Application to Establish, Maintain, or Use a Representative Office in New York State

The statutory requirements for such a license are specified in Article V-B of the New York Banking Law, as amended. The law requires licensing of all foreign banking corporations wishing to establish a representative office. Section 221-d of the statute requires that the Superintendent of Financial Services be satisfied "that the financial responsibility, experience, character, and general fitness of the foreign banking corporation and its representative are such as to command the confidence of the community and to warrant belief that the representative will operate honestly, fairly and efficiently . . ." Additional factors considered by the Superintendent in connection with the licensing of representative offices may be found in Supervisory Procedure FB 1.

The application requirements are set forth in Supervisory Procedure FB 102 and Form FB-102.

The applicant must maintain policies and procedures designed to ensure and monitor compliance with the Bank Secrecy Act (BSA) as amended by the USA PATRIOT Act and the anti-money laundering programs of Part 115 of the General Regulations of the Banking Board. A compliance program must include, at a minimum, a system of internal controls to assure ongoing compliance, independent testing for compliance to be conducted by bank personnel or by an outside party, the designation of an individual or individuals responsible for coordinating and monitoring day-to-day compliance, and training for appropriate personnel.

We believe you will find it helpful to discuss your proposal with us prior to the preparation of a formal application.

NYL - ARTICLE V-B -- LICENSE FOR A FOREIGN BANKING CORPORATION TO MAINTAIN A REPRESENTATIVE OFFICE

Section
221-a. Doing business without license prohibited.
221-b. Definitions.
221-c. Application for license; fees.
221-d. Conditions precedent to issuing license; procedure where application denied.
221-e. License provisions.
221-f. Grounds for suspension or revocation of license; procedure.
221-g. Superintendent authorized to examine; expenses.
221-h. Licensee's books and records; reports.
221-i. Notice of acquisition of control or merger.
221-j. Authority of superintendent.
221-k. Separability of provisions.

NYL - § 221-a. Doing business without license prohibited.

1. No person, co-partnership, association, corporation or other entity shall establish, maintain or use one or more offices in this state as the representative of one or more foreign banking corporations unless the foreign banking corporation to be represented has first obtained a license from the superintendent of Financial Services. Entities lawfully registered pursuant to this article on or before September first, nineteen hundred ninety-two shall be deemed licensed pursuant to this section until September first, nineteen hundred ninety-four, provided however that the superintendent may require the submission of any additional documents or materials relating to the business activities of the registrant as he or she may deem necessary or appropriate.

2. Upon receipt of a license, the foreign banking corporation may establish one or more representative offices in this state which shall be subject to examination whenever in the superintendent's judgment such examination is necessary or advisable.

3. Such office shall be limited to conducting the following activities: solicitation of loans and in connection therewith, assembly of credit information, making of property inspections and appraisals, securing of title information, preparation of applications for loans including making recommendations with respect to action thereon, solicitation of investors to purchase loans from the bank, the search for such investors to contract with the bank for the servicing of such loans; solicitation of new business and conduct of research. Any other activity which the foreign banking corporation seeks to conduct at such office, shall be subject to the prior written approval of the superintendent by general regulation or upon application in such form as the superintendent may prescribe.

NYL - § 221-b. Definitions.

  1. Banking institution. The term "banking institution", when used in this article, shall mean any entity authorized by its charter to accept deposits and to make loans.
  2. Foreign banking corporation. The term "foreign banking corporation", when used in this article, shall mean any banking institution organized under the laws of any jurisdiction other than the United States, any state of the United States or Puerto Rico.
  3. Representative. The term "representative" shall mean any person or entity engaging in any activity in this state for or on behalf of a foreign banking corporation, provided that such activity is not otherwise permitted by law.
  4. The superintendent shall be authorized to exempt from the above definitions such additional persons, entities, activities or classes thereof which shall be deemed appropriate in order to effectuate the purposes of this article.

NYL - § 221-c. Application for license; fees.

The application for such license shall be in writing under oath and shall contain the information required by and be in the form prescribed by the superintendent. As part of the application, the foreign banking corporation shall appoint the superintendent or his or her successor as agent for service of process in connection with any action or proceeding against the foreign banking corporation relating to any cause of action which may arise out of a transaction with its representative office, with the same force and effect as if it were a domestic corporation and had been lawfully served with process in this state. At the time of making such application, the applicant shall pay to the superintendent as an investigation fee the sum of two hundred fifty dollars.

NYL - § 221-d. Conditions precedent to issuing license; procedure where application denied.

