N.Y. Comp. Codes R. & Regs. tit. 9 § 5301.10

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

Section 5301.10 - Required notifications

(a)Material changes to commitments and development plans. The applicant or licensee shall notify the commission in writing and in a timely manner of any proposed material changes to commitments and development plans that were presented in such applicant's or licensee's gaming facility application, including, without limitation, in regard to finance and capital structure; land, construction and design of physical plant; workforce development; and sustainability and resource management. The duty to disclose changes in information shall continue throughout any period of licensure granted by the commission. Commission licensees or applicants for gaming facility licenses must maintain current release of information forms as originally submitted to the Gaming Facility Location Board. No material changes to such commitments and development plans are permitted without the approval of the commission in writing.

(b)Material debt transactions. No gaming facility applicant or licensee shall consummate a material debt transaction without the prior approval of the commission.

(1) Notwithstanding the foregoing in this subdivision, the following types of transactions shall not require prior commission review and approval with regard to the financial stability standards. An agreement that:

(i) provides for any borrowing for capital and maintenance expenditures;

(ii) is for a refinancing of existing debt that includes a borrowing for capital and maintenance expenditures of at least $50 million;

(iii) provides for any borrowing that does not result in an increase in annual debt service requirements; or

(iv) that reflects a gaming facility applicant or licensee's pro rata share of debt maintained at an affiliate, intermediary, or holding company.

(2) In the event that a gaming facility applicant or licensee contemplates consummation of a material debt transaction that does not require prior commission review and approval pursuant to paragraph (1) of this subdivision the gaming facility applicant or licensee nevertheless shall notify the commission in writing, at least 10 days prior to entering an arrangement, of a transaction subject to one of the above exceptions. The notice shall, at a minimum, include the reasons the debt transaction is an allowable exception and all relevant calculations relating to the debt transaction.

(3) In reviewing any transaction pursuant to paragraphs (1) and (2) of this subdivision, the commission shall consider whether the transaction would deprive the gaming facility applicant or licensee of financial stability, taking into account the financial condition of any affiliates of holding companies thereof, and the potential impact of any default on the licensee.

(4) Any subsequent use of the proceeds of a transaction previously approved by the commission pursuant to paragraphs (1) and (2) of this subdivision, including subsequent drawings under previously approved borrowings, shall not require further commission approval.

(5) The commission may restrict or prohibit the transfer of cash to, or the assumption of liabilities on behalf of, an affiliate if, in the judgment of the commission, such transfer or assumption would deprive the gaming facility applicant or licensee of financial stability.

(6) Any amendments or changes to a material debt transaction previously approved pursuant to paragraphs (1) and (2) of this subdivision must be filed with the commission at least 10 business days prior to executing such amendment or change. A supplemental submission should be filed detailing the impact of each proposed amendment or change and, where applicable, the overall impact of the proposed amendments or changes on debt balances, maturity dates, annual debt service requirements, and debt covenants. If the changes are deemed material, the licensee may not consummate the change or amendment without further commission approval.

(c)Change of qualifier or financial source.

(1) Each gaming facility applicant or licensee shall notify the commission, in writing, as soon as such applicant or licensee becomes aware of the appointment, nomination, election, resignation, incapacitation or death of any qualifier. Upon receipt of such notice, the commission shall undertake to notify the new qualifier of the requirement to file an appropriate application and consent to an investigation.

(2) Each gaming facility applicant or licensee shall immediately notify the commission, in writing, as soon as such applicant or licensee becomes aware that it intends to enter into a transaction bearing any relation to its gaming facility project that may result in new persons involved in the financing of the gaming facility. Upon receipt of such notice, the commission shall undertake to notify the new financial source requiring the filing of an appropriate application and subsequent investigation of that application.

(d)Monitoring of project construction. The award of license is subject to the following requirements in regard to the monitoring of the gaming facility project:

(1) Project schedules and reporting.

(i) The commission may create guidelines to aid the commission in its review and monitoring of the project. Such guidelines will be shared with the gaming facility licensee and may be amended as the commission may deem necessary.

