Exhibit 10.12
ATTORNEY GENERAL OF THE STATE OF NEW YORK
CRIME PROCEEDS STRIKE FORCE
.............................................................x
IN THE MATTER OF
COMMERCIAL BANK OF NEW YORK
.............................................................x
ASSURANCE OF DISCONTINUANCE
PURSUANT TO EXECUTIVE LAW
SECTION 63, SUBDIVISION 15
Pursuant to Sections ss.63(8) and (12) of the Executive Law of the
State of New York, and Executive Order No. 130 dated December 4, 1989
establishing the New York State Crime Proceeds Strike Force, Eliot Spitzer,
Attorney General of the State of New York, has made an inquiry into the
laundering of the proceeds of narcotics transactions through several financial
institutions doing business in the State of New York, including Commercial Bank
of New York. Based upon that inquiry, the Attorney General makes the following
findings:
FINDINGS
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1. From 1997 through May of 2001, individuals working at the
direction of narcotics traffickers deposited proceeds of narcotics transactions
into certain international private banking accounts at Commercial Bank of New
York.
2. A thorough investigation of the policies, procedures and
practices of Commercial Bank of New York (hereinafter, "CBNY") revealed
violations of state
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and federal laws and regulations. These laws and regulations were designed to
ensure CBNY's proper screening of new accounts; to require CBNY to know its
customers; and to document such knowledge with records that establish the
customer's identity, sources of funds, net worth and expected or anticipated
type and level of account activity. These laws and regulations were further
designed to ensure CBNY's ability to detect suspicious or unusual customer
activity and provide for the reporting of such activities to the appropriate
state and federal authorities.
3. In 2001, CBNY began the operation of its wholly owned subsidiary,
CBNY Investment Services Corp.
AGREEMENT
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IT IS HEREBY UNDERSTOOD AND AGREED that Commercial Bank of New York and
CBNY Investment Services Corp. are willing to enter into this Assurance of
Discontinuance without admitting the Attorney General's findings or to any
violation of law or regulation, and that the Attorney General is willing to
accept this Assurance of Discontinuance pursuant to Executive Law ss. 63(15) in
lieu of commencing a civil or criminal action or proceeding.
I.
PARTIES SUBJECT TO ORDER
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IT IS FURTHER UNDERSTOOD AND AGREED by and between Commercial Bank of
New York, CBNY Investment Services Corp. and the Attorney General (hereinafter
"the parties") that this Assurance of Discontinuance (hereinafter
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"Assurance") shall apply to Commercial Bank of New York and CBNY Investment
Services Corp., whether acting through their principals, directors, officers,
shareholders, employees, representatives, agents, assigns, successors, or other
business entities, whose acts, practices or policies are directed, formulated or
controlled by Commercial Bank of New York and CBNY Investment Services Corp.
IT IS FURTHER UNDERSTOOD AND AGREED that nothing contained herein shall
be construed as relieving Commercial Bank of New York and CBNY Investment
Services Corp. of the obligation to comply with all applicable state and federal
laws, regulations or rules, nor shall any of the provisions of this Assurance be
deemed permission to engage in any act or practice prohibited by such law,
regulation or rule.
IT IS FURTHER UNDERSTOOD AND AGREED that in the event that Commercial
Bank of New York, CBNY Investment Services Corp. or their affiliates, successors
and assigns, conclude, based on changed circumstances, that the terms of this
Assurance are unfairly restrictive on their business practices, then Commercial
Bank of New York, CBNY Investment Services Corp. or their affiliates, successors
and assigns may request that the Attorney General modify the terms of this
assurance. The Attorney General shall make a good faith evaluation of the then
existing circumstances, and after collecting information the Attorney General
deems necessary, make a prompt decision, but in no event more than ninety (90)
days from Commercial Bank of New York's, CBNY Investment Services Corp.'s or
their affiliates', successors' and assigns' request for same, as to whether to
modify this
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Assurance. The decision whether to modify this Assurance shall rest within the
sole and unreviewable discretion of the Attorney General.
