Permanent Certificate of Occupancy ( the PCO ) for the entire Building to be $140,000.00, as of April 14, Accordingly and in accordance with the terms of the Plan, Sponsor has posted security with Kramer Levin Naftalis & Frankel LLP as escrow agent (the Escrow Agent ) in the form of a cash deposit of $140,000.00, which amount is on deposit with Santander Bank, N.A., 1290 Avenue of the Americas, New York, New York 10019, pursuant to an escrow agreement (the PCO Escrow Agreement ). Annexed hereto as Exhibit B-1 is the executed PCO Escrow Agreement between Sponsor and Escrow Agent. Annexed hereto as Exhibit B-2 is the executed certification by Goldstein, Hill & West Architects, LLP with respect to the funds it has determined to be reasonably required in connection with the issuance of a PCO as more fully set forth above. Such estimate is subject to KL

2 revision from time to time as work progresses at the Building. Without representation, Sponsor anticipates that the PCO for the Building will be issued on or about December of First Closing Held; Working Capital Fund; Unsold Units (a) The first title closing of a Unit (Unit 9B) occurred on April 22, 2016 in New York, New York. (b) Pursuant to the Plan, except as provided for in Schedule B, the budget for the projected First Year of Operation of the Condominium, no Reserve Fund has been established by Sponsor for the Condominium. (c) A Working Capital Fund has been established and has been funded, in accordance with the terms of the Plan, by contributions at the closing of title to each Unit in an amount equal to two months Common Charges in effect for such Unit(s) pursuant to the current budget for the Condominium. As described in the Plan, Sponsor is not separately contributing to the Working Capital Fund. The Working Capital Fund is on deposit at Capital One Bank N.A., 90 Park Avenue, 6 th Floor, New York, New York The balance in said account as of June 28, 2016 was $78, (d) Annexed hereto as Exhibit C is a list of Unsold Residential Units held by Sponsor as of June 28, For purposes of this Amendment and in accordance with New York State Department of Law regulations, the Unsold Residential Units listed on Exhibit C are those Residential Units for which a closing has not yet occurred. As of June 28, 2016, all of the three (3) Residential Units listed on Exhibit C are subject to fully executed Purchase Agreements. There are no Unsold Residential Units that are not subject to fully executed Purchase Agreements. 5. First Annual Meeting of Unit Owners; Board Members In accordance with the By-Laws, the First Annual Meeting of Unit Owners ( First Annual Meeting ) shall be held not later than thirty (30) days following the earlier to occur of: (a) the second anniversary of the First Closing; or (b) the closing of title by Sponsor (or its designee), as seller, to Units representing more than fifty percent (50%) in aggregate Common Interests of all Units to Purchasers. As of June 23, 2016, the First Annual Meeting has not yet occurred. The persons designated by Sponsor to serve as the Initial Board members until the First Annual Meeting are: Matt Van Damm (President), Eva Malachi (Vice President), and Yoseph Manor (Secretary/Treasurer). All such persons are affiliated with Sponsor, and have an address c/o The Naftali Group, 1700 Broadway, 16 th Floor, New York, New York Definitions Except as herein defined, all capitalized terms used in this Amendment which are defined in the Plan shall have the respective meanings ascribed to such terms in the Plan. KL

3 7. Incorporation of the Plan The Plan, as modified and supplemented by this Amendment, is incorporated herein by reference with the same force and effect as if set forth at length. 8. No Material Changes in the Plan There have been no material changes in the Plan except as set forth in this Amendment. The Plan, as hereby amended, does not knowingly omit any material fact. 9. Extension of Filing Period The effective period for the term of the Plan is extended for a period of six (6) months from the filing of this Amendment. Dated:, 2016 SPONSOR: E. 23 RD PROPERTY OWNER, L.L.C. KL

