W. Va. Code R. § 175-5-10

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 175-5-10 - Deferred payment financing option

10.1. Any active retail licensee who elects the purchase option for a Class A retail license or licenses and complies with the requirements of W. Va. Code § 60-3A-10d shall be permitted to apply for the deferred payment financing option for each such license.

10.2. The Commissioner shall require a signed letter of intent and a deferred payment financing agreement, in the form provided by the Commissioner, from any such active retail licensee electing the purchase option and the deferred payment financing option.

10.3. As part of the application for the deferred financing payment option, to be provided by the Commissioner at least 60 days prior to the license bidding procedure, the Commissioner shall require, at a minimum, the following information:

10.3.a. Certification that the applicant elects to pay the purchase option for a Class A retail license or licenses as provided in W. Va. Code § 60-3A-10b;

10.3.b. Certification that the applicant is the current holder and operator of the active retail license issued by the Board and for which the purchase option and the deferred payment financing option is elected;

10.3.c. A description of the retail license or licenses currently held by the applicant;

10.3.d. Any information the Commissioner requires to evaluate the creditworthiness of the applicant, including without limitation the applicant's authorization to perform a criminal background check and credit check; and

10.3.e. Any additional information the Commissioner requires to effectuate the purposes of W. Va. Code § 60-3A-10d.

10.4. Any applicant must submit with its deferred payment financing option application, a down payment of fifty percent (50%) of the total amount due under the deferred payment financing agreement and subject to W. Va. Code § 60-3A-10d(d) no later than May 1, 2010, or May 1^st for every ten year license period thereafter. Installment payments are subject to interest. All payments shall be payable via electronic funds transfer, certified check or money order.

10.4.a. The total amount due is an amount equal to the ten percent (10%) over and above the minimum bid amount, as determined by the Board.

10.4.b. The down payment is fifty (50%) percent of the total amount due.

10.4.c. The remaining balance of the total amount due is the total amount due minus the down payment.

10.4.d. The interest rate is a rate computed by using the adjusted prime lending rate minus one hundred basis points. The interest rate shall be set on the date the financing is approved by the Commissioner.

10.5. Upon review of each applicant's completed deferred payment financing option application, the Commissioner shall make a determination of the applicant's eligibility within fifteen (15) days from receipt of a complete application.

10.5.a. If the Commissioner determines an applicant is ineligible for deferred payment financing, is not in good standing with the state or does not otherwise meet the requirements of W. Va. Code §60-3A for the issuance of a Class A retail license, the Commissioner shall notify the applicant that his or her application for deferred payment financing is denied and shall refund in full any moneys paid to the Commissioner as a down payment.

10.5.b. If the applicant's deferred payment financing application is denied for any reason other than the fact that the applicant is not in good standing with the state or is not otherwise eligible for the issuance of a Class A retail license, the Commissioner shall allow the applicant to pay the full amount of a purchase option for its Class A retail license or licenses as provided in W. Va. Code § 60-3A-10d. At the request of the applicant, the Commissioner may credit any moneys received as a down payment towards payment of the full amount of a purchase option for its Class A retail license or licenses.

10.6. All eligible applicants shall enter a deferred payment financing agreement with the Commissioner, which shall contain such terms and conditions as required by the Commissioner but at a minimum shall contain the following:

10.6.a. The total amount due;

10.6.b. The interest amount to be charged on the total amount due; and

10.6.c. The remaining balance of the total amount due, and the installment payments (including interest) which are payable over a period of the first sixty (60) months from July 1, 2010, or for every July 1^st for every ten year license period thereafter.

10.6.c.1. The installment payments are payable in monthly or quarterly installment payments as elected by the retail licensee on its deferred payment financing application.

10.6.c.2. If a retail licensee elects to pay monthly, his or her first installment payment is due on August 1, 2010, or on August 1^st for every ten year license period thereafter, and successive installment payments are due on the first day of each month thereafter until the remaining balance of the total amount due, plus interest, is retired.

10.6.c.3. If a retail licensee elects to pay quarterly, his or her first installment payment is due on October 1, 2010, or on October 1^st for every ten year license period thereafter, and successive installment payments are due on the first day of every third month thereafter until the remaining balance of the total amount due, plus interest, is retired.

10.6.c.4. A retail licensee may elect at some point during the deferred payment financing process to pay the remaining balance of the total amount due, plus interest. There is no prepayment penalty for such a payment in full.

10.7. The failure of a retail licensee to make an installment payment in accordance with the terms of the deferred payment financing agreement shall result in the entire remaining balance of the total amount due, plus interest, becoming immediately due and payable to the Commissioner;

10.7.a. Upon the retail licensee's payment of remaining balance of the total amount due, plus interest, the Commissioner may review the facts and circumstances surrounding the failure to make an installment payment and determine if the retail licensee should continue to be licensed and operate its Class A retail license or licenses. The Commissioner may choose a number of penalties, including probation, suspension, monetary penalties, any combination of such penalties or revocation;

10.7.b. The revocation of a retail license for non-payment of an installment payment or failure to pay in full of the remaining balance of the total amount due, plus interest, shall result in the forfeiture of the down payment and any moneys paid to the Commissioner in accordance with W. Va. Code § 60-3A-10d.

10.8. The failure of a retail licensee to make an installment payment in accordance with the terms of the deferred payment financing agreement, as agreed to by the retail license, within thirty (30) days of the day on which the payment was due shall result in the immediate revocation of the Class A retail license held by the licensee for which the non-payment occurred.

10.9. The Commissioner shall reissue any license revoked pursuant to Section 10.8 and proceed to advertise and offer for sale by sealed competitive bid in accordance with this rule and the code.

10.10. A retail licensee whose retail license is revoked for failure to make payments as provided in the deferred payment financing agreement and pursuant to Section 10.8 is deemed an unsuitable retail licensee who would not qualify to hold a Class A retail license or Class B retail license or any such license provided by the Commissioner and shall be permanently prohibited from bidding on a retail license in any subsequent bids in any ten year license period.

10.11. The purchase option and the deferred payment financing option are not available to any active retail licensee, applicant or subsequent licensee who is a successful bidder or purchaser of a retail license and who subsequently chooses to open and operate a Class A retail license or freestanding liquor retail outlet or who converts a Class B retail license to a Class A retail license.

10.12. This rule and the code do not create any expectation or rights in any retail licensee that the deferred payment financing option will or will not be available for any subsequent ten year license period.

W. Va. Code R. § 175-5-10