II.
COMPLIANCE
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IT IS FURTHER UNDERSTOOD AND AGREED that within forty-five (45) days
after the execution of this Assurance, and thereafter, CBNY Investment Services
Corp. shall file Suspicious Activity Reports to the extent that banks are
currently required to do so pursuant to the Bank Secrecy Act.
IT IS FURTHER UNDERSTOOD AND AGREED that within thirty (30) days after
the execution of this Assurance, CBNY Investment Services Corp. shall employ an
independent consultant ("Independent Consultant"), knowledgeable in all aspects
of broker-dealer operations and acceptable to the staff of the Attorney General.
1. The Independent Consultant shall:
(a) conduct a review of CBNY Investment Services Corp. and make
findings regarding CBNY Investment Services Corp.'s internal controls, policies,
practices, and procedures reasonably designed to detect and prevent the types of
violations described in this Assurance;
(b) conduct a review of any internal controls, policies, practices and
procedures that CBNY Investment Services Corp. has adopted and implemented
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since the activities described in this Assurance, to determine whether and to
what extent there is a need for additional or amended policies and procedures
designed reasonably to detect and prevent, insofar as practicable such
violations;
(c) make findings regarding any additional internal controls, policies,
or procedures which the Independent Consultant believes are necessary to provide
reasonable assurance that CBNY Investment Services Corp. can detect and prevent
the types of violations described in this Assurance; and
(d) if requested to do so by the staff of the Attorney General,
communicate directly with the staff.
2. CBNY Investment Services Corp. shall promptly provide the
Independent Consultant with any and all requested documents and other
information pertaining to CBNY Investment Services Corp.'s brokerage operations,
and permit the Independent Consultant to meet with any officer, agent, or
employee of CBNY Investment Services Corp.
3. No later than three months from the date that CBNY Investment
Services Corp. employs the Independent Consultant, the Independent Consultant
will submit, in writing, to CBNY Investment Services Corp. and the Attorney
General his or her report detailing his or her findings regarding CBNY
Investment Services Corp.'s internal controls, policies, practices and
procedures and his or her recommendations, if any, for revised or additional
measures reasonably designed to
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detect and prevent the types of violations described in this Assurance. Within
30 days, thereafter, CBNY Investment Services Corp. shall submit to the Attorney
General for approval the report of the Independent Consultant together with any
modifications to the procedures that CBNY Investment Services Corp. believes
appropriate, and the reasons therefore. Upon review of the Independent
Consultant's report, the Attorney General may impose additional measures
reasonably designed to detect and prevent the types of violations described in
this assurance, which measures shall be deemed to be a part of the Independent
Consultant's report, but before making a determination that such additional
measures may be necessary, the Attorney General will provide reasonable notice
to CBNY Investment Services Corp. and the Independent Consultant and an
opportunity to be heard.
4. Upon good cause being shown, the staff of the Attorney General may
grant the Independent Consultant such additional time as the staff deems
necessary to submit his or her report regarding CBNY Investment Services Corp.'s
internal controls, policies, practices, and procedures, and his or her
recommendations, if any, for revised or additional measures reasonably designed
to detect and prevent the types of violations described in this Assurance.
5. Within 30 days after the date of the issuance of the Independent
Consultant's report, CBNY Investment Services Corp. shall remedy any
deficiencies in its internal controls, policies, practices, or procedures
identified by the Independent Consultant and adopt, implement, and maintain any
revised or additional mea-
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sures recommended by the Independent Consultant, or alternatives proposed in
writing by CBNY Investment Services Corp. and accepted in writing by the staff
of Attorney General. Upon written request and good cause being shown, the staff
of the Attorney General or the Independent Consultant may grant CBNY Investment
Services Corp. such additional time as the staff or the Independent Consultant
deems necessary to remedy such deficiencies or adopt such measures or
alternatives.
