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Foreign Banking Corporation: Foreign Branch/Agency Application

Please refer to the Department's Application Fee Schedule to determine the proper fee for the application being filed.

The statutory requirements for the licensing of a foreign banking corporation to establish and maintain a branch or agency in New York are specified in Section 200 and 201 of the New York Banking Law. In addition, Section 26 of the statute specifies the criteria for approval of the application in terms of character, responsibility and general fitness of the applicant as well as the promotion of public convenience and advantage. Additional factors considered by the Superintendent in connection with the licensing of branches or agencies may be found in Supervisory Procedure FB 1 (copy enclosed).

The application requirements are set forth in Supervisory Procedure FB 101 and Form FB-101, copies of which are enclosed.

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. Should you care to proceed in this manner, we would be pleased to arrange a mutually convenient time for a meeting.

Please contact our Applications Unit at (212) 709-1540.


APPLICATION FOR FOREIGN BRANCH OR AGENCY

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:

  1. the proposed branch, agency or representative office will promote the public convenience and advantage; and

  2. 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

  1. 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. the 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.

  2. 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 101 -- APPLICATION BY A FOREIGN BANKING CORPORATION FOR A LICENSE TO ESTABLISH A BRANCH OR AGENCY
(Statutory authority: Banking Law § 14(1))

Sec.    
101.1   General information
101.2   Prior consultation
101.3   Information and documents requested
101.4   Conversion of license from agency to branch, or branch to agency
101.5   Additional branches and agencies

NYR - 101.1 General information

A foreign banking corporation seeking a license under Banking Law, Article V, to establish an initial branch or agency in New York State shall submit to the Superintendent an application on Form FB-101 containing the information and documents required by section 101.3 of this Supervisory Procedure, accompanied by a check for [please refer to the Department's Application Fee Schedule] covering the investigation fee.

NYR - 101.2 Prior consultation

Preparation of the application on Form FB-l0l will be facilitated by prior consultation between the applicant and representatives of the Department. Arrangements for such a conference may be made and copies of Form FB-101 may be obtained through the New York State Department of Financial Services, One State Street, New York, New York 10004.

NYR - 101.3 Information and documents requested

A foreign banking corporation seeking a license to establish a branch or agency must submit the following information and documents:

  1. an application certificate in duplicate containing the information required by Banking Law section 201;

  2. the names of and biographical information, including a description of the educational and business background, for the two senior officers who will be in charge of the branch or agency;

  3. a description of the history and background of the foreign banking corporation, including the following:

    1. 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, any of 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;

  4. 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;

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

  6. 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; and

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

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

  7. 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;

  8. an analysis of the extent of country risk exposure of the applicant;

  9. 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;

  10. 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;

  11. a description of the bank regulatory system in the home country of the foreign banking corporation and, if different, any top tier foreign banking corporation that owns or controls the applicant, addressing in each case:
    1. the extent to which each 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;

  12. a statement from the home country authorities that:
    1. such authorities do not object to the establishment of the proposed branch or agency; and

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

  13. a description of the types of business to be conducted and the types of services to be offered at the proposed branch or agency;
  14. estimated start-up costs, projected balance sheets, income statements and contingent liabilities for the proposed branch or agency for the first three years of operations, including assumptions made in formulating projections;
  15. description of management and staffing of office, including number of persons to be employed and in what capacities and names and brief biographies of key personnel;
  16. 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 G7 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 in charge of the business and affairs of the branch or agency 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;
  17. a duly executed instrument appointing the Superintendent the applicant's true and lawful attorney for the service of process;
  18. a certificate of designation, specifying the name and address of the person to whom process may be forwarded by the Superintendent;
  19. an affidavit of the proposed manager and deputy manager describing any legal proceedings against each of them;
  20. two duly authenticated copies of applicant's charter and bylaws or the equivalent thereof;
  21. an opinion of a member of the bar of the applicant's home country that:
    1. applicant's charter authorizes it to carry on the business contemplated by the application; and
    2. the application complies with the laws of the applicant's home country;
  22. 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 the applicant's home country;
  23. 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 branch or agency in New York State;
    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;
    3. description of the manner in which the proposed office will contribute to the promotion of international trade; and
    4. description of the competitive effect of the proposed office on existing banking facilities in New York;
  24. a certificate of the applicant's paid-in capital stock, surplus fund and undivided profits, expressed in each case in the currency of the country of origin and in United States dollars, based on the current conversion rate;
  25. 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
  26. such additional documents or information as the Superintendent may require.

NYR - 101.4 Conversion of license from agency to branch, or branch to agency

When an agency applies to convert to a branch, or when a branch applies to convert to an agency, the information and documentation required for an initial license in paragraphs 101.3 (1), (12), (13), (16), (17), (18), (21), (22), (23) and (26) of this Supervisory Procedure shall be submitted to the department.

