Cr. No. 12-763 HSBC BANK USA, N.A. And .

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Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 1 of 34 PageID #: 20UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK- - - - - - - - - - - - --XUNITED STATES OF AMERICA-against-Cr. No. 12-763HSBC BANK USA, N.A. andHSBC HOLDINGS PLC,Defendants.- - - - - - - - - - - - - - - -XDEFERRED PROSECUTION AGREEMENTDefendant HSBC Bank USA, N.A., a federally chartered bankinginstitution and subsidiary of HSBC North America Holdings, Inc.,and defendant HSBC Hol dings plc, a financial institution holdingcompany organized under the laws of England and Wales (collectively," the HSBC Parties"), by their undersigned representatives, pursuantto authority granted by the HSBC Parties' Boards of Directors, andthe United States Department of Justice, Criminal Division, AssetForfeiture and Money Laundering Section, the United StatesAttorney's Office for the Eastern District of New York, and theUni ted States Attorney ' s Office for the Northern District of WestVirginia (collectively, the "Department") , enter into this deferredprosecution agreement (the "Agreement") .of this Agreement are as fol l ows:1The terms and conditions

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 2 of 34 PageID #: 21Crimi nal Information and Acceptance of Responsibility1.The HSBC Parties acknowledge and agree that theDepartment will file the attached four-count criminal Informationin the United St ates District Court for the Eastern Di strict ofNew York ("the Court") charging the HSBC Parties with (a) wilfullyfailing to maintain an effective anti-money laundering program,in violation of Title 31, United States Code, Section 5318(h) andregulations issued thereunder; (b) wilfully failing to conduct andmaintain due diligence on correspondent bank accounts held onbehalf of foreign persons, in violation of Title 31, United StatesCode, Section S31B(i) and regulations issued thereunder ; (c)wilfully violating and attempting to violate the Trading wi th theEnemy Act, Title so United States Code Appendix Sections 3, 5, 16,and regulations issued thereunder; and (d) wilfully violating andattempting to violate the International Emergency Economic PowersAct, Title so United States Code Sections 1702 and 1705, andregulations issued thereunder . In so doing, the HSBC Parties: (a)knowingly waive their right to indictment on this charge, as wellas all rights to a speedy trial pursuant to the Sixth Amendmentto the United States Constitution, Title 18, United States Code,Section 3161 , and Federal Rule of Criminal Procedure 48(b); and(b) knowingly waive for purposes of this Agreement any objection2

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 3 of 34 PageID #: 22with respect to venue and consent to the filing of the Information,as provided under the terms of this Agreement.2.The HSBC Parties admit, accept and acknowledge that theyare responsible for the acts of their officers, directors,employees, and agents as charged in the Information , and as setforth in the Statement of Facts attached hereto as Attachment Aand incorporated by reference into this Agreement, and that theallegations described in the Information and the facts describedin Attachment A are true and accurate . Should the Department pursuethe prosecution that is deferred by this Agreement, the HSBCParties agree that they will neither contest the admissibility ofnor contradict the Statement of Facts in any such proceeding,including any guilty plea or sentencing proceeding.Neither thisAgreement nor the criminal Information is a final adjudication ofthe matters addressed in such documents.Term of the Agreement3.This Agreement is effective for a period beginning onthe date on which the Information is filed and ending five (5) yearsfrom that date (the "Term") . However, the HSBC Parties agree that,in the event the Department determines, in its sole discretion,that the HSBC Parties have knowingly violated any provision of thisAgreement, an extension or extensions of the Term ·of the Agreementmay be imposed by the Department, in its sole discretion, for up3

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 4 of 34 PageID #: 23to a total additional period of one year, without prejudice to theDepartment's right to proceed as provided in Paragraphs 16 through19 below. Any extension of the Agreement extends all terms of thisAgreement for an equivalent period. Conversely, in the event theDepartment finds , in its sole discretion, that the provisions ofthis Agreement have been satisfied, the Term of the Agreement maybe terminated early.Relevant Considerations4.The Department enters into this Agreement based on theindividual facts and circumstances presented by this case.Among the facts considered were the following:(a) the HSBCParties' willingness to acknowledge and accept responsibility forthe actions of their officers, directors, employees, and agentsas charged in the Information and as set forth in the Statementof Facts; (b) the HSBC Parties' extensive remedial actions takento date , which are described in the Statement of Facts andParagraph 5 below; (c) the HSBC Parties' agreement to continueto enhance their anti-money laundering programs;(d) the HSBCParties' agreement to continue to cooperate with the Departmentin any ongoing investigation of the conduct of the HSBC Partiesand their current or former officers, directors , employees,agents and consultants, as provided in Paragraph 6 below; (e) theHSBC Parties' willingness to settle any and all civil and criminal4

