Exhibit 99.4.4
--------------
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INSURANCE BINDER 06/03/02
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THIS BINDER IS A TEMPORARY INSURANCE CONTRACT, SUBJECT TO THE CONDITIONS SHOWN ON THE REVERSE SIDE OF THIS FORM.
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PRODUCER PHONE COMPANY BINDER #
(A/C, No, Ext): (000) 000-0000
------------------------------------ The Travelers Cos. BINDER 205821
XxXxxx Xxxxx Group, Inc. -----------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx XXXXXXXXX XXXXXXXXXX
Xxx Xxxx, XX 00000 -----------------------------------------------------------------------
Xxxxx X. Xxxxx DATE TIME DATE TIME
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05/26/02 12:01 X AM 05/26/03 X 12:01 AM
PM NOON
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------------------------------------------------------------- THIS BINDER IS ISSUED TO EXTEND COVERAGE IN THE ABOVE NAMED
CODE: 86720 SUB CODE: COMPANY PER EXPIRING POLICY #:
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AGENCY DESCRIPTION OF OPERATIONS/VEHICLES/PROPERTY
CUSTOMER ID: 36022 (Including Location)
-------------------------------------------------------------
INSURED Glickenhaus & Co.
Attn: Xx. Xxxxxxx Xxx Xxxxxxx
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
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COVERAGES LIMITS
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TYPE OF INSURANCE COVERAGE/FORMS DEDUCTIBLE COINS% AMOUNT
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PROPERTY CAUSES OF LOSS
--- --- ---
BASIC BROAD SPEC
--- --- ---
--- ----------------------
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GENERAL LIABILITY EACH OCCURRENCE $
--- -------------------------------------------
COMMERCIAL GENERAL LIABILITY FIRE DAMAGE (Any one fire) $
--- --- --- -------------------------------------------
CLAIMS MADE OCCUR MED EXP (Any one person) $
--- --- --- -------------------------------------------
PERSONAL & ADV INJURY $
--- -------------------------------------------
GENERAL AGGREGATE $
--- ---------------- -------------------------------------------
RETRO DATE FOR CLAIMS MADE: PRODUCTS - COMP/OP AGG $
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AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
--- -------------------------------------------
ANY AUTO BODILY INJURY (Per person) $
--- -------------------------------------------
ALL OWNED AUTOS BODILY INJURY (Per accident) $
--- -------------------------------------------
SCHEDULED AUTOS PROPERTY DAMAGE $
--- -------------------------------------------
HIRED AUTOS MEDICAL PAYMENTS $
--- ------------------------------------------
NON-OWNED AUTOS PERSONAL INJURY PROT $
---- -------------------------------------------
UNINSURED MOTORIST $
---- -------------------------------------------
$
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AUTO PHYSICAL DAMAGE DEDUCTIBLE ALL VEHICLES SCHEDULED VEHICLES ACTUAL CASH VALUE
--- --- --- -------------------------------------------
COLLISSION: STATED AMOUNT $
--- ---------- -------------------------------------------
OTHER THAN COL: OTHER
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GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $
--- -------------------------------------------
ANY AUTO OTHER THAN AUTO ONLY:
--- -------------------------------------------
EACH ACCIDENT $
--- ----------------------------- -------------------------------------------
AGGREGATE $
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EXCESS LIABILITY EACH OCCURRENCE $
--- -------------------------------------------
UMBRELLA FORM AGGREGATE $
--- -------------------------------------------
OTHER THAN UMBRELLA FORM RETRO DATE FOR CLAIMS MADE: SELF-INSURED RETENTION $
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WC STATUTORY LIMITS
-------------------------------------------
WORKER'S COMPENSATION E.L. EACH ACCIDENT $
AND -------------------------------------------
EMPLOYER'S LIABILITY E.L. DISEASE - EA EMPLOYEE $
-------------------------------------------
E.L. DISEASE - POLICY LIMIT $
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SPECIAL FEES $
CONDITIONS/ FINANCIAL INSTITUTION BOND -------------------------------------------
OTHER Bound effective 5/26/02 as outlined on the TAXES $
COVERAGES (See attached Spec Conditions/Other Covs page.) -------------------------------------------
ESTIMATED TOTAL PREMIUM $
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NAME AND ADDRESS
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MORTGAGEE ADDITIONAL INSURED
--- ---
LOSS PAYEE
--- ---
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LOAN #
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AUTHORIZED REPRESENTATIVE
/s/ XXXXX X. XXXXX
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1 of 3 #46976 NOTE: IMPORTANT STATE INFORMATION ON REVERSE SIDE KYM
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attached proposal and confirmation from Traveler
Limit $10,000,000 Deductible $350,000
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[LOGO OMITTED] DECLARATIONS
Chubb Group of Insurance Companies FINANCIAL INSTITUTION
00 Xxxxxxxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 XXXX FORM B
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NAME OF ASSURED Bond Number: 81260254 (DFI)
(including its Subsidiaries):
GLICKENHAUS & CO.