Upon the filing of an application for a license, if the superintendent shall find that the financial responsibility, experience, character, and general fitness of the foreign banking corporation and its representative are such as to command the confidence of the community and to warrant belief that the representative will operate honestly, fairly, and efficiently within the purpose and intent of this article, a license shall thereupon be issued in duplicate to conduct the activity described in section 221-a of this article in accordance with the provisions of this article. If the superintendent shall not so find, the license shall not be issued, and the applicant shall be notified of the denial. The superintendent shall transmit one copy of such license to the applicant and file another in the office of the Department of Financial Services. Such license shall remain in full force and effect until it is surrendered by the licensee or revoked or suspended as hereinafter provided. The superintendent shall approve or deny every application for a license hereunder within ninety days from the filing thereof provided, however, that failure to act within the prescribed period shall not be deemed approval of any such application.

NYL - § 221-e. License provisions.

Each license issued under this article shall state the address or addresses at which a representative is to be located and shall state fully the name of the licensee. Such license shall not be transferable or assignable. In the event the location of the representative shall be changed, the licensee shall forthwith notify the superintendent who shall thereupon without charge attach to the license an amendment certificate setting forth such changed location.

NYL - § 221-f. Grounds for suspension or revocation of license; procedure.

  1. The superintendent may revoke any license issued hereunder if it shall be found that:
    • (a) The licensee or its representative has violated any provision of this article, or of any rule or regulation made by the superintendent under and within the authority of this article or of any other law, rule or regulation of this state.
    • (b) Any fact or condition exists which, if it had existed at the time of the original application for such license, would have warranted the superintendent in refusing originally to issue such license.
  2. The superintendent may, on good cause shown, suspend any license for a period not exceeding thirty days, pending investigation.
  3. Except as provided in subdivision two of this section, no license shall be revoked or suspended except after notice and a hearing thereon.
  4. Any licensee may surrender any license by delivering to the superintendent written notice that it thereby surrenders such license, but such surrender shall not affect such licensee's civil or criminal liability for acts committed prior to such surrender.
  5. Every license issued hereunder shall remain in force and effect until the same shall have been surrendered, revoked or suspended in accordance with the provisions of this article, but the superintendent shall have authority to reinstate a suspended license or to issue a new license to a licensee whose license shall have been revoked if no fact or condition then exists which would have warranted the superintendent in refusing originally to issue such license under this article.
  6. Whenever the superintendent shall revoke or suspend a license issued pursuant to this article, a written order shall be immediately executed in duplicate to that effect. The superintendent shall file one copy of such order in the office of the department and shall forthwith serve the other copy upon the licensee. Any such order may be reviewed in the manner provided by article seventy-eight of the civil practice law and rules. Such application for review as authorized by this section must be made within thirty days from the date of such order of suspension or revocation.

NYL - § 221-g. Superintendent authorized to examine; expenses.

For the purpose of discovering violations of this article or securing information lawfully required by him hereunder, the superintendent may at any time, and as often as may be determined, either personally or by a person duly designated by him, investigate the activities of representatives of licensees and examine the books, accounts, records, and files used in relation to those activities. For that purpose the superintendent and a duly designated representative (i) shall have free access to the offices, books, accounts, papers, records, files, safes and vaults of licensees and their representatives, and (ii) shall have authority to require the attendance of and to examine under oath all persons whose testimony may be required relative to the activities of a representative. The expenses incurred in making any examination pursuant to this section shall be assessed against and paid by the licensee so examined, except that traveling and subsistence expenses so incurred shall be charged against and paid by licensees in such proportions as the superintendent shall deem just and reasonable, and such proportionate charges shall be added to the assessment of the other expenses incurred upon each examination. Upon written notice by the superintendent of the total amount of such assessment, the licensee shall become liable for and shall pay such assessment to the superintendent.

NYL - § 221-h. Licensee's books and records; reports.

A foreign banking corporation licensed pursuant to this article shall keep or cause each of its representatives to keep and use such books, accounts and records as will enable the
superintendent to determine whether the representative is complying with the provisions of this article and with the rules and regulations lawfully made by the superintendent. Such books, accounts and records shall be preserved for at least three years; provided however, that preservation by photographic reproduction thereof or records in photographic form shall constitute compliance with the requirements of this section. The superintendent may require such regular or special reports as may be deemed necessary to the proper supervision of licensees under this article. Such additional reports shall be in the form prescribed by the superintendent and shall be subscribed and affirmed as true under the penalties of perjury.

NYL - § 221-i. Notice of acquisition of control or merger.