4 EXHIBIT A Temporary Certificate of Occupancy KL

5 Certificate of Occupancy CO Number: Page 1 of T004 This certifies that the premises described herein conforms substantially to the approved plans and specifications and to the requirements of all applicable laws, rules and regulations for the uses and occupancies specified. No change of use or occupancy shall be made unless a new Certificate of Occupancy is issued. This document or a copy shall be available for inspection at the building at all reasonable times. A. Borough: Manhattan Block Number: Certificate Type: Temporary Address: 234 EAST 23 STREET Lot Number(s): 41 Effective Date: 06/01/2016 Building Identification Number (BIN): Expiration Date: 08/30/2016 Building Type: New This building is subject to this Building Code: 2008 Code For zoning lot metes & bounds, please see BISWeb. B. Construction classification: 1-B (2008 Code) Building Occupancy Group classification: R-2 (2008 Code) Multiple Dwelling Law Classification: HAEA C. D. E. No. of stories: 20 Height in feet: 210 No. of dwelling units: Fire Protection Equipment: Standpipe system, Fire alarm system, Sprinkler system Type and number of open spaces: None associated with this filing. This Certificate is issued with the following legal limitations: Other Restriction: CONTROL# Outstanding requirements for obtaining Final Certificate of Occupancy: There are 24 outstanding requirements. Please refer to BISWeb for further detail. Borough Comments: None Borough Commissioner DOCUMENT CONTINUES ON NEXT PAGE Commissioner

6 Certificate of Occupancy CO Number: Page 2 of T004 Floor From To Permissible Use and Occupancy All Building Code occupancy group designations below are 2008 designations. Maximum persons permitted Live load lbs per sq. ft. Building Code occupancy group Dwelling or Rooming Units Zoning use group CEL 20 R-2 2 GYM Description of use CEL 66 R-2 2 LOUNGE CEL 100 F-2 2 BIKE STORAGE, WATER, ELECTRICAL, GAS METER, FIRE PUMP, TELECOM, ATS,OFFICE,LAUNDRY, COMPACTOR ROOM, LOCKER ROOM, STAFF ROOM, STORAGE ROOM, REST ROOM AND REST ROOM B 6 RETAIL SPACE R-2 2, 2 RESIDENTIAL LOBBY, MAIL ROOM, PACKAGE B ROOM R FOUR (4) APARTMENTS, ACCESSORY OUTDOOR TERRACE (20 STATED OCCUPANCY) R FOUR (4) APARTMENTS PER FLOOR R THREE (3) APARTMENTS PER FLOOR R THREE (3) APARTMENTS PER FLOOR R TWO (2) APARTMENTS AND LOWER DUPLEX R (0.5) UPPER DUPLEX R TWO (2) APARTMENTS PER FLOOR Borough Commissioner DOCUMENT CONTINUES ON NEXT PAGE Commissioner

7 Certificate of Occupancy CO Number: Page 3 of T004 Floor From To Permissible Use and Occupancy All Building Code occupancy group designations below are 2008 designations. Maximum persons permitted Live load lbs per sq. ft. Building Code occupancy group Dwelling or Rooming Units Zoning use group Description of use R TWO (2) APARTMENTS PER FLOOR R-2 1 ONE (1) APARTMENT RO F RO F R-2 2 ELECTRICAL ROOM, MECHANICAL/ELECTRIAL ROOM, PUBLIC TERRACE, PRIVATE TERRACE, BOILER ROOM, MECHANICAL ROOM, COOLING TOWER, MECHANICAL, ELEVATOR MACHINEROOM, AND MECHANICAL ROOF R-2 2 MECHANICAL ROOM, COOLING TOWER FILING TO LIST GYM ON SEPERATE LINE IN CELLAR FILING TO LIST LOUNGE ON SEPERATE LINE IN CELLAR END OF SECTION Borough Commissioner END OF DOCUMENT Commissioner /004 6/2/2016 1:20:09 PM

8 EXHIBIT B-1 PCO Escrow Agreement KL

9 ESCROW AGREEMENT WITH RESPECT TO COST TO COMPLETE CONSTRUCTION OF THE 234 EAST 23 rd CONDOMINIUM THIS ESCROW AGREEMENT, made as of the day of April, 2016 by and between E. 23 rd Property Owner, L.L.C. ("Sponsor") and KRAMER LEVIN NAFTALIS & FRANKEL LLP ("Escrow Agent", which term shall be deemed to include any successor to Escrow Agent named herein as designated pursuant to Paragraph 6 hereof). WITNESSETH: WHEREAS: A. Pursuant to a certain Condominium Offering Plan for 234 East 23rd Condominium (the "Condominium"), dated June 10, 2014 (as amended from time to time, the "Plan"), Sponsor proposes to sell Condominium Units ("Units") in the Condominium; B. The Plan provides that if a permanent Certificate of Occupancy has not been issued for the Condominium Building as of the first closing of title to a Unit, Sponsor will place in escrow with its counsel a sum equal to the cost of the work remaining to be done by Sponsor in order to obtain such permanent Certificate of Occupancy (the "Completion Work"), as certified by a registered architect, certified engineer, or construction manager selected by Sponsor (any one or more of the foregoing, individually or together, "Sponsor's Professional"); C. Sponsor's Professional, Goldstein Hill & West Architects, LLP, has certified in a letter dated April 14, 2016 that the cost of the Completion Work is $140,000 in the aggregate as of such date; and D. Escrow Agent is Sponsor's counsel and is willing to hold and disburse such amount in accordance with the Plan and the provisions hereof. NOW, THEREFORE, intending to be legally bound, the parties hereto hereby agree as follows: 1. Sponsor hereby appoints Escrow Agent as the escrow agent hereunder, upon and subject to the terms and conditions hereinafter set forth, and Escrow Agent hereby accepts such appointment and agrees to comply with the provisions hereof. 2. Sponsor hereby deposits with Escrow Agent, and Escrow Agent hereby acknowledges receipt of, the amount of $140,000 (the "Deposit", subject to reduction as hereinafter provided). 3. (a) The Deposit shall be subject to reduction and disbursement to Sponsor from time to time as the Completion Work progresses, but not more often than once in any month, upon receipt of a certificate issued by Sponsor's Professional stating