GLICKENHAUS & CO. PROFIT SHARING PLAN VIGILANT INSURANCE COMPANY
New York, NY 10017 Incorporated under the laws of
New York a stock insurance company
herein called the COMPANY
00 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000-0000
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ITEM 1. BOND PERIOD: from 12:01 a.m. on May 26, 2001
to 12:01 a.m. on May 26, 2002
ITEM 2. AGGREGATE LIMIT OF LIABILITY: $10,000,000
ITEM 3. SINGLE LOSS LIMITS OF LIABILITY - DEDUCTIBLE AMOUNTS:
The amounts set forth below shall be part of and not in addition to the
AGGREGATE LIMIT OF LIABILITY. If "Not Covered" is inserted opposite any
specified INSURING CLAUSE, such INSURING CLAUSE and any other reference
to such INSURING CLAUSE in this Bond shall be deemed to be deleted.
SINGLE LOSS DEDUCTIBLE
INSURING CLAUSE LIMIT OF LIABILITY AMOUNT
--------------- ------------------ ------
1. Dishonesty
A. Employee $ 10,000,000. $ 350,000.
B. Trade or Loan $ 10,000,000. $ 350,000.
C. Partner $ 10,000,000. $ 350,000.
2. On Premises $ 10,000,000. $ 350,000.
3. In Transit $ 10,000,000. $ 350,000.
4. Forgery or Alteration $ 10,000,000. $ 350,000.
5. Extended Forgery $ 10,000,000. $ 350,000.
6. Counterfeit Money $ Not Covered $ N/A
7. Computer System $ 10,000,000. $ 350,000.
8. Facsimile Signature $ 10,000,000. $ 350,000.
ITEM 4. THE LIABILITY OF THE COMPANY IS ALSO SUBJECT TO THE TERMS OF THE
FOLLOWING ENDORSEMENTS EXECUTED SIMULTANEOUSLY HEREWITH:
1-7
ITEM 5. ORGANIZATIONS TO BE NOTIFIED OF TERMINATION:
FNMA, NYSE
IN WITNESS WHEREOF, THE COMPANY has caused this Bond to be signed by its
authorized officers, but it shall not be valid unless also signed by an
authorized representative of the Company.
President
/s/ Xxxxxx Xxxxxxxxx
----------------------------------
Authorized Representative
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Form B-2 (12-97)
Form 17-02-1372 (Ed. 12-97) Page 1 of 1
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Pag
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The COMPANY, in consideration of payment of the required
premium, and in reliance on the APPLICATION and all other
statements made and information furnished to the COMPANY by
the ASSURED, and subject to the DECLARATIONS made a part of
this Bond and to all other terms and conditions of this Bond,
agrees to pay the ASSURED for:
================================================================================
Insuring Clauses
Dishonesty 1. A. Employee
Loss resulting directly from dishonest acts, other
than stated in 1.B. below, of any Employee,
committed alone or in collusion with others except
with a director or trustee of the ASSURED who is
not an Employee, which result in improper personal
financial gain to either such Employee or other
natural person acting in collusion with such
Employee, or which acts were committed with the
intent to cause the ASSURED to sustain such loss.