  1. A foreign banking corporation licensed pursuant to this article to maintain a representative office in this state shall file with the superintendent a notice, in such form and containing such information as the superintendent may prescribe, no later than fourteen calendar days after such foreign banking corporation becomes aware of any acquisition of control of such corporation or merges with another foreign banking corporation.
  2. Control, for purposes of this section, means any person or entity, or group of persons or entities acting in concert, directly or indirectly, owning, controlling, or holding with power to vote, twenty-five percent or more of any class of voting stock of such foreign banking corporation, or having the ability in any manner to elect a majority of the directors of such foreign banking corporation, or otherwise exercising a controlling influence over the management and policies of such foreign banking corporation as defined by the superintendent by regulation.

NYL - § 221-j. Authority of superintendent.

The superintendent is hereby authorized and empowered to promulgate, in addition hereto and not inconsistent herewith, such general rules and regulations, definitions, and such specific rulings, demands and findings as may be deemed necessary for the proper conduct of the business authorized and licensed hereunder and for the enforcement of this article.

NYL - § 221-k. Separability of provisions.

If any provision of this article, or the application of such provision to any person, entity or circumstance, shall be held invalid, the remainder of the article, and the application of such provision to persons, entities or circumstances other than those as to which it is held invalid, shall not be affected thereby.

NYR - FB 1 -- SUPERVISORY POLICY
(Statutory authority: Banking Law, §§ 14 (1), 26, 200) Sec.
1.1 General statement
1.2 General standards

NYR - 1.1 General statement.

No foreign banking corporation shall be granted a license to establish and maintain a branch, agency or representative office in this State, unless the superintendent shall have found that:

  • (a) the proposed branch, agency or representative office will promote the public convenience and advantage; and
  • (b) the character, responsibility and general fitness of the foreign banking corporation, its principal shareholders, its management and the person (s) designated to represent such foreign banking corporation are such as to command confidence and warrant belief that the business of such foreign banking corporation will be honestly and efficiently conducted in accordance with the intent and purpose of the New York Banking Law.

NYR - 1.2 General standards.

(a) In acting on any application to establish and maintain a branch or agency in this state under Banking Law section 26, or a representative office in this state under Banking Law section 221-c, the superintendent shall consider the following factors:

  1. the economic and political stability of the home country of the foreign banking corporation;
  2. the degree to which the foreign banking corporation and any foreign bank of which the foreign banking corporation is a subsidiary is subject to comprehensive supervision and regulation on a consolidated basis by the home country authorities;
  3. whether adequate information will be made available initially on a continuing basis to the department on the operations and activities of the foreign banking corporation and its affiliates;
  4. 4the financial strength and resources of the foreign banking corporation (including compliance with international capital guidelines as promulgated by the Bank for International Settlements, the applicant's projected capital position, the history of the applicant's operating performance, and its future prospects);
  5. the integrity, competence and experience (including experience in international banking) of the management and principal shareholders of the foreign banking corporation and the person (s) designated to represent such foreign banking corporation;
  6. the supervisory evaluations of the foreign banking corporation by other regulatory authorities;
  7. the size and significance of the foreign banking corporation in relation to other banking corporations in its home country and worldwide; and
  8. any other factors the superintendent deems relevant.

(b) In applying the criteria listed in paragraph (a) above to an application by a foreign banking corporation to establish and maintain a representative office, the superintendent may take into account the limited nature of the activities that shall be conducted through such representative office.

NYR - FB 2 -- REPRESENTATIVE OFFICES OF FOREIGN BANKING CORPORATIONS
(Statutory authority: Banking Law §221-a) Sec:
2.1 General.
2.2 Definitions.
2.3 Permissible activities.
2.4 Other activities.
2.5 Prior notice for regional administrative offices.
2.6 Prior notice for foreign banking corporations with branch or agency.
2.7 Exemption from licensing and prior notice procedure for establishment of office performing limited administrative function.

NYR - 2.1 General.

No foreign banking corporation may establish, maintain or use a representative office in this State without having first obtained a license from the superintendent. Representative offices of foreign banking corporations that were lawfully registered under Article V-B of the Banking Law on or before September 1, 1992 shall be required to obtain a license from the Superintendent to maintain such representative office prior to September 1, 1994.

NYR - 2.2 Definitions.

