N.Y. Banking Law § 344: Issuance of license upon acquisition of business of licensed lender

§ 344. Issuance of license upon acquisition of business of licensed

lender. 1. Prior to any acquisition, by merger, consolidation, purchase

of assets or otherwise, except by purchase of stock, of the assets or

business, or a substantial part thereof, of a licensee under this

article, the person desirous of continuing to maintain and operate any

place of business theretofore maintained and operated by such licensee

and each person who controls such person shall file with the

superintendent, for all such places of business, one application, in

such form and containing such information, including the information

required under section three hundred forty-one of this article, as the

superintendent may require. At the time of making such application, the

applicants shall pay to the superintendent an investigation fee, as

prescribed pursuant to section eighteen-a of this chapter if the person

desirous of continuing to maintain and operate such places of business

is already licensed under this article, or, if such person is not so

licensed, an investigation fee as prescribed pursuant to section

eighteen-a of this chapter. If such person is licensed, the

superintendent shall amend the license accordingly within thirty days if

it is found that the acquisition is in accordance with the purposes of

this article. If such person is not licensed, the superintendent shall

determine whether the financial responsibility, experience, character,

and general fitness of the applicants, and of the members thereof if any

applicant be a partnership or association, and of the officers,

directors and controlling stockholders thereof if any applicant be a

corporation, are such as to command the confidence of the community and

to warrant belief that the business will be operated honestly, fairly,

and efficiently within the purpose of this article and the

superintendent shall approve or deny such application within ninety days

of the filing thereof. If the superintendent disapproves such

application, or, if no such application has been made, the license for

each such place of business shall become null and void and the

applicants or licensee, whoever has possession of each such license,

shall forthwith surrender the license theretofore in effect to the

superintendent. If the superintendent approves such application, the

person being acquired shall surrender to the superintendent the license

theretofore in effect for each such place of business and the

superintendent shall issue and transmit one copy of a new license to

maintain and operate each such place of business to the person desirous

of continuing to maintain and operate such place of business and file

another copy in the department.

As used in this subdivision one, (a) the term "person" includes an

individual, partnership, corporation, association or any other

organization and (b) the term "control" means the possession, directly

or indirectly, of the power to direct or cause the direction of the

management and policies of a person, whether by means of the ownership

of the voting stock or equity interests of such person or of one or more

persons controlling such persons, by means of a contractual arrangement,

or otherwise. Control shall be presumed to exist if any person directly

or indirectly owns, controls or holds with the power to vote ten per

centum or more of the voting stock or equity interests of the person

desirous of continuing to maintain and operate a licensee's place of

business or of any entity which directly or indirectly controls such

person. The superintendent may, upon the application of a licensee or

any such person or entity, determine whether or not the ownership,

control or holding of such voting stock or equity interests constitutes

or would constitute control for purposes of this subdivision.

2. The transfer by operation of law to a legal representative, as

hereinafter defined, of the assets or business of a licensee under this

article, or a substantial part thereof, shall not, to the extent

hereinafter provided, be deemed an acquisition within the meaning of

this section. Such legal representative, if duly qualified to act in

this state, may continue to maintain and operate any place of business

theretofore maintained and operated by such licensee, subject to all the

provisions of this chapter including the payment of license fees, for a

period of not more than six months from the date of his qualification as

legal representative and for such additional period of time as the

superintendent may prescribe in writing. During such period, the legal

representative shall be deemed a licensee under this article. The

appointment and qualification of a successor to the legal representative

shall not, without the approval of the superintendent, operate to extend

such period.

Each such legal representative shall promptly following his or her

appointment file with the superintendent a certificate or duly certified

copy of an order of the court to evidence his authority to acquire the

assets of the licensee and to maintain and operate the business thereof.

If a legal representative desires to continue to maintain and operate

any place of business theretofore maintained and operated by the

licensee he or she shall, prior to the expiration of such six month

period or any extension thereof prescribed by the superintendent, file

an application pursuant to this section and comply with all of the

provisions of this chapter. The investigation fee payable upon filing

such application shall be as prescribed pursuant to section eighteen-a

of this chapter.

The term "legal representative," for the purposes of this section,

shall mean one duly appointed by a court of competent jurisdiction as an

executor, administrator, trustee, committee, conservator or receiver,

including one who succeeds a legal representative and one acting in an

ancillary capacity thereto in accordance with the provisions of such

court appointment.

If any provision of this section, or the application of such provision

to any individual, company, corporation or circumstance, shall be held

invalid, the remainder of this section, and the application thereof to

anyone other than the one to which it is held invalid, shall not be

affected thereby.