101.5 Additional branches and agencies

A foreign banking corporation that has received a license to open and maintain a branch or agency in this State may, unless otherwise advised by the Superintendent, open and occupy an additional branch or agency with 30-days prior notice to the Superintendent. Such notice shall contain the information required under section 101.3 (2), (12) through (19), (23) and (26) of this Supervisory Procedure.

APPLICATION BY A FOREIGN BANKING CORPORATION FOR A LICENSE TO ESTABLISH AND MAINTAIN A BRANCH OR AGENCY IN THE STATE OF NEW YORK

Section 1 -General Information

  1. A foreign banking corporation which seeks a license under Banking Law Article V and Supervisory Procedure FB 101 to establish and maintain a branch or agency in New York State should submit the information and documents required by Section 3 of this Form FB-101 to the Superintendent of Financial Services, accompanied by a check payable to the order of "Superintendent of Financial Services of the State of New York". Please refer to the Department's Application Fee Schedule to determine the proper fee for the application.

  2. A foreign banking corporation seeking to convert a licensed agency to a branch or a branch to an agency under Supervisory Procedure FB101.4 should submit the information and documents required under Parts D.1, E, F.1-4 and 7-9. A foreign banking corporation seeking to notify the Superintendent of its intention to open and occupy an additional branch or agency in this State under Supervisory Procedure FB101.5 should submit the information and documents required under Parts A.4, D, E, F.2-5 and 9.
  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 FB101 is located; and provided further that any information, documents or exhibits not required in the federal application but required in this Form FB-101 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.

  6. You are reminded that this and all applications submitted to the Department 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. All documents submitted in foreign language originals must be accompanied by certified translations into the English language.

  8. 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 101. Any application or notice prepared in accordance with this form should refer to the item numbers listed when supplying the information requested therein.

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

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. Arrangements for such a conference may be made through the, New York State Department of Financial Services, One State Street, New York, NY 10004, telephone no. (212) 709-1540.

Section 3 -Documents/Information required

Part A. Description of the Applicant

  1. Name of applicant.

  2. Principal place of business of applicant.

  3. Proposed branch or agency location.

  4. List the names of and provide biographical information in the form attached as Annex A hereto for the two senior officers who will be in charge of the branch or agency.

  5. Describe the history and background of the applicant, including the following:

    1. brief history of the applicant;

    2. ranking by asset size in the home country;

    3. number of offices in the home country;

    4. corporate 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[1] and any agencies, branches or representative offices of the applicant in the United States and other countries);

    5. 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;

    6. description of the business of the applicant.

  6. Provide a corporate organization chart for the applicant and any top tier parent company that owns or controls the applicant showing all affiliates[2] 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 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;
    • 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;
    • 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);
    • an English language copy of the applicant's latest annual report; and
    • 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 twenty-five (25) 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

    1. political and economic structure - Include latest available data on population, GNP, inflation, employment, country debts, and political and economic stability;

    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 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[3] 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[4] ) 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 by the home country authorities, reporting requirements, regulatory limits and standards, and other information relevant to home country supervision;

    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;

    6. the extent to which banking institutions from other countries are permitted to conduct business in the home country; and

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

Part D. Activities of Branch/Agency

  1. Describe the types of business to be conducted and the types of services to be offered at the proposed branch or agency.

  2. Provide estimated start up costs, projected balance sheets, income statements and contingent liabilities for the proposed branch or agency for the first three years of operations, including assumptions made in formulating projections, and prepared in accordance with the instructions.

  3. 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 branch or agency in New York State;

  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;

  3. description of the manner in which the proposed office will contribute to the promotion of international trade; and

  4. description of the competitive effect of the proposed office on existing banking facilities in New York

Part F. Exhibits

The following documents shall be submitted as exhibits to Form FB-101:

  1. A duly executed and acknowledged application certificate

  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 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 in charge of the business and affairs of the branch or agency 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. ( It is recommended that this person be the designated branch manager 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.

  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.( It is recommended that this person be the designated branch manager and his or her successors.)

  5. An affidavit of the proposed manager and deputy manager describing any legal proceedings against him or her.

  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 applicant's home country that:

    1. applicant's charter authorizes it to carry on the business contemplated by the application; and

    2. the application complies with the laws of the applicant's home country.
  8. 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.
  9. A statement from the home country authorities that:
    1. such authorities do not object to the establishment of the proposed branch/agency; and
    2. the applicant is duly organized and licensed to conduct a general banking business and is in good standing.
  10. A certificate of the applicant's paid-in capital stock, surplus fund and undivided profits, expressed in each case in the currency of the country of origin and in United States dollars, based on the current conversion rate.
  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.
  13. A certificate of compliance with Section 296-a of the Executive Law of the State of New York.
  14. A taxpayer ID form.

Section 4 - Supervisory Procedure

Please also refer to Supervisory Procedure G 108 to determine whether certification of compliance with Section 296-a of the Executive Law is required.


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.

 

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