For purposes of this Supervisory Policy,

  • (a) "affiliate" means any company that controls, is controlled by or is under common control with such foreign banking corporation;
  • (b) "banking institution" means any entity authorized by its charter to accept deposits and to make loans;
  • (c)"control" means the direct or indirect ownership, holding or control with power to vote of 25% or more of any class of voting stock or the ability to elect a majority of the directors of a company;
  • (d) "foreign banking corporation" means any banking institution organized under the laws of any jurisdiction other than the United States, any state of the United States, the District of Columbia, any territory of the United States or Puerto Rico; and
  • (e) "regional administrative office" means any representative office of a foreign banking corporation that (i) is established by a foreign banking corporation that operates one or more branches, agencies, Article XII investment companies or banks in this state; (ii) is located in the same city as, but not on the same or contiguous premises (unless held out by the foreign banking corporation or determined by the superintendent to be a separate office) of, one or more of the foreign banking corporation's branches, agencies, Article XII investment companies or banks in this state; and (iii) manages, supervises or coordinates the operations of the foreign bank or its affiliates, if any, in a particular geographic region.
  • (f)"representative office" means any place of business located in this state of a foreign banking corporation other than a branch or agency, and any place of business located in
    this state of an affiliate of a foreign banking corporation that engages in representational functions (including, but not limited to, soliciting business, marketing services or acting as liaison with customers other than as an accommodation to customers of such affiliate) on behalf of the foreign banking corporation in connection with its banking activities; including a place of business in this state of a foreign banking corporation at which location the foreign banking corporation engages solely in limited administrative functions in connection with its banking activities that do not involve contact or liaison with customers or potential customers (such as back office support systems).

NYR - 2.3 Permissible activities.

(a) The activities that may be conducted by a representative office of a foreign banking corporation in this State on behalf of such foreign banking corporation shall be limited to the following:

  1. solicitation of loans in principal amounts of $250,000 or more and, in connection therewith, assembly of credit information, making of property inspections and appraisals, securing of title information, preparation of applications for loans (including making recommendations with respect to action thereon);
  2. solicitation of purchasers of loans from the foreign banking corporation;
  3. solicitation of parties to contract with the foreign banking corporation for the servicing of its loans;
  4. solicitation of other banking business on behalf of the foreign banking corporation, except for solicitation of deposits or deposit-type liabilities;
  5. conduct of research;
  6. acting as liaison with customers of the foreign banking corporation;
  7. acting as liaison with correspondents of the foreign banking corporation;
  8. execution of loan documents for loans in principal amounts of $250,000 or more pursuant to specific written authorization with respect to each such loan;
  9. in the case of regional administrative offices, manage, supervise or coordinate the operations of the foreign bank or its affiliates, if any, in a particular geographic region, including credit approvals; and
  10. any other activity approved in writing by the Superintendent.

(b) Notwithstanding the foregoing, a representative office may not engage in a banking business or trading activities for the account of the foreign banking corporation, or, on behalf of the foreign banking corporation, make final credit decisions (except in the case of a regional administrative office), execute documents for or solicit loans in principal Amounts of less than $250,000, disburse funds, transmit funds, accept loan repayments or solicit, accept or contract for deposits or deposit-type liabilities.

NYR - 2.4 Other activities.

A foreign banking corporation may, unless otherwise advised by the superintendent, obtain a license to establish a regional administrative office in this state with 45 days prior written notice to the Superintendent. If a foreign banking corporation maintaining a licensed branch, agency, Article XII investment company or bank in this state is performing a regional administrative office function on the same or contiguous premises as the licensed or chartered entity of the foreign banking corporation, the foreign banking corporation shall provide written notice to the Superintendent of such fact and the particular regional administrative office functions performed and shall identify relevant regional office personnel. No separate license for those regional administrative office functions will be issued, unless the regional administrative office functions are either held out by the foreign banking corporation or determined by the Superintendent to be separate from the other functions taking place on the premises. The foreign banking corporation shall notify the superintendent within 45 days of any change in regional administrative functions or personnel.

NYR - 2.6 Prior notice for foreign banking corporations with branch or agency.

A foreign banking corporation which maintains a New York state-licensed branch or agency may, unless otherwise advised by the Superintendent, obtain a license to establish a representative office in this state with 45 days prior written notice to the Superintendent.

NYR - 2.7 Exemption from licensing and prior notice procedure for establishment of office performing limited administrative function.

Unless otherwise advised by the Superintendent, a foreign banking corporation not otherwise maintaining a licensed branch or agency in this state may, with 45 days prior written notice to the superintendent, establish a place of business of the foreign banking corporation in this state at which location the foreign banking corporation engages solely in limited administrative functions (such as back office support systems) in connection with its banking activities that do not involve contact or liaison with customers or potential customers. Unless otherwise advised by the Superintendent, if a foreign banking corporation already maintains a licensed branch or agency in this state it may establish an office that engages solely in limited administrative functions in connection with its banking activities that do not involve contact or liaison with customers or potential customers (such as back office support systems), by notifying the Superintendent within 45 days of establishing such office.