B. Trade or Loan
Loss resulting directly from dishonest acts of any
Employee, committed alone or in collusion with
others except with a director or trustee of the
ASSURED who is not an Employee, which arises
totally or partially from:
(1) any Trade, or
(2) any Loan,
provided, however, the ASSURED shall first
establish that the loss was directly caused by
dishonest acts of any Employee which result in
improper personal financial gain to such Employee
and which acts were committed with the intent to
cause the ASSURED to sustain such loss.
Notwithstanding the foregoing, when a loss is
covered under this INSURING CLAUSE and the Employee
was acting in collusion with others and intended to
receive improper personal financial gain, but said
Employee failed to derive such improper personal
financial gain, such loss will nevertheless be
covered under this INSURING CLAUSE as if the
Employee had obtained such improper personal
financial gain provided that the ASSURED
establishes that the Employee intended to receive
such improper personal financial gain.
C. Partner
Loss, in excess of the Financial Interest in the
ASSURED of a Partner, resulting directly from
dishonest or fraudulent acts of such Partner,
committed alone or in collusion with others, which
acts must be committed with the intent:
(1) to cause the ASSURED to sustain such loss,
and
(2) to obtain improper personal financial gain
for such Partner and which acts in fact
result in such Partner obtaining such gain.
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 1 of 20
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Insuring Clauses
Dishonesty For the purpose of this INSURING CLAUSE, improper
(continued) personal financial gain shall not include salary,
salary increases, commissions, fees, bonuses,
promotions, awards, profit sharing, incentive
plans, pensions or other emoluments received by a
Partner or Employee.
================================================================================
On Premises 2. Loss of Property resulting directly from:
a. robbery, burglary, misplacement, mysterious
unexplainable disappearance, damage or
destruction, or
b. false pretenses, or common law or statutory
larceny, committed by a natural person while
on the premises of the ASSURED,
while the Property is lodged or deposited at
premises located anywhere.
Those premises of depositories maintained by a
stock exchange in which the ASSURED is a member
shall be deemed to be premises of the ASSURED but
only as respects loss of Certificated Securities.
Certificated Securities held by such depository
shall be deemed to be Property to the extent of the
ASSURED'S interest therein as effected by the
making of appropriate entries on the books and
records of such depository.
================================================================================
In Transit 3 Loss of Property resulting directly from common law
or statutory larceny, misplacement, mysterious
unexplainable disappearance, damage or destruction,
while the Property is in transit anywhere:
a. in an armored motor vehicle, including
loading and unloading thereof,
b. in the custody of a natural person acting as
a messenger of the ASSURED, or
c. in the custody of a Transportation Company
and being transported in a conveyance other
than an armored motor vehicle provided,
however, that covered Property transported in
such manner is limited to the following:
(1) written records,
(2) Certificated Securities issued in
registered form, which are not endorsed
or are restrictively endorsed, or
(3) Negotiable Instruments not payable to
bearer, which are not endorsed or are
restrictively endorsed.
Coverage under this INSURING CLAUSE begins
immediately on the receipt of such Property by the
natural person or Transportation Company and ends
immediately on delivery to the premises of the
addressee or to any representative of the addressee
located anywhere.
================================================================================
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 2 of 20
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Insuring Clauses
(continued)
Forgery or Alteration 4. Loss resulting directly from:
a. Forgery on, or fraudulent material alteration
of, any Negotiable Instrument (other than an
Evidence of Debt), Acceptance, Withdrawal
Order or receipt for the withdrawal of
Property, Certificate of Deposit or Letter of
Credit, or
b. transferring, paying or delivering any funds
or other Property, or establishing any credit
or giving any value in reliance on any
written instructions to the ASSURED
authorizing or acknowledging the transfer,
payment, delivery or receipt of funds or
other Property which instructions
fraudulently purport to bear the handwritten
signature of any customer of the ASSURED,
financial institution, or Employee, but which
instructions either bear a Forgery or have
been fraudulently materially altered without
the knowledge and consent of such customer,
financial institution, or Employee.