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 5 of 34 PageID #: 24claims currently held by the Department for any act within thescope of the Statement of Facts; and (f) the HSBC Parties'cooperation with the Department, including conducting multipleextensive internal investigations, voluntarily making U.S. andforeign employees available for interviews, and collecting,analyzing, and organizing voluminous evidence and information forthe Department.5.The HSBC Parties have taken, will take, and/or shal lcontinue to adhere to, the following remedial measures:a. HSBC North America has a new leadership team, includinga new Chief Executive Officer, General Counsel, ChiefCompliance Officer, AML Director, Deputy ChiefCompliance Officer and Deputy Director of its GlobalSanctions program .b. As a result of its AML violations and programdeficiencies, HSBC North America and HSBC Bank USA"clawed back" deferred compensation (bonuses) for anumber of their most senior AML and complianceof.ficers, to include the Chief Compliance Officer, AMLDirector and Chief Executive Officer .c . In 2011, HSBC Bank USA spent 244 million on AML,approximately nine times more than what it spent in2009 .d. In particular, HSBC Bank USA has increased its AMLstaffing from 92 full time employees and 25 consultantsas of January 2010 to approximately 880 full t imeemployees and 267 consultants as of May 2012 .e . HSBC Bank USA has reorganized its AML department tostrengthen its reporting lines and elevate its status5

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 6 of 34 PageID #: 25within the institution as a whole by (i) separating theLegal and Compliance departments ; (ii) requiring thatthe AML Director report directly to the ChiefCompliance Officer; and (iii) providing that the AMLDirector regularly report directly to the Board andsenior management about HSBC Bank USA's Bank SecrecyAct ( "BSA") and anti-money laundering ( "AML") program .f. HSBC Bank USA has revamped its KYC prog17am and now treatsHSBC Group Affiliates as third parties that are subjectto the same due diligence as all other customers.g. HSBC Bank USA has implemented a new customerrisk- rating methodol ogy based on a multifacetedapproach that weighs the following factors : (1) thecountry where the customer is located, (2) the productsand services utilized by the customer , (3) thecustomer's legal entity structure, and (4) the customerand business type.exitedh. HSBCBankUSA hasrelationships for risk reasons.109correspondenti. HSBC Bank USA has a new automated monitoring system.The new system monitors every wire transaction thatmoves through HSBC Bank USA. The system also tracksthe originator, sender and beneficiary of a wiretransfer, allowing HSBC Bank USA to look at itscustomer's customer .j. HSBCBank USA has made significant progress inremediating all customer KYC files in order to ensurethey adhere to the new AML policies discussed above andplans to have completed remediation of 155 , 554customers by December 2012.k . HSBC Bank USA has exited the Banknotes business.1. HSBC Bank USA has spent over 290 million on remedialmeasures.6

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 7 of 34 PageID #: 26m. HSBC Holdings also has a new leadership team, includinga new CEO , Chairman, Chief Legal Officer and Head ofGlobal Standards Assurance.n. HSBC Group has simplified its control structure so thatthe entire organization is aligned around 4 globalbusinesses, 5 regional geographies, and 10 globalfunctions . This allows HSBC Group to better manage itsbusiness and communication, and better understand andaddress risks worldwide .o. Since January 2011, HSBC Group has begun to apply a moreconsistent global risk appetite and a·s a result has sold42 businesses and withdrawn from 9 countries .p. HSBC Group has undertaken to implement single globalstandards shaped by the highest or most effectiveanti - money laundering standards available in anylocation where the HSBC Group operates. This new policywill require that all HSBC Group Affiliates will, ata minimum , adhere to U.S . anti-money launderingstandards.q. HSBC Group has elevated the Head of HSBC GroupCompliance position to a Group General Manager, whichis one of the 50 most senior employees at HSBC globally.HSBC Group has also replaced the individual serving asHead of HSBC Group Compliance.r. The Head of HSBC Group Compliance has been given di r ectoversight over every compliance officer globally, sothat both accountability and escalation now flowdirectly to and from HSBC Group Compliance.s. Eighteen of the top twenty-one most senior officers atHSBC Group are new in post since the beginning of 2011.t. Material or systemic AML control weaknesses at anyaffiliate that are reported by the Regional and GlobalBusiness Compliance heads are now shared with all other7