NYR - FB 102 -- APPLICATION BY A FOREIGN BANKING CORPORATION FOR A LICENSE TO ESTABLISH OR MAINTAIN A REPRESENTATIVE OFFICE

(Statutory authority: Banking Law §221-c) Sec:
102.1 General information
102.2 Prior consultation
102.3 Information and documents requested
102.4 Prior notice for regional administrative offices
102.5 Foreign banking corporations with branch or agency
102.6 Notice for establishment of an office performing limited administrative functions

NYR - 102.1 General information.
A foreign banking corporation seeking a license under Banking Law, Article V-B and Supervisory Policy FB2, to establish, maintain or use a representative office in New York State shall submit to the Superintendent an application on Form FB-102, or written notification as appropriate, containing the information and documents required by section 102.3 of this Supervisory Procedure, or written notification as appropriate, accompanied by a check for [please refer to the Department's Application Fee Schedule].

NYR - 102.2 Prior consultation.

Preparation of the application on Form FB-l02 will be facilitated by prior consultation between the applicant and representatives of the Department of Financial Services.

NYR - 102.3 Information and documents requested.

A foreign banking corporation seeking a license to establish or maintain a representative office must submit the following information and documents:

  • (a) the name and principal place of business of such foreign the name and principal place of business of such foreign banking corporation; banking corporation;
  • (b) the place where the proposed representative office will be located;
  • (c) the names of and biographical information, including a description of the educational and business background, for any person (s) who shall act as representative (s) of the corporation;
  • (d) a description of the history and background of the foreign banking corporation, including the following:

(1) brief history of the foreign banking corporation;

(2) ranking by asset size in the home country;

(3) number of offices in the home country;

(4) description of organization structure of the foreign banking corporation (including shareholders directly or indirectly owning or controlling 10% or more of the capital stock of the applicant, its affiliates and any agencies, branches or representative offices of the applicant in the United States and other countries);

(5) description of management structure, including board of directors and principal officers of the foreign banking corporation;

(6) description of the business of the foreign banking corporation;

  • (e)an organization chart for the foreign banking corporation and its top tier parent, if any, showing all affiliated companies and the place where each company is organized;
  • (f) financial statements:

(1) a consolidated statement of the applicant's financial condition as of a date within 90 days prior to the date of application, certified by the applicant's chief executive or financial officer;

(2) audited consolidated financial statements, including statements of income and expense, for the applicant's latest three fiscal years or for the period that applicant has been in business if less than three years, certified by the applicant's chief executive or financial officer, with amounts to be shown in the applicant's local currency and the United States dollar equivalent;

(3) calculation of applicant's risk-based capital ratio; and

(4) an English language copy of the applicant's latest annual report;

  • (g) an analysis of loans, including, but not limited to, information on delinquencies, non-accrual loans, assets acquired in satisfaction of debts previously contracted, and loans with reduced interest charges;
  • (h) n analysis of the extent of country risk exposure of the applicant;
  • (i) a list of the major United States and other correspondent bank relationships of the applicant, a list of United States and other banks which have extended any lines of credit to the applicant and the amount of such lines;
  • (j)a profile of the home country including a description of:

(1) political and economic structure;

(2)economic ties with Export-Import Bank, International Monetary Fund, World Bank and other similar organizations;

(3) foreign trade, including balance of payments with the United States and other countries; and

(4) foreign exchange restrictions;

  • (k) a description of the bank regulatory system in the home country of the applicant and, if different, any top tier foreign banking corporation that owns or controls the applicant, addressing in each case:

(1) the extent to which the foreign banking corporation is subject to comprehensive supervision or regulation on a consolidated basis by its home country authorities, including whether each foreign banking corporation is supervised or regulated in such a manner that its home country supervisor receives sufficient information on the worldwide operations of the foreign banking corporation (including the relationships of the foreign banking corporation to any affiliate) to assess the foreign banking corporation's overall financial condition and compliance with law and regulation;

(2) the powers and functions of the home country authorities;

(3) the frequency and scope of supervisory examinations of banking institutions;

(4) the function of the Central Bank and its relationship to private banking institutions in the home country;

(5) the deposit insurance system, if any, in the home country; and

(6) the extent to which banking institutions from other countries are permitted to conduct business in the applicant's home country;

  • (l) a statement from the home country authorities that:

    (1) such authorities do not object to the establishment of the proposed representative office; and

    (2) the foreign banking corporation is duly organized and licensed to conduct a general banking business and is in good standing;

