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[¶16,069A] Docket No. FDIC-95-155a (2-2-96)
In the Matter of
DAIWA BANK TRUST COMPANY
NEW YORK, NEW YORK
(Insured State Nonmember Bank)
AMENDMENT OF
SETTLEMENT AGREEMENT
WHEREAS, The Daiwa Bank, Limited ("Daiwa") and Daiwa Bank Trust Company ("Daiwa Trust") have agreed to transfer certain assets, liabilities and customer relationships to The Sumitomo Bank, Limited ("Sumitomo") and The Sumitomo Bank of New York Trust Company ("Sumitomo Trust") for the purpose of complying with the SETTLEMENT AGREEMENT and the ORDER OF TERMINATION OF INSURED STATUS issued upon consent on November 1, 1995, as well as orders issued by other bank regulatory agencies on the same date;
WHEREAS, Sumitomo and Sumitomo Trust wish to receive those assets, liabilities and customer relationships from Daiwa and Daiwa Trust, on condition that such assets are freely transferrable along with any writings and recordings pertaining thereto;
WHEREAS, the Federal Deposit Insurance Corporation ("FDIC") believes that the SETTLEMENT AGREEMENT requires Daiwa Trust to maintain in the United States writings and recordings pertaining to the assets, liabilities and customer relationships to be transferred; and
WHEREAS, Daiwa and Daiwa Trust acknowledge the interests of the FDIC in having full and continuing access to all of the foregoing writings and recordings.
NOW, THEREFORE, in the interests of facilitating Daiwa Trust's compliance with all of the provisions of the SETTLEMENT AGREEMENT, the parties agree as follows:
(1) This Amendment of SETTLEMENT AGREEMENT supersedes any inconsistent provision of the SETTLEMENT AGREEMENT, to the extent of the inconsistency.
(2) For purposes of this Amendment of SETTLEMENT AGREEMENT:
(a) "Writings" and "recordings" shall have the meaning set forth in Fed.R.Evid. 1001(1).
(b) "Original" shall have the meaning set forth in Fed.R.Evid. 1001(3).
(c) "Duplicate" shall have the meaning set forth in Fed.R.Evid. 1001(4).
(3) Daiwa Trust agrees that it will accept service of any subpoena issued by any court in the United States at the request of any Federal, State or local governmental authority ("Subpoena"), and that it will produce on a timely basis in response to any Subpoena any and all writings, recordings, and other evidence, wherever located, whether within or outside the jurisdiction of the United States.
(4) Daiwa Trust consents to the personal jurisdiction of any Federal or State court located in the United States with respect to any criminal or civil proceedings that may
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be brought against Daiwa by any Federal, State or local governmental authority.
(5) Daiwa Trust may surrender custody and possession, and permit or agree to the sale, transfer or delivery of any original writing or recording associated with any asset, liability or customer relationship transferred to or assumed by Sumitomo or any other purchaser or transferee provided that Daiwa Trust fully satisfies the requirements of this paragraph (5).
(a) Daiwa Trust shall assure that any such original writings and recordings remain within the United States through a control agreement with Sumitomo or other purchaser or transferee.
(b) At any time, upon request by any Federal, State or local governmental authority, Daiwa Trust shall provide a witness with knowledge and who is competent (i) to satisfy the authentication requirements of Fed.R.Evid. 901, 1001, and 1004, and (ii) to testify as to facts relevant to a determination of whether the original writing or recording is admissible under Fed.R.Evid. 801, 803, 401 and 402.
(c) It is understood and agreed that, if, at any time, Daiwa Trust fails to provide a witness competent to testify as to the facts relevant to a determination of the admissibility of any original writing or recording to the satisfaction of the relevant court or tribunal under Fed.R.Evid. 801, 803, 401 and 402, then, in addition to any other action which might be taken for violation of the SETTLEMENT AGREEMENT, as amended, Daiwa Trust shall be precluded from interposing an objection under Fed.R.Evid. 801, 803, 401 and 402 to the admissibility of the original in any administrative or judicial proceeding brought by any Federal, State, or local governmental authority. In the event that Daiwa Trust does not provide a witness competent to testify as to the facts relevant to a determination under Fed.R.Evid. 801, 803, 401 and 402 of the admissibility of an original writing or recording, Daiwa Trust may avail itself of any procedure or method of proof that will result in a ruling by the relevant court or tribunal that the original writing or recording is admissible under Fed.R.Evid 801, 801, 401 and 402 (as an alternative to providing a witness in the relevant proceeding), including but not limited to (i) entry into a stipulation with the party or parties in the relevant proceeding whose consent would be required on the question of admissibility under Fed. R.Evid. 801, 803, 401 and 402 or (ii) execution and delivery of an affidavit or similar instrument of a responsible officer of Daiwa Trust attesting to, or waiving any objection to, the admissibility of the original under Fed.R.Evid. 801, 803, 401 and 402. The FDIC agrees that it will not unreasonably withhold its consent to any stipulation regarding the admissibility under Fed.R.Evid. 801, 803, 401 and 402 of an original writing or recording in any administrative or judicial proceeding in which it is a party. The parties agree that Daiwa Trust shall not be precluded from opposing the admissibility of such original on any other ground.