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 8 of 34 PageID #: 27Regional and Global Business Compliancefacili tating horizontal information sharing.headsu. The senior leadership team that attends HSBC GroupManagement Board meeti ngs is collectively andindividually responsible for reviewing all of theinformation presented at the meeting , as well as allwritten documentation provided in advance of themeeting, and determining whether it affects theirrespective entity or region.In addition, if anexecutive believes that something occurring within hisor her area of responsibility affects another businessor affiliate within HSBC Group, it is that executive ' sresponsibility to seek out the executives from thatbusiness or affiliate and work to address the issue.v. HSBC Group has restructured its senior executive bonussystem so that the extent to which the senior executivemeets compliance standards and values has a significantimpact on the amount of the senior executive's bonus,and failure to meet those complia ce standards andvalues could result in the voiding of the seniorexecutive's enti re year-end bonus.w. HSBC Group has commenced a review of all customer KYCfiles across the entire Group. The first phase of thisremediation will cost an estimated 700 million tocomplete over five years.x. HSBC Group will defer a portion of the bonuscompensation for its most senior officers, namely itsGroup General Managers and Group Managing Directors,during the pendency of the deferred prosecutionagreement, subject to EU and UK legal and regulatoryrequirements .y. HSBC Group has adopted a set of guidelines to be takeninto account when considering whether HSBC Group shoulddo business in countries posing a particularly highcorruption/rule of law risk as well as limiting8

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 9 of 34 PageID #: 28business i n those countries that pose a high financialcrime risk.z . Under HSBC Group's new global sanctions policy, HSBCGroup will be utilizing key Office of Foreign AssetsControl ("OFAC") and other sanctions lists to conductscreening in all jurisdictions, in a l l currencies.Upon the application of the HSBC Partie.s ,the CorporateCompliance Monitor (discussed infra at paragraphs 9 - 13) may modify,adjust, or discontinue any remedial or compliance measure listedin this Agreement if the Monitor finds that continuation of themeasure is impractical, inconsistent with any recommendation of theMonitor, or inadvisable for any other reason, subject to Departmentapproval .Cooperati on6.The HSBC Parties shall continue to cooperate fully withthe Department in any and all investigations, subject to applicablelaws and regulations and the attorney- client and attorney workproduct privileges. At the request of the Depart ment, the HSBCParties shall also cooperate fully with other domestic or foreignlaw enforcement authorities and agencies in any investigation ofthe HSBC Parties or any of their present and fo r mer officers,directors, employees, agents and consultants, or any other party.The HSBC Parties also agree that t hey shall:9

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 10 of 34 PageID #: 29a. Use their good faith efforts to make available, at theircost, the HSBC Parties' current and former officers,directors, employees, agents and onsultants, whenrequested by the Department, to provide additionalinformation and materials concerning any and allinvestigation; to testify, including providing sworntestimony before a grand jury or in a judicialproceeding; and to be interviewed by law enforcementauthorities. Cooperation under this Paragraph shallinclude identification of witnes es who, to theknowledge of the HSBC Parties, may have materialinformation regarding these matters;b. s, or transaction data in the HSBC Parties'possession, custody, or control, or in the possessioncustody or control of any affiliate, . wherever located,requested by the Department in connection with theinvestigation or prosecution of any current or tants;c. Continue to abide by the terms of the "Consent Ceaseand Desist Order" entered with the Board of Governorsof the Federal Reserve System , dated October 4, 2010;d. Continue to abide by the terms of the "Consent Ceaseand Desist Order" entered with the Office of theComptroller of the Currency ( "OCC") , dated October 6,2010;e. Abide by the terms of the "Consent· Cease and DesistOrder" entered with the Board of Governors of theFederal Reserve System, dated December 11, 2012;f. Continue to apply the OFAC sanctions list to the sameextent as any United Nations or European Unionsanctions or freeze lists to United States Dollar( "USD" ) transactions, the acceptance of customers, andall USD cross-border Society for Worldwide Interbank10