  • (m) a description of the types of activities to be conducted and, if applicable, the types of business to be solicited at the proposed representative office;
  • (n) a description of the staffing of the office and the manner in which the office will be supervised by the applicant, including number of persons to be employed, their capacities and names and brief biographies of the representative (s) and other key personnel;
  • (o) a certified copy of resolutions of applicant's board of directors either sworn to before a United States Consular Official or, where the applicant's country of origin is a party to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, accompanied by an apostille as provided in Supervisory Procedure G 7 of this Title:
  • (1) authorizing the filing of the application and designating the officer who is to sign the application;
  • (2) designating the person or persons who is/are to be the representative (s) of the applicant or who shall be authorized to appoint such person or persons;
  • (3) authorizing the appointment of the Superintendent as true and lawful attorney for service of process; and
  • (4) authorizing the designation of the person to whom process may be forwarded by the Superintendent;
  • (p) a duly executed instrument appointing the Superintendent the applicant's true and lawful attorney for the service or process;
  • (q) a certificate of designation, specifying the name and address of the person to whom process may be forwarded by the Superintendent;
  • (r) an affidavit of the proposed representative (s) describing any legal proceedings against him or her;
  • (s) two duly authenticated copies of applicant's charter and by-laws or the equivalent thereof;
  • (t) an opinion of a member of the Bar of the State of New York stating that the activities of the proposed representative office are in compliance with section 221-a

(3) of the Banking Law and Supervisory Policy FB2;

  • (u) an opinion of a member of the bar of the applicant's home country that:

(1) applicant's charter authorizes it to conduct the activities permitted to the proposed representative office; and

(2) the application complies with the laws of the applicant's home country;

  • (v) a certificate signed by a senior executive officer of the applicant certifying that the applicant is conducting its business as authorized by its charter and bylaws and in compliance with the laws of its home country;
  • (w) a statement containing factual data to demonstrate that the public convenience and advantage will be promoted by approval of the application, including the applicant's rationale for wishing to establish a representative office in New York State;
  • (x) a statement from the foreign banking corporation providing the Superintendent with adequate assurances that information will be made available to the Superintendent on the operations or activities of the foreign banking corporation and any of its affiliates that the Superintendent deems necessary to determine and enforce compliance with applicable New York State laws and regulations; and
  • (y) such additional documents or information as the Superintendent may require.

102.4 Prior notice for regional administrative offices.

The notice required by Section 2.4 of Supervisory Policy FB 2 for establishing a regional administrative office shall contain the information required under Section 102.3(a)-(c), (m)-(n), (p)-(r), (u) and (y).

NYR - 102.5 Foreign banking corporations with branch or agency.

The notice required by Section 2.5 of Supervisory Policy FB 2 for a foreign banking corporation currently maintaining a New York state-licensed branch or agency to obtain a license to establish a representative office in New York State shall contain the information required under Section 102.3(a)-(c), (l)-(r), (t)-(w) and (y).

NYR - 102.6 Notice for establishment of an office performing limited administrative functions.

The notice required by Section 2.7 of Supervisory Policy FB 2 for establishing an office performing limited administrative functions shall contain the following information:

                                                                  FORM FB102

  • (a) the name and address of the foreign banking corporation;
  • (b) the location in New York of the office performing limited administrative functions and the office (s) of the bank for which the New York office is performing the limited administrative functions;
  • (c) the activities of the New York office;
  • (d) a description of the staffing of the New York office; and
  • (e) any additional material as requested by the Superintendent
  • APPLICATION BY A FOREIGN BANKING CORPORATION FOR A LICENSE TO ESTABLISH OR MAINTAIN A REPRESENTATIVE OFFICE IN THE STATE OF NEW YORK

    Section 1 - General Information.

    1. A foreign banking corporation which seeks a license under Banking Law Article V-B and Supervisory Procedure FB 102 to establish, maintain or use a representative office in New York State should submit the information and documents required by Section 3 of this Form FB-102 to the Superintendent of Financial Services, accompanied by a check for $7,500 payable to the order of "Superintendent of Financial Services of the State of New York" as an investigation fee.

    2. A foreign banking corporation seeking to obtain a license to establish, maintain or use a regional administrative office under proposed Supervisory Policy FB 2.4 and Supervisory Procedure FB 102.4 or a foreign banking corporation currently maintaining a New York State-licensed branch or agency seeking to obtain a license to establish a representative office should submit the information and documents required under Parts A. 1-4, D, E and F.1-5, 7-10.

    3. The Superintendent reserves the right to require additional information in connection with the application. The applicant may, of course, submit any information in addition to that required which it deems pertinent to the application.

    4. The application may be filed in the form that such application is filed with the Board of Governors of the Federal Reserve System; provided that the applicant includes with the application a cross reference sheet indicating where in the federal application the information required under each item of this Form FB-102 is located; and provided further that any information, documents or exhibits not required in the federal application but required in this Form FB-102 are included in the application or in a supplement to the application.

    5. Copies of any additional material filed as part of a concurrent application to the Board of Governors of the Federal Reserve System should be also submitted to the Department of Financial Services.