(ii) Each gaming facility licensee shall submit to the commission a project schedule for the gaming facility licensee's capital investment in its gaming facility and related infrastructure. Such schedule shall include:

(a) all major stages of design and construction including all permitting and approvals, design deliverables, site preparation, foundation, structure, plumbing, electrical, mechanical, exterior finish and fenestration, long-lead items, insulation, interior finish and furnishings and landscaping, building commissioning and commissioning of gaming equipment and information technology systems;

(b) a timeline for commencement of the final stage of construction; and

(c) a timeline for the stage of construction at which the gaming facility licensee shall be approved to open for business.

(iii) If unforeseen or changed circumstances necessitate a change to a project schedule that will impact the completion date or requires a major change in the method or progress of construction as outlined in the gaming facility application, the gaming facility licensee may submit to the commission for its approval a revised project schedule, with a detailed statement of the unforeseen changed circumstances that justify the revised project schedule. If the commission approves such revised project schedule, it shall substitute and supersede the previously approved project schedule.

(iv) To assist in adherence to the project schedule, a gaming facility licensee shall submit to the commission in a media, format and level of detail acceptable to the commission, a quarterly status report.

(v) The licensee shall have a continuing obligation to provide to the commission in a timely manner an updated permits chart as well as any updates to the approvals process, such that the commission is continuously apprised of all material developments with respect to all permits and approvals required for the gaming facility.

(2) Inspection of construction and related records.

(i) At all times the commission or its representative may physically inspect the progress of construction, subject to reasonable construction site safety rules, to determine a gaming facility licensee's compliance with the approved design, project schedule and the terms and conditions of the license.

(ii) The commission may request or have access to, and the licensee shall provide, at any time, plans, specifications, submittals, contracts, financing documents or other records concerning the construction of the project or related infrastructure.

(iii) Following inspection of the construction site or review of construction records, the commission or its representative may notify a gaming facility licensee of any non-compliance with the terms of the license, including non-compliance with an approved design or project schedule. Upon receipt of such notification, a gaming facility licensee shall present a plan to the commission to address such non-compliance to the satisfaction of the commission.

(3) Certification of final stage of construction.

(i) A gaming facility licensee shall certify to the commission that such licensee has reached the final stage of construction as described in the approved project schedule or approved revised project schedule.

(ii) Upon receipt of such certification, the commission or the commission's representative may inspect the construction and request relevant plans, contracts, financing documents or additional records, in the discretion of the commission, which the licensee shall provide.

(iii) If the commission approves the gaming facility licensee's certification that such licensee has reached the final stage of construction, the commission shall return to the gaming facility licensee the cash deposit or release the deposit bond described in section 5301.9(a) of this Part and permit such gaming facility licensee to apply the deposit to the cost of the final stage of construction.

(iv) If the commission disapproves a gaming facility licensee's certification, the commission shall notify such licensee of the reasons for disapproval, and such licensee shall proceed diligently to cure the reasons for the disapproval.

(4) Determination that gaming facility may open for business. The commission shall not approve a gaming facility licensee to open a gaming facility for business or begin gaming operations until the commission has:

(i) determined that such gaming facility licensee has complied with the conditions in this Part;

(ii) determined that such gaming facility licensee has completed the permanent gaming area and other ancillary entertainment services and non-gaming amenities;

(iii) determined that such gaming facility licensee has completed all infrastructure improvements onsite and offsite and around the vicinity of the gaming facility, including projects to account for traffic mitigation or any other condition required by the gaming facility license in connection with the gaming facility;

(iv) had an adequate opportunity to inspect the completed gaming facility and related infrastructure, as well as relevant plans, contracts or other records to determine that the completed gaming facility and related infrastructure comply with the terms of the license, host and surrounding community agreements, impacted live entertainment venue agreements and certificates of occupancy permits and approvals issued in connection with such gaming facility; and

(v) issued an operation certificate for the gaming establishment pursuant to this Subchapter.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 5301.10

Adopted New York State Register September 30, 2015/Volume XXXVII, Issue 39, eff. 9/30/2015