10 that after the Deposit is reduced by the amount stated, the balance remaining would be sufficient to complete the Completion Work. (b) Escrow Agent has established an escrow account at Santander Bank, N.A., 1290 Avenue of the Americas, New York, New York ("Bank"), a bank authorized to do business in the State of New York. Escrow Agent has designated the following attorney to serve as signatories: Jay A. Neveloff, Jonathan H. Canter, Neil R. Tucker, James P. Godman and Tzvi Rokeach. (c) In lieu of the Deposit, Sponsor may at any time deposit with Escrow Agent a surety bond (a "Bond") for the benefit of Escrow Agent in the amount of the then Deposit being held by Escrow Agent. In such case, the Bond shall be subject to reduction from time to time as the Completion Work progresses, but not more often than once in any month, upon receipt of a certificate issued by Sponsor's Professional stating that after the Bond is reduced by the amount stated, the balance remaining would be sufficient to complete the Completion Work. In lieu thereof, Sponsor may from time to time thereafter, but not more often than once in any month, deposit with Escrow Agent another bond in a lesser amount, or cash or a letter of credit in such lesser amount, and upon receipt thereof and of a certificate issued by Sponsor's Professional stating that such lesser amount is sufficient to complete the Completion Work, and Escrow Agent shall then release to Sponsor the bond then being held by Escrow Agent. (d) In all events, Escrow Agent may rely, and shall not incur any liability in acting or refraining from acting, upon any of the aforementioned certificates and shall have no obligation to make any independent inquiry or evaluation with respect to the facts set forth in any such certificates. 4. The term of this Agreement shall commence as of the date hereof and shall expire upon the date on which Sponsor receives a permanent Certificate of Occupancy for the Building. 5. (a) If Sponsor shall receive a permanent Certificate of Occupancy for the Building and shall deliver a copy thereof, certified to be true, correct and in full force and effect, to Escrow Agent, Escrow Agent shall release the Deposit then being held in escrow to Sponsor. (b) Upon Escrow Agent's compliance with the provisions of subparagraph (a), none of the parties shall have any obligations hereunder thereafter accruing. 6. In consideration of the acceptance by Escrow Agent of its duties hereunder, and notwithstanding anything herein or otherwise to the contrary, it is expressly understood and agreed by all parties hereto that: (a) Escrow Agent is acting hereunder only as an accommodation to Sponsor. The parties hereto acknowledge and agree that the duties of -2-