    6. You are reminded that this and all applications submitted to the Department of Financial Services are available to the public under the Freedom of Information Law (FOIL). Applicants may, for good reason, request that certain portions of the application be held confidential. Such information should be placed in a separate section of the application marked "Confidential" along with the reasons supporting the applicant's request for confidential treatment. The main application should note that such section (or part of such section) is contained in the confidential portion. The decision as to whether such material will be held confidential, however, will be at the sole discretion of the Superintendent. In most cases requests for confidential treatment will be granted for personal data on individuals or where the applicant might be damaged by the release of proprietary information.

    7. The statutory period for approval or disapproval of an application submitted pursuant to Supervisory Procedure FB 102 shall commence on the date that the Department of Financial Services informs the applicant that the contents of the application and the required documents and exhibits are acceptable in the form submitted.

    8. All documents submitted in foreign language originals must be accompanied by certified translations into the English language

    9. This is not a blank form to be filled in. It is a guide copy to be used in preparing the application or notice required under Supervisory Procedure FB 102. Any application or notice prepared in accordance with this form should refer to the item numbers listed when supplying the information requested therein.

    10. Please submit application in duplicate. Also include one copy of the application submitted to the Federal Reserve Bank.

    Section 2 - Prior Consultation.

         Preparation of the data and documents to be filed in connection with an application will be facilitated by prior consultation between the applicant and representatives of the Department of Financial Services.

    Section 3 - Documents/Information required.

    Part A. Description of the Applicant
    1. Name of applicant.

    2. Principal place of business of applicant.

    3. Proposed representative office location.

    4. List the names of and provide biographical information in the form attached as Annex A hereto for each person who shall act as a representative of the applicant.

    5. Describe the history and background of the applicant, including the following:
    (a) brief history of the applicant;

    (b) ranking by asset size in the home country;

    (c) number of offices in the home country;

    (d) organization structure of the applicant (including shareholders directly or indirectly owning or controlling 10% or more of the capital stock of the applicant, its affiliates and any agencies, branches or representative offices of the applicant in the United States and other countries);

    (e) management structure, including board of directors and principal officers of the applicant. Please provide a brief background (resumes /biographical data) for each member of the board of directors and senior management.

    (f) description of the business of the applicant.

    6. Provide an organization chart for the applicant and any top tier parent company that owns or controls the applicant showing all affiliates and the place where each company is organized.

    7. Provide background and financial information on shareholders directly or indirectly owning or controlling 10% or more of the capital stock of the applicant.

    Part B. Financial Information
    1. Provide the following financial statements:

    (a) (a) a consolidated statement of the applicant's financial condition as of a date within 90 days prior to the date of application, certified by the applicant's chief executive or financial officer, and prepared in accordance with the instructions attached hereto as Annex B;

    (b) audited consolidated financial statements, including statements of income and expense, for the applicant's latest three fiscal years or for the period that applicant has been in business if less than three years, certified by the applicant's chief executive or financial officer, with amounts to be shown in the applicant's local currency and the United States dollar equivalent;

    (c) detailed calculation of applicant's risk-based capital ratio using the guidelines of the Bank for International Settlements as of the statement date in subparagraph (a);

    (d) an English language copy of the applicant's latest annual report; and

    (e)indicate whether financial statements and reports were prepared in accordance with international accounting standards. Explain any variances from international accounting standards.

    2. Provide an analysis of loans, including, but not limited to information on delinquencies, nonaccrual loans, assets acquired in satisfaction of debts previously contracted, and loans with reduced interest charges. Provide summary totals of loans in each delinquency or nonaccrual category along with a detailed definition of each category. Also indicate the amounts of provisions or reserves for delinquent or nonaccrual loans.

    3. Provide an analysis of the extent of country risk exposure of the applicant. This exposure includes loans, advances, placements, deposits, off balance sheet items, etc. Report in currencies of exposure and US Dollar equivalents. Recap by country.

    4.List at least fifteen (15) of the major United States and other correspondent bank relationships of the applicant. Include United States and other banks which have extended any lines of credit to the applicant and the amount of such lines. Please provide a complete address and contact person for each such bank.

     

    Part C. Description of the Applicant's Home Country

    1. Provide a summary profile of the applicant's home country, including a description of:

    (a) political and economic structure - Include latest available data on population, GNP, inflation, employment, country debts, and political and economic stability;

    (b) economic ties with Export-Import Bank, International Monetary Fund, World Bank and other similar organizations;

    (c) foreign trade, including balance of payments with the United States and other countries; and

    (d) foreign exchange and money transfer restrictions, if any.