For the purpose of this INSURING CLAUSE, a
mechanically reproduced facsimile signature is
treated the same as a handwritten signature.
================================================================================
Extended Forgery 5. Loss resulting directly from the ASSURED having, in
good faith, for its own account or the account of
others:
a. acquired, sold or delivered, given value,
extended credit or assumed liability, in
reliance on any original
(1) Certificated Security,
(2) deed, mortgage or other instrument
conveying title to, or creating or
discharging a lien on, real property,
(3) Evidence of Debt,
(4) Instruction which
i. bears a Forgery, or
ii. is fraudulently materially
altered, or
iii. is lost or stolen, or
b. guaranteed in writing or witnessed any
signature on any transfer, assignment, bill
of sale, power of attorney, or endorsement
upon or in connection with any item listed in
a.(1) through a.(4) above, or
c. acquired, sold or delivered, or given value,
extended credit or assumed liability in
reliance on any item listed in a.(1) or a.(2)
above which is a Counterfeit Original.
Actual physical possession, and continued actual
physical possession if taken as collateral, of the
items listed in a.(1) through a.(4) above by the
ASSURED or a Federal or State chartered deposit
institution of the ASSURED is a condition precedent
to the ASSURED having relied on such items. Release
or return of such collateral is an acknowledgment
by the ASSURED that it no longer relies on such
collateral.
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 3 of 20
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Insuring Clauses
Extended Forgery For the purpose of this INSURING CLAUSE, a
(continued) mechanically reproduced facsimile signature is
treated the same as a handwritten signature.
================================================================================
Counterfeit Money 6. Loss resulting directly from the receipt by the
ASSURED in good faith of any counterfeit Money.
================================================================================
Computer System 7. Loss resulting directly from fraudulent:
a. entries of data into, or
b. changes of data elements or programs within,
a Computer System, provided the fraudulent
entry or change causes:
(1) funds or other property to be
transferred, paid or delivered,
(2) an account of the ASSURED or of its
customer to be added, deleted, debited
or credited, or
(3) an unauthorized account or a fictitious
account to be debited or credited.
================================================================================
Facsimile Signature 8. Loss resulting directly from any issuer of
securities, transfer agent, bank, banker or trust
company having received from the ASSURED or the New
York Stock Exchange, specimen copies of the
ASSURED'S mechanically reproduced facsimile
signature and having acted in reliance upon any
false, fraudulent or unauthorized reproduction of
such facsimile signature, whether such facsimile
signature is the facsimile signature duly adopted
by the ASSURED or is one resembling or purporting
to be such facsimile signature, regardless of by
whom or by what means the same may have been
imprinted, and whether or not such loss is
sustained by reason of the ASSURED having entered
into an agreement to be legally liable when such
facsimile signature or one resembling or purporting
to be such facsimile signature is used, provided,
however, that
a. such facsimile signature is used
(1) as the signature to an assignment or
other instrument authorizing or
effecting the transfer of shares of
stock, or other registered securities,
which may now or at any time hereafter
be registered in the name of the
ASSURED on the books of the
association, company or corporation
issuing the same, or
(2) as the signature to a power of
substitution, designating a substitute
or substitutes to make the actual
transfer on the books of the issuer of
shares of stock, or other registered
securities, in respect of which the
ASSURED may now or at any time
hereafter be named as an attorney to
effect said transfer, whether said
power of substitution is embodied in an
endorsement on the certificate for said
shares of stock or other registered
security or in a separate instrument,
and
b. the New York Stock Exchange has not
interposed any objections to the use by the
ASSURED of such facsimile signature and such
agreement, if any, was required by the said
Exchange as a condition to its failing to
interpose any such objections, and
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 4 of 20
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Insuring Clauses
Facsimile Signature c. this INSURING CLAUSE 8. shall not apply to
(continued) any Certified Security which is a Counterfeit
Original.
