New Jersey-2016-A187-Introduced

An Act concerning the requirement to maintain the qualifications of certain casino institutional investors and amending P.L.2011, c.19.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 50 of P.L.2011, c.19 (C.5:12-85.1) is amended to read as follows:

50. a. No casino license shall be issued to any applicant or retained by any holder unless the commission determines that all persons designated by the division as persons who must qualify in conjunction with such license meet all applicable qualification criteria and are not unqualified by reason of any disqualification criteria set forth in section 86 of P.L.1977, c.110 (C.5:12-86).

b. Corporate applicants for and holders of casino licenses shall be required to establish and maintain the qualifications of the following: (1) each officer of the corporation; (2) each director of the corporation; (3) each person who directly or indirectly holds any beneficial interest or ownership of the securities issued by such applicant or holder; (4) any holder who in the opinion of the director has the ability to control the applicant for or holder of a casino license or to elect a majority of the board of directors of such applicant or holder; and (5) each holding, intermediary or subsidiary company of an applicant for or holder of a casino license.

c. As to each holding, intermediary and subsidiary company of an applicant for or holder of a casino license, such applicants and holders shall be required to establish and maintain the qualifications of the following: (1) each Corporate Officer; (2) each director of the corporation; (3) each person who directly or indirectly holds a beneficial interest or ownership interest of 5% or more in such holding, intermediary or subsidiary company; (4) any person who in the opinion of the director has the ability to control or elect a majority of the board of directors of such holding, intermediary or subsidiary company; and (5) any other person who the director may consider appropriate for qualification.

d. The director shall have the authority to waive any or all of the qualification requirements for any person listed in paragraph (1), (2) or (3) of subsection c. of this section.

e. Applicants for and holders of casino licenses shall be required to establish and maintain the qualifications of any financial backer, investor, mortgagee, bondholder, or holders of indentures, notes or other evidences of indebtedness, either in effect or
proposed which bears relation to the casino operation or casino hotel premises who holds 25% or more of such financial instruments or evidences of indebtedness; provided however in circumstances of default, any person holding 10% of such financial instruments or evidences of indebtedness shall be required to establish and maintain his qualifications as required pursuant to subsection c. of this section. The director may, in his discretion, require that any other financial backer, investor, mortgagee, bondholder, or holder of indentures, notes or other evidences of indebtedness who does not meet the threshold set forth herein to establish and maintain his qualifications as required pursuant to subsection c. of this section.

f. Banks and licensed lending institutions shall be exempt from any qualification requirements under this act if such bank or licensed lending institution is acting in the ordinary course of business.

g. An institutional investor holding either (1) under 25% of the equity securities of a casino licensee's holding or intermediary companies, or (2) debt securities of a casino licensee's holding or intermediary companies, or another subsidiary company of a casino licensee's holding or intermediary companies which is related in any way to the financing of the casino licensee, where the securities represent a percentage of the outstanding debt of the company not exceeding 25%, or a percentage of any issue of the outstanding debt of the company not exceeding 50% unless the full issue is in the amount of [$150 million or] less than $75 million, shall be granted a waiver of qualification if such securities are those of a corporation, whether publicly traded or privately held, and its holdings of such securities were purchased for investment purposes only and it files a certified statement to the effect that it has no intention of influencing or affecting the affairs of the issuer, the casino licensee or its holding or intermediary companies; provided, however, that it shall be permitted to vote on matters put to the vote of the outstanding security holders. The director may grant a waiver of qualification to an institutional investor holding a higher percentage of such securities upon a showing of good cause and if the conditions specified above are met. Any institutional investor granted a waiver under this subsection which subsequently determines to influence or affect the affairs of the issuer shall provide not less than 30 days' notice of such intent and shall file with the division an application for qualification before taking any action that may influence or affect the affairs of the issuer; provided, however, that it shall be permitted to vote on matters put to the vote of the outstanding security holders. If an institutional investor changes its investment intent, or if the director finds reasonable cause to believe that the institutional investor may be found unqualified, no action other than divestiture shall be taken by such investor with respect to its security holdings until there has been compliance with the provisions of P.L.1987, c.409 (C.5:12-95.12 et seq.), including the execution of a trust agreement. The casino licensee and its relevant holding, intermediary or subsidiary company shall immediately notify the division of any information about, or actions of, an institutional investor holding its equity or debt securities where such information or action may impact upon the eligibility of such institutional investor for a waiver pursuant to this subsection.