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 11 of 34 PageID #: 30Financial Telecommunications ("SWIFT") incoming andoutgoing messages involving payment instructions orelectronic transfer of funds;g . Except as otherwise permitted by United States law, notknowingly undertake any USD cross - border electronicfunds transfer or any other USD transaction for , onbehalf of, or in relation to any person or entityresident or operating in, or the governments of, Iran,North Korea, Sudan (except for those regions andactivities exempted from the United States embargo byExecutive Order No. 13412), Syria qr Cuba;h. Implement compliance procedures and training designedto ensure that the HSBC Parties' compliance officer incharge of sanctions is made aware in a timely mannerof any known requests or attempts by any entity(including , but not limited to , the HSBC Parties'customers,financialinstitutions,companies ,organizations, groups, or persons) to withhold or alterits name or other identifying information where therequest or attempt appearsto be related tocircumventing or evading U.S. sanctions laws. The HSBCParties ' Head of Compliance, or his or her designee,shall report to the Department, in a timely manner, thename and contact information, if available to the HSBCParties, of any entity that makes such a request;i. Maintain the electronic database of SWIFT MessageTransfer payment messages and all documents andmaterials produced by the HSBC Parties to theDepartment as part of this investigation relating toUSD payments processed during the period from 2001through 2007 in electronic format for a period of fiveyears from the date of this Agreement;j . Notify the . Department of any criminal,civil,administrative or regulatory investigation or actionof the Bank or its current directors, officers,employees, consultants, representatives, and agents11

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 12 of 34 PageID #: 31related to the HSBC Parties ' compliance with U.S .sanctions laws, t he HSBC Parties' i nvol vement in moneylaundering or the HSBC Parties ' anti -money launderingprogram ;1k . Provide information, materialsand testimony asnecessary or requested to identify o.r to establish theoriginal location , authentici ty , or other basis fora dmission into evidence of documents or physicalevid ence in any criminal or judicial proceeding; andI1. Develop and impl ement polici es and procedures formergers and acquisitions requiring that the HSBCParties conduct appropriate risk-based due diligenceon potential new business entities,includingappropriate BSA and anti-money laundering duediligence by legal / audit / and compliance personnel .If the HSBC Parties discover inadequate anti-moneylaundering controls as part of their due diligence ofnewly acquired entities or enti ties merged with theHSBC Parties, it shall report such conduct to theDepartment as required in Attachment B to thisAgreement.Forfeiture Amount7.As a result of the HSBC Parties/ conduct / including theconduct set for th in the Statement of Facts, the parties agreethe Department could institute a civi l and/or criminal forfeitureaction against certain funds held by the HSBC Parties and thatsuch funds wou l d be forfeitable pursuant to Title 18, UnitedStates Code1Sections 981 and 982. The HSBC Parties herebyacknowledge that at least 881 000,000 was involved in1transactions , in violation of Title 18 , Uni ted States Code,12

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 13 of 34 PageID #: 32Sections 1956 and 1957; and that at least 375 , 000,000 wasinvolved in transactions in violation of Title 50, United StatesCode, Appendix, Sections 3, 5 and 16 and the regulations issuedthereunder, or Title 50 , United States Code , Section 17 05 and theregulations issued thereunder . In lieu of a criminal prosecutionand related forfeiture, the HSBC Parties hereby agree to pay tothe United States the sum of 1 , 256,000,000 (the "ForfeitureAmount").The HSBC Parties hereby agree the Forfeiture Amountshall be considered substitute res for the purpose of forfeitureto the United States pursuant to Title 18, United States Code,Sections 981 and 982, and the HSBC Parties rel ease any and allclaims they may have to such funds. The HSBC Parties shall paythe Forfeiture Amount plus any associated transfer fees withinfive (5) bus i ness days of the date on which this Agreement issigned, pursuant to payment instructions as directed by theDepartment in its sole d i scretion .Conditional Release from Liability8.In return for the full and truthful cooperation of theHSBC Parties , and their comp l iance with the other terms andconditions of this Agreement, the Department agrees, subject toParagraphs 16 through 19 below , not to use any information relatedto the conduct described in the a t tached Statement of Facts againstt he HSBC Parties or any of their corporate parents, subsidiaries,13