11 Escrow Agent are those expressly set forth in this Agreement and are purely ministerial in nature. (b) Escrow Agent may rely, and shall not incur any liability in acting or refraining from acting, upon any signature, notice, request, waiver, consent, receipt or other paper or document which may be submitted to it in connection with its duties hereunder and which is believed by Escrow Agent to be genuine and to have been signed or presented by the proper party or parties, and Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so. Escrow Agent shall have no liability or responsibility with respect to the form, execution or validity of any of the foregoing. Nothing contained in this Agreement shall prevent Escrow Agent from complying with (i) any federal, state or local law, (ii) any order of a court of competent jurisdiction or (iii) the terms of any stay imposed in a bankruptcy or insolvency proceeding or otherwise. (c) Escrow Agent shall be entitled to consult with and retain counsel selected by it (including any member of its firm) with respect to its duties as Escrow Agent and be reimbursed by Sponsor for all reasonable fees and expenses of such consultation and retention. Escrow Agent may act or refrain from acting in respect of any matter referred to herein by and with, and in full relation upon, the advice of such counsel and, except in the case of its own willful default or gross negligence, Escrow Agent shall be fully protected in so acting or refraining from acting upon the advice of such counsel. (d) Escrow Agent shall not be responsible for any act or failure to act on its part except for its own willful default or gross negligence. Escrow Agent shall be automatically released from all responsibility and liability under this Escrow Agreement upon Escrow Agent's distribution of the Deposit (or any bond, surety bond or letter of credit in lieu thereof) (any of the foregoing, the "escrow") in accordance with the provisions of this Escrow Agreement. (e) Escrow Agent is acting only as a stakeholder with respect to the escrow. In the event that Escrow Agent, in good faith, is in doubt as to the procedure to be followed, or a dispute shall arise as to the disposition of the escrow, Escrow Agent shall have the right to either (i) bring any appropriate action or proceeding for interpleader or leave to deposit the escrow, with a court of competent jurisdiction, pending the decision of such court, and Escrow Agent shall be entitled to rely upon the decision of any court with respect to the disposition thereof, or (ii) hold the same pending receipt of joint instructions, in writing, from Sponsor, and Escrow Agent shall be entitled to rely upon such instructions with respect to the disposition of the escrow. (f) Escrow Agent may resign at any time upon at least ten (10) days' prior written notice to Sponsor, provided that prior to the effective date of such resignation, Sponsor shall have approved, in writing, a successor Escrow Agent, which approval shall not be unreasonably withheld or delayed. Upon the resignation of Escrow -3 -

12 Agent, Escrow Agent shall deliver the escrow to such successor Escrow Agent. From and after such resignation and the delivery of the escrow to such successor Escrow Agent, Escrow Agent originally named herein shall be fully relieved of all of its duties, responsibilities and obligations under this Escrow Agreement, all of which duties, responsibilities and obligations shall be performed by the appointed successor Escrow Agent. If for any reason Sponsor shall not approve a successor Escrow Agent within such ten (10) day period, Escrow Agent may bring any appropriate action or proceeding for leave to deposit the escrow with a court of competent jurisdiction, pending the approval of a successor Escrow Agent, and upon such deposit Escrow Agent shall be fully relieved of all of its duties, responsibilities and obligations under this Escrow Agreement. (g) Sponsor hereby indemnifies and holds Escrow Agent harmless from any and all losses, damages, claims, liabilities, judgments and other costs and expenses of every kind and nature which may be claimed against or incurred by Escrow Agent by reason of its acceptance of, and/or its performance under, this Escrow Agreement (other than those ultimately determined to have arisen out of the willful misconduct or gross negligence of Escrow Agent), including, without limitation, attorneys' fees either paid to retained attorneys or amounts representing the fair value of legal services rendered to itself. The foregoing indemnification shall survive the termination or expiration of this Escrow Agreement. (h) Escrow Agent or any member of its firm may act as counsel to Sponsor in any dispute or question as to the disposition of the escrow or in any dispute between the parties hereto with respect to any matter whatsoever, whether or not Escrow Agent is then in possession of the escrow and is continuing to act as Escrow Agent hereunder. (i) Escrow Agent shall not incur any liability if for any reason any bank or other investment institution or vehicle into which Escrow Agent has deposited the escrow pursuant to this Agreement, shall become insolvent. (j) Upon the expiration or sooner termination of this Agreement or the resignation of Escrow Agent, Sponsor shall, upon request of Escrow Agent, execute and deliver to Escrow Agent general releases. 7. Any notice, request or demand hereunder shall be in writing. Any notice to Escrow Agent shall be deemed effective only upon receipt thereof by Escrow Agent. Any notice to Sponsor hereunder shall be deemed to have been given as of the date (a) when hand delivered, (b) which is one (1) day after being sent by an overnight courier service or (c) three (3) days after being sent by an overnight courier service or (3) days after being sent by certified or registered mail, return receipt requested, postage prepaid, addressed, if to Sponsor: _4_