6. No later than 60 days from the date the Attorney General has
approved the Independent Consultant's report, together with any modification
proposed by CBNY Investment Services Corp., CBNY Investment Services Corp.,
through an officer, shall file an affidavit with the staff of the Attorney
General stating that CBNY Investment Services Corp. has remedied any
deficiencies in its internal controls, policies, practices, and procedures
identified by the Independent Consultant (stating the means by which such remedy
has been accomplished), and stating further that CBNY Investment Services Corp.
has adopted, implemented, and will maintain any revised or additional internal
controls, policies, practices, or procedures recommended in the Independent
Consultant's report, or the alternatives proposed in writing by CBNY Investment
Services Corp. and accepted in writing by the Independent Consultant or the
staff of the Attorney General. Upon written request and good cause being shown,
the staff of the Attorney General may grant CBNY Investment Services Corp. such
additional time as the staff deems necessary to submit an affidavit.
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7. The Independent Consultant shall review CBNY Investment Services
Corp.'s implementation of the recommendations contained in the Independent
Consultant's report, or such alternatives proposed in writing by CBNY Investment
Services Corp. and accepted in writing by the Independent Consultant or the
staff of the Attorney General. The Independent Consultant shall report his or
her findings to the staff of the Attorney General and CBNY Investment Services
Corp. Upon good cause being shown, the staff of the attorney General may grant
the Independent Consultant such additional time as the staff deems necessary to
submit his or her report.
III.
ENFORCEMENT
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IT IS FURTHER UNDERSTOOD AND AGREED that: (a) a violation of the terms
of this Assurance by Commercial Bank of New York shall constitute prima facie
proof of violation of the applicable law in any civil action or proceeding
thereafter commenced against Commercial Bank of New York by the Attorney
General, AND (b) a violation of the terms of this Assurance by CBNY Investment
Services Corp. shall constitute prima facie proof of violation of the applicable
law in any civil action or proceeding thereafter commenced against CBNY
Investment Services Corp. by the Attorney General.
IV.
CHANGE OR AMENDMENT TO EXISTING LAW
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IT IS FURTHER UNDERSTOOD AND AGREED that if any of the laws applicable
to the subject matter of this Assurance changes, Commercial Bank of New York and
CBNY Investment Services Corp. may request a modification of the Assurance, and
the Attorney General shall, in good faith, consider modifying the Assurance as
appropriate.
V.
NON-APPROVAL OF COMMERCIAL BANK OF NEW YORK'S AND CBNY INVESTMENT
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SERVICES CORP.'S BUSINESS PRACTICES
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IT IS FURTHER UNDERSTOOD AND AGREED that the acceptance of this
Assurance by the Attorney General shall not be deemed approval by the Attorney
General of any of Commercial Bank of New York's and CBNY Investment Services
Corp.'s business practices, and Commercial Bank of New York and CBNY Investment
Services Corp. shall make no representation to the contrary.
VI.
COSTS
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IT IS FURTHER UNDERSTOOD AND AGREED that Commercial Bank of New York
shall pay to the Attorney General costs of the investigation in the amount of
seven hundred fifty thousand dollars ($750,000.00), at the execution of this
Assurance.
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WHEREFORE, the following signatures are affixed hereto this 9th day of
October, 2001.
ELIOT SPITZER Commercial Bank of New York
Attorney General of the State By:
of New York /s/ Jacob Berman
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Jacob Berman
President
By: Witness:
/s/ Janet Cohn /s/ David J. Minder
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Chief, Criminal Prosecutions Bureau
Criminal Division /s/ David M. Zornow
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Attorney for Commercial Bank
of New York
/s/ Kevin J. Suttlehan
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Kevin J. Suttlehan CBNY Investment Services Corp.
Assistant Attorney General By:
Director, Crime Proceeds Strike Force /s/ Jose Aparecido Paulucci
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President
Witness: /s/ David M. Zornow
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s/ David J. Minder
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Attorney for CBNY Investment
Services Corp.
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