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 14 of 34 PageID #: 33affiliates, predecessors, successors or assigns, in any criminalor civil case, except: (a) in a prosecution for perjury orobstruction of justice; or (b) in a prosecution for making a falsestatement. In addition, the Department agrees, except as providedherein, that it will not bring any criminal case against the HSBCParties or any of their corporate parents, subsidiaries,affiliates, predecessors, successors or assigns, related to theconduct described in the attached Statement of Facts and theInformation.a. This Paragraph does not provide protection againstprosecution for conduct not disclosed by the HSBCParties to the Department prior to the date on whichthis Agreement was signed, nor does it provideprotection against prosecution for any futureinvolvement by the HSBC Parties in criminal activity,including any future involvement in money launderingor any future failure to maintain an effectiveanti-money laundering program.b. In addition, this Paragraph does not provide anyprotection against prosecution of any present or formerofficers, directors, employees, agents and consultantsof the HSBC Parties for any violations committed bythem, including any conduct descr ibed in the Statementof Facts or any conduct disclosed to"the Department bythe HSBC Parties.c. Finally, other than transactions during the period setforth in the Statement of Facts that have already beendisclosed and documented to the United States, thisParagraph does not provide any protection againstprosecution of the HSBC Parties, · or any of theiraffiliates, successors, related companies, employees,14

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 15 of 34 PageID #: 34officers or directors, who knowingly and wilfullytransmit ted or approved the transmission of funds thatwent to or came from persons or entities designated byOFAC at the time of the transaction as SpeciallyDesignated Terrorists , Special l y pesignated GlobalTerrorists, Foreign Terrorist Organizations, andproliferators of Weapons of Mass Destruction (the"Special SON Transactions"), including transactionsdisclosed and documented to the United States thatoccurred after January 1, 2008.Any prosecut i onrelated to the Special SON Transactions may be premisedupon any informati on provided by or on behal f of theHSBC Parti es to the Department or any investigativeagencies, whether prior to or subsequent to thisAgreement , or any leads derived from such information,including the attached Statement of Facts.Corporate Compliance Monitor9.Within sixty (60) calendar days of the filing of theAgreement and the accompanying Information, or promptly after theDepartment ' s selection pursuant to Paragraph 10 below, HSBCHoldings agrees to retain an independent compliance monitor (the"Monitor"). In particular , within thirty (30) calendar days afterthe execution of this Agreement, and after consultation with theDepartment, HSBC Holdings will propose to the Department a poolof three qualified candidates to serve as the Monitor.If theDepartment, in its sole discretion, is not satisfied with thecandidates proposed, the Department reserves the right to seekadditional nominations from HSBC Holdings. The Monitor candidatesshall have, at a minimum, the following qualifications:15

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 16 of 34 PageID #: 35a. demonstrated expertise with respect to the BSA andother applicable U.S. and U.K . anti-money launderinglaws;b. experience designing and/or reviewing corporatecompliance policies, procedures and internal controls ,including BSA and anti -money laundering policies ,procedures and internal controls;c. the ability to access and deploy resources as necessaryto discharge the Monitor ' s duties as described in theAgreement; andd . sufficient independence from HSBC oldings to ensureeffective and impartial performance of the Monitor'sduties as described in the Agreement.10.The Department retains the right , in its sole discretion,to accept or re j ect any Monitor candidate proposed by HSBC Holdings,though HSBC Holdings may express their preference(s ) among thecandidates.In the event the Department rejects all proposedMonitors, HSBC Holdings shall propose another candidate within ten(10) calendar days after receiving notice of the rejection. Thisprocess shall continue until a Monitor acceptable to both partiesis chosen. The Department may also propose the names of qualifiedMonitor candidates for consideration. The term of the monitorship,as set forth in Attachment B, shall commence upon the Department'sacceptance of a Monitor candidate proposed by HSBC Holdings . If theMonitor resigns or is otherwise unabl e to fulfill his or herobligations as set out herein and Attachment B, HSBC Holdings shall16