(6) Notwithstanding anything in paragraph (5) to the contrary, Daiwa Trust may sell, transfer or otherwise relinquish control of any original writing or recording associated with any asset, liability or customer relationship transferred to or assumed by Sumitomo or any other purchaser or transferee provided that it fully satisfies the requirements of this paragraph (6).
(a) Daiwa Trust shall make and retain a duplicate of any such writing or recording.
(b) At any time, upon request by any Federal, State, or local governmental authority, Daiwa Trust shall provide a witness with knowledge who is competent (i) to satisfy the authentication requirements of Fed.R.Evid. 901, 1001 and 1004, and (ii) to testify as to facts relevant to a determination of whether the duplicate writing or recording is admissible under Fed. R.Evid. 801, 803, 401 and 402.
(c) It is understood and agreed that, if Daiwa Trust fails to provide a witness competent to testify as to the facts relevant to a determination under Fed.R.Evid. 801, 803, 401 and 402 of the admissibility of any duplicate of an original writing or recording to the satisfaction of the relevant court or tribunal, then, in addition to any other action which might be taken for violation of this Amendment of SETTLEMENT AGREEMENT, Daiwa Trust shall be precluded from interposing an objection under Fed.R.Evid. 801, 803, 401 and 402 to the admissibility of the duplicate in any administrative or judicial proceeding brought by any Federal, state, or local governmental authority. In the event that Daiwa Trust does not provide a witness competent to testify as to facts rel-
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evant to a determination under Fed.R.Evid. 801, 803, 401 and 402 of the admissibility of a duplicate of any original writing or recording, Daiwa Trust may avail itself of any procedure or method of proof that will result in a ruling by the relevant court or tribunal that the duplicate writing or recording is admissible under Fed.R.Evid. 801, 803, 401 and 402 (as an alternative to providing a witness in the relevant proceeding), including, but not limited to (i) entry into a stipulation with the party or parties in the relevant proceeding whose consent would be required on the question of admissibility under Fed.R.Evid. 801, 803, 401 and 402 or (ii) execution and delivery of an affidavit or similar instrument of a responsible officer of Daiwa Trust attesting to, or waiving any objection to, the admissibility of such duplicate under Fed.R.Evid. 801, 803, 401 and 402. The FDIC agrees that it will not unreasonably withhold its consent to any stipulation regarding the admissibility under Fed. R.Evid. 801, 803, 401 and 402 of a duplicate writing or recording in any administrative or judicial proceeding in which it is a party. The parties agree that Daiwa Trust shall not be precluded from opposing the admissibility of such duplicate on any other ground.
(7) Daiwa Trust agrees that, with respect to all writings and recordings located outside the United States as of the date of this Amendment of SETTLEMENT AGREEMENT, it will fully satisfy the requirements of this paragraph (7).
(a) Daiwa Trust will produce in response to any Subpoena all responsive writings or recordings.
(b) At any time, upon request by any Federal, State or local governmental authority, Daiwa Trust shall produce a duly authorized custodian of records who is competent (i) to satisfy the authentication requirements of Fed.R.Evid. 901, 1001, and 1004, and (ii) to testify as to facts relevant to a determination of whether the original writing or recording is admissible under Fed.R.Evid. 801, 803, 401 and 402.
(8) Daiwa Trust hereby irrevocably appoints CT Corporation System, or some similar firm, with an office at One Times Square, 11th Floor, New York, New York, 10036, United States (the "Process Agent") as its agent to receive, on behalf of Daiwa Trust and its property, service of copies of any Notice of Charges, Notice of Assessment, Summons and Complaint, Criminal Complaint, Indictment or Information, and any other process which may be served by any Federal, State, or local governmental authority. Service may be made by registered mail or comparable means or delivering by hand a copy of such process to Daiwa Trust in care of the Process Agent at the address specified above for the Process Agent. Failure of the Process Agent to give notice to Daiwa Trust, or failure of Daiwa Trust to receive notice of such service of process shall not affect in any way the validity of such service on the Process Agent or Daiwa Trust. Daiwa Trust shall take any and all reasonable action, including the execution and filing of any and all documents, that may be necessary to continue the designations of the Process Agent above in full force and effect, and to cause the Process Agent to continue to act as such.
(9) Daiwa Trust agrees that it will appear at any and all proceedings related to the filing of any criminal charges against Daiwa Trust, and that should Daiwa Trust fail to appear as required, it waives any objection to the commencement or continuation of such proceedings.
(10) Notwithstanding any other provision of this SETTLEMENT, as amended, paragraphs (3), (4), (7), (8) and (9) of this Amendment of SETTLEMENT AGREEMENT shall cease to be of any effect or in any way binding on Daiwa Trust or its successors and assigns on the day that falls five years from the effective date of this Amendment of SETTLEMENT AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this SETTLEMENT AGREEMENT, which is effective as of the date of its execution, on February 2, 1996.
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