13 E. 23 rd Property Owner, L.L.C. e/o The Naftali Group 1700 Broadway, 16 th Floor New York, New York and if to Escrow Agent: Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York Attention: Jonathan H. Canter, Esq. or at such other or additional addresses as such party shall have duly notified the other parties hereto. If any day on which any notice, demand, instruction or other communication is given or sent by any party hereto is not a business day, such notice, demand, instruction or other communication shall be deemed to have been given or sent on the business day next succeeding such non-business day. 8. This Agreement shall be binding upon and inure to the benefit of each party and its successors and assigns. This Agreement may be changed, waived, discharged or terminated only by an instrument in writing signed by all of the parties hereto. This Agreement shall be construed and enforced in accordance with and governed by the internal laws of the State of New York, without regard to principles of conflicts of laws. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all of the parties hereto. Any terms used herein and not otherwise defined shall have the meanings set forth therefor in the Plan. 9. Notwithstanding anything contained herein to the contrary, Escrow Agent shall have no obligation to disburse all or any portion of the Deposit if such disbursement would be inconsistent with the New York State Department of Law's regulations or policy memoranda, including, without limitation, the memorandum entitled "Certificates of Occupancy and Part 20 Offering Plans" dated October 13, 2015, as may be amended, modified or supplemented from time to time. -5 -

14 IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be duly executed as of the day and year first above written E. 23 rd PROPERTY, L.L.C. Name Joseph Manor Title: Authorized Signatory KRAMER/LEVIN NAFTALIS & FRANKEL LLP KL By:_ Name: Jonathan H. Canter Title: Partner -6-

15 EXHIBIT B-2 Architect s Certification Regarding Estimate of Funds Needed to Obtain PCO KL

16 Geldstain, Hilt & West Arehitacts. IIP Exhibit A Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY April 14,2016 Re: Certification Regarding Sponsor's Work and Costs to Obtain a Permanent Certificate of Occupancy for [Condominium] ("Condominium") Offering Plan Filing No.: CD ' Dear sirs: The undersigned is the [registered architect/professional engineer of record or other qualified professional] with respect to the development of the Condominium. [Sponsor] ("Sponsor") has retained the undersigned to supply this certification regarding the remaining work and costs necessary for Sponsor to obtain a permanent certificate of occupancy ("PCO") from [the Department of Buildings of the City of New York/[Name of relevant local authority] for the Condominium. The undersigned hereby represents and warrants that it is a limited liability partnership of registered architects duly licensed in the State of New York. This certification is being made specifically to be relied upon by (i) Kramer Levin Naftalis & Frankel LLP, as escrow agent, ("Escrow Agent"), and (ii) Sponsor. FOUNDATION FOR CERTIFICATION In rendering this certification, the undersigned represents that [he/she/it] has an adequate basis to form the opinions herein, and has considered the following: 1. the current state of construction of the Condominium, including all major building systems and components; 2. all documents related to the costs of outstanding construction work or sign-offs necessary to complete construction of the Condominium, including without limitation, [the New York City Department of Buildings' "B-Scan List of Required Items'Vrelevant documents available from local authorities]; 3. all documents related to all soft costs necessary to procure the PCO for the Condominium;

17 GcHsliaisi, Hill & Wsst Arehiltsets, LLP 4. all documents setting forth an estimated date for the procurement of the PCO for the Condominium; 5. all other reasonable and customary costs and fees likely to be incurred by Sponsor, including without limitation, all expediters' fees and [Department of Buildings/local authority] fees, to procure a PCO from [the Department of Buildings/relevant local authority] covering the entire Condominium; and 6. all other documents or instruments the undersigned deems necessary or appropriate for rendering this certification. PROFESSIONAL OPINION Based on the undersigned's examination, inspection and consideration of the foregoing, it is the undersigned's professional opinion that $140,000 is the reasonable cost of the work to obtain a PCO for the residential portion of a mixed-use Condominium. This professional opinion is limited to the matters stated herein. It is not intended as a guarantee or warranty of the physical condition of the Condominium or that construction and ministerial acts will be carried out. CERTIFICATION In addition to the foregoing, the undersigned certifies that: (i) (ii) (iii) (iv) this letter affords Escrow Agent an adequate basis upon which to release that portion of purchasers' deposits and funds which are in excess of the amount set forth above, to Sponsor prior to the procurement of the PCO for the Condominium; the amount set forth above is an amount which represents all reasonable costs and work necessary for Sponsor to procure a PCO for the entire Condominium; the undersigned is not owned or controlled by and has no beneficial interest in Sponsor; and the undersigned's compensation for preparing this letter is not contingent on the conversion of the property to a condominium or on the profitability or price of the offering.

18 Goldstar?, IIill Ik W^tl At^hsfiscis,. HUP Yours faithfully, Goldstein, Hill and West Architects, L.L.P., a New York limited liability partnership By: QPL Alaq/Goldstein,\R.A. Partner V._ 3 Acknowledged and accepted: [SPONSOR] By:..,, Name: Title:

19 EXHIBIT C List of Unsold Residential Units 7C 16 PH-21 KL