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 17 of 34 PageID #: 36within sixty (60) calendar days recommend a pool of three qualifiedMonitor candidates from which the Department will choose areplacement.11.The Monitor will be retained by HSBC Holdings for a periodof not less than sixty (60) months from the date the Monitor isselected . The term of the monitorship, including the circumstancesthat may support an extension of the term, as well as the Monitor'spowers, duties, and responsibilities, will be as set forth inAttachment B.12.HSBC Holdings agrees that it will not employ or beaffiliated with the Monitor for a period of not less than oneyear from the date on which the Monitor's term expires.13 . The Monitor's term shall be five (5) years from the dateon which the Monitor is retained by HSBC Holdings, subject toextension or early termination as described in Paragraph 3.Deferred Prosecution14.In consideration of:(a) the past and futurecooperation of the HSBC Parties described in Paragraph 6 above; (b)the HSBC Parties' forfeiture, totaling 1,256,000,000; and (c)the HSBC Parties' implementation and maintenance of remedialmeasures described in the Statement of Facts and Paragraph 5 above,the Department agrees that any prosecution of the HSBC Parties forconduct set forth in the Information or the attached Statement of17

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 18 of 34 PageID #: 37Facts, and for the conduct that the HSBC Parties disclosed to theDepartment prior to the signing of this Agreement, be and herebyis deferred for the Term of this Agreement.15.The Department further agrees that if the HSBC Partiesfully comply with all of their obligations under this Agreement,the Department will not continue the criminal prosecution againstthe HSBC Parties described in Paragraph 1 and, at the conclusionof the Term, this Agreement shall expire. Within thirty {30) daysof the Agreement's expiration, the Department shall seek dismissalwith prejudice of the criminal Information filed against the HSBCParties described in Paragraph 1.Breach of the Agreement16.If, during the Term of this Agreement, the Departmentdetermines, in its sole discretion, that the HSBC Parties have {a )committed any crime under U.S. federal law subsequent to the signingof this Agreement, (b) at any time provided in connection with. thisAgreement deliberately false, incomplete, or misleadinginformation, or (c) otherwise breached the Agreement, the HSBCParties shall thereafter be subject to prosecution for any federa lcriminal violation of which the Department has knowledge, includingthe charges in the Information described in Paragraph 1, which maybe pursued by the Department in the United States District Courtfor the Eastern District of New York or any other appropriate venue.18

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 19 of 34 PageID #: 38Any such prosecution may be premised on information provided by theHSBC Parties. Any such prosecution that is not time-barred by theapplicable statute of limitations on the date of the signing of thisAgreement may be commenced against the HSBC Parties notwithstandingthe expiration of the statute of limitations between the signingof this Agreement and the expiration of the Term plus one year. Thus,by signing this Agreement, the HSBC Parties agree the statute oflimitations with respect to any such prosecution that is nottime-barred on the date of the signing of this Agreement shall betolled for the Term plus one year .17.In the event the Department determines the HSBC Partieshave breached this Agreement , the Department agrees to provide theHSBC Parties with written notice of such breach prior toinstituting any prosecution resulting from such breach.The HSBCParties shall, within thirty (30) days of receipt of such notice,have the opportunity to respond to the Department in writing toexplain the nature and circumstances of such breach, as well asthe actions the HSBC Parties have taken to address and remediatethe situation, which explanation the Department shall consider indetermining whether to institute a prosecution.18.In the event the Department determines the HSBC Partieshave breached this Agreement: (a) all statements made by or onbehalf of the HSBC Parties to the Department or to the Court,19

Case 1:12-cr-00763-ILG Document 3-2 Filed 12/11/12 Page 20 of 34 PageID #: 39including the attached Statement of Facts, and any testimony givenby the HSBC Parties before a grand jury, a court, or any tribunal,whether prior or subsequent to this Agreement , and any leadsderived from such statements or testimony , shall be admissible inevidence in any and all criminal proceedings brought by theDepartment against the HSBC Parties; and (b) the HSBC Parties shallnot assert any claim under the United States Constitution, Rulell(f) of the Federal Rules of Criminal Procedure, Rule 410 of theFederal Rules of Evidence, or any other federal rule th

senior management about HSBC Bank USA's Bank Secrecy Act ( "BSA") and anti-money laundering ( "AML") program. f. HSBC Bank USA has revamped its KYC prog17am and now treats HSBC Group Affiliates as third parties that are subject to the same due diligence as all other customers. g.

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