     

    2. Describe the bank regulatory system in the home country of the applicant and, if different, any top tier foreign banking corporation that owns or controls the applicant, addressing in each case:

    (a) the extent to which the foreign banking corporation is subject to comprehensive supervision or regulation on a consolidated basis by its home country authorities, including whether each foreign banking corporation is supervised or regulated in such a manner that its home country supervisor receives sufficient information on the worldwide operations of the foreign banking corporation (including the relationships of the foreign banking corporation to any affiliate) to assess the foreign banking corporation's overall financial condition and compliance with law and regulation;

    (b) the powers and functions of the home country authorities;

    (c) the frequency and scope of supervisory examinations of banking institutions by the home country authorities, reporting requirements, regulatory limits and standards, and other information relevant to home country supervision;

    (d) the function of the Central Bank and its relationship to private banking institutions in the home country;

    (e) the deposit insurance system, if any, in the home country;

    (f) the extent to which banking institutions from other countries are permitted to conduct business in the home country; and

    (g) complete address, including contact person, of regulatory authorities in the home country and in countries where applicant has a presence.

    Part D. Activities of Representative Office

    1.Describe the types of business to be conducted, and, if applicable, the types of business to be solicited at the proposed representative office.

    2. Describe the management and staffing of the office and the manner in which the office will be supervised by the applicant, including the number of persons to be employed, their capacities and names and brief biographies of key personnel.

    Part E. Public Convenience and Advantage

    Provide a statement containing factual data to demonstrate that the public convenience and advantage will be promoted by approval of the application, including at a minimum:

    1. rationale for wishing to establish a representative office New York State; and

    2. description of the manner in which New York State and the general public will be better served as a result of the establishment of the proposed office;

    Part F. Exhibits
    The following documents shall be submitted as exhibits to Form FB-102:

    1. A duly executed and acknowledged application certificate in the form attached hereto as Annex C.

    2. A certified copy of resolutions of applicant's board of directors either sworn to before a United States consular official or accompanied by an apostille as provided in Supervisory Procedure G7 (copy attached hereto as Annex D) of this title:

    (a) authorizing the filing of the application and designating the officer who is to sign the application;

    (b) designating the person or persons who is/are to be in charge of the business and affairs of the representative office or who shall be authorized to appoint such person or persons;

    (c) authorizing the appointment of the Superintendent as true and lawful attorney for service of process; and

    (d) authorizing the designation of the person to whom process may be forwarded by the Superintendent. ( It is recommended that this person be the designated representative and his or her successors.)

    3. A duly executed and acknowledged instrument appointing the Superintendent the applicant's true and lawful attorney for the service of process in the form attached hereto as Annex E.

    4. A duly executed and acknowledged certificate of designation, specifying the name and address of the person to whom process may be forwarded by the Superintendent in the form attached hereto as Annex F. ( It is recommended that this person be the designated representative and his or her successors.)

    5. An affidavit of the proposed representative(s) describing any legal proceedings against him or her in the form attached hereto as Annex G.

    6. Two duly authenticated copies of applicant's charter and by-laws or the equivalent thereof.

    7. An opinion of a member of the Bar of the State of New York stating that the activities of the proposed representative office are in compliance with section 221-a (3) of the Banking Law and Supervisory Policy FB2.

    8. An opinion of a member of the bar of the applicant's home country that:

    (a) applicant's charter authorizes it to conduct the activities permitted to the proposed representative office; and

    (b) the application complies with the laws of the applicant's home country.

    9. A certificate signed by a senior executive officer of the applicant certifying that the applicant is conducting its business as authorized by its charter and bylaws and in compliance with the laws of its home country.

    10. A statement from the home country authorities that:

    (a) such authorities do not object to the establishment of the proposed representative office; and

    (b) the applicant is duly organized and licensed to conduct a general banking business and is in good standing.

    11. A statement from the applicant providing the Superintendent with adequate assurances that information will be made available to the Superintendent on the operations or activities of the applicant and any of its affiliates 5 that the Superintendent deems necessary to determine and enforce compliance with applicable New York State laws and regulations.

    12. A duly executed and acknowledged agreement pursuant to Section 9(b) of the International Banking Act of 1978 attached hereto as Annex H.

    13. A certificate of compliance with Section 296-a of the Executive Law of the State of New York attached hereto as Annex I.

    14. A taxpayer identification form attached hereto as Annex J.

    _______________________________

    1 "Affiliate" means any company that controls, is controlled by or is under common control with the applicant. "Control" means directly or indirectly owning, controlling or holding with power to vote 25% or more of any class of voting stock, or the ability in any manner to elect a majority of the directors, of a company.

    2 "Affiliate" and "Control" shall each have the meaning set forth in Part A.5(d).

    3 "Control" shall have the meaning set forth in Part A.5(d).

    4 "Affiliate" shall have the meaning set forth in Part A.5(d).

    5 "Affiliate" shall have the meaning set forth in Part A.5(d).