h. If at any time the director finds that an institutional investor holding any security of a holding or intermediary company of a casino licensee, or, where relevant, of another subsidiary company of a holding or intermediary company of a casino licensee which is related in any way to the financing of the casino licensee, fails to comply with the terms of subsection f. of this section, or if at any time the director finds that, by reason of the extent or nature of its holdings, an institutional investor is in a position to exercise such a substantial impact upon the controlling interests of a licensee that qualification of the institutional investor is necessary to protect the public interest, the director may, in accordance with the provisions of subsections a. through e. of this section or subsections d. and e. of section 105 of P.L.1977, c.110 (C.5:12-105), take any necessary action to protect the public interest, including requiring such an institutional investor to be qualified pursuant to the provisions of the "Casino Control Act," P.L.1977, c.110 (C.5:12-1 et seq.).

i. Any company required to qualify pursuant to subsection b. of this section shall establish by clear and convincing evidence that it meets the standards set forth in section 84 of P.L.1977, c.110 (C.5:12-84).

j. As to each company required to qualify pursuant to subsection c. of this section, the applicant for or holder of the casino license shall establish by clear and convincing evidence that each such company meets the standards set forth in subsections a., c., and d. of section 84 of P.L.1977, c.110 (C.5:12-84).

k. Any natural person required to qualify pursuant to subsections b. and c. of this section shall be required to establish his qualifications in accordance with the standards applicable to casino key employees in section 89 of this act, P.L.1977, c.110 (C.5:12-89); provided, however that persons required to qualify pursuant to subsection c. of this section shall not be required to establish residency.

(cf: P.L.2011, c.19, s.50)

2. This act shall take effect immediately.

STATEMENT

Under the Casino Control Act, a casino license cannot be issued to any applicant, or retained by any licensee, unless the Casino Control Commission determines that all persons designated by the Division of Gaming Enforcement as persons who must qualify in conjunction with a casino license meet all applicable qualification criteria, and are not disqualified. Under that act, disqualification criteria include, but are not limited to, the failure to prove by clear and convincing evidence that the applicant or licensee is qualified to hold a casino license under the law; the failure to provide the necessary information, documentation, and assurances to establish such qualification; and the applicant's or licensee's conviction of certain crimes. Furthermore, casino license applicants or licensees are required to "establish and maintain the qualifications" of certain financial backers and institutional investors.

Under current law, applicants for and holders of casino licenses are required to establish and maintain the qualifications of certain financial backers, investors, mortgagees, bondholders, or holders of indentures, notes or other evidences of indebtedness. This requirement applies when such persons hold 25% or more of the casino's financial instruments or evidences of indebtedness. However, the law provides that, in circumstances of default, any person holding 10% of the casino's financial instruments or evidences of indebtedness is required to establish and maintain his or her qualifications, as would a holding, intermediary, or subsidiary company of a casino licensee or casino license applicant. The director of the division has the discretion to require that any other financial backer, investor, mortgagee, bondholder, or holder of indentures, notes or other evidences of indebtedness who does not meet this threshold must establish and maintain his or her qualifications.

Current law also provides for certain exemptions from this requirement. Under the law, an institutional investor holding either (1) under 25% of the equity securities of a casino licensee's holding or intermediary companies, or (2) debt securities of a casino licensee's holding or intermediary companies, or another subsidiary company of a casino licensee's holding or intermediary companies which is related in any way to the financing of the casino licensee, where the securities represent a percentage of the outstanding debt of the company not exceeding 25%, or a percentage of any issue of the outstanding debt of the company not exceeding 50% unless the full issue is in the amount of $150 million or less, must be granted a waiver of qualification provided certain additional requirements are met.

This bill reduces, from $150 million or less to less than $75 million, the dollar amount of a casino's full outstanding debt issue that would exempt a casino institutional investor from the requirement to maintain his or her qualifications.