================================================================================
General Agreements
Joint Assured A. Only the first named ASSURED shall be deemed to be
the sole agent of the others for all purposes under
this Bond, including but not limited to the giving
or receiving of any notice or proof required to be
given and for the purpose of effecting or accepting
any amendments to or termination of this Bond. Each
and every other ASSURED shall be conclusively
deemed to have consented and agreed that none of
them shall have any direct beneficiary interest in
or any right of action under this Bond and neither
this Bond nor any right of action shall be
assignable.
Knowledge possessed or discovery made by any
ASSURED shall constitute knowledge possessed or
discovery made by all of the ASSUREDS for the
purposes of this Bond.
All losses and other payments, if any, payable by
the COMPANY shall be payable to the first named
ASSURED without regard to such ASSURED'S
obligations to others, and the COMPANY shall not be
responsible for the application by the first named
ASSURED of any payment made by the COMPANY. If the
COMPANY agrees to and makes payment to any ASSURED
other than the one first named, such payment shall
be treated as though made to the first named
ASSURED. The COMPANY shall not be liable for loss
sustained by one ASSURED to the advantage of any
other ASSURED.
================================================================================
Representations
Made By Assured
B. The ASSURED represents that all information it has
furnished in the APPLICATION for this Bond or
otherwise is complete, true and correct. Such
APPLICATION and other information constitute part
of this Bond.
The ASSURED must promptly notify the COMPANY of any
change in any fact or circumstance which materially
affects the risk assumed by the COMPANY under this
Bond.
Any intentional misrepresentation, omission,
concealment or incorrect statement of a material
fact, in the APPLICATION or otherwise, shall be
grounds for recision of this Bond.
================================================================================
Additional Offices Or C. If the ASSURED, while this Bond is in force, merges
Employees - or consolidates with, or purchases or acquires
Consolidation, assets or liabilities of another institution, the
Merger Or Purchase ASSURED shall not have the coverage afforded under
Or Acquisition Of this Bond for loss which has:
Assets Or Liabilities -
Notice To Company (1) occurred or will occur on premises,
(2) been caused or will be caused by any
employee, or
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General Agreements
Additional Offices (3) arisen or will arise out of the assets or
Or Employees - liabilities,
Consolidation,
Merger Or Purchase of such institution, unless the ASSURED:
Or Acquisition Of
Assets Or Liabilities - a. gives the COMPANY written notice of the
Notice To Company proposed consolidation, merger or purchase or
(continued) acquisition of assets or liabilities prior to
the proposed effective date of such action,
and
b. obtains the written consent of the COMPANY to
extend some or all of the coverage provided
by this Bond to such additional exposure, and
c. on obtaining such consent, pays to the
COMPANY an additional premium.
Notwithstanding anything stated above to the
contrary, the COMPANY hereby agrees to provide
coverage which shall be effective on the date of
acquisition under this Bond for those acquired
institutions in which the ASSURED owns greater than
fifty percent (50%) of the voting stock or voting
rights either directly or through one or more of
its subsidiaries for the remainder of the BOND
PERIOD, with no additional premium, provided the
acquired institution meets all of the following
conditions:
i. the assets shall not exceed ten percent
(10%) of the ASSURED'S assets,
ii. there shall be neither any paid nor
pending Bond claim for the three (3)
year period prior to the date of
acquisition, and
iii. the ASSURED is not aware of any
disciplinary action or proceeding by
State or Federal officials involving
the acquired institution as of the date
of acquisition.
The COMPANY further agrees that as respects any
acquisition that involves a State or Federal
regulatory assisted acquisition or assumption of
assets and/or liabilities, coverage shall be
provided under this Bond for the remainder of the
BOND PERIOD as long as conditions i. and ii. above
are met. As respects such acquisition or assumption
of assets and/or liabilities, coverage applies only
to a Single Loss fully sustained by the ASSURED on
or after the date of such acquisition or
assumption. All of the circumstances, conditions or
acts causing or contributing to a Single Loss must
occur on or after the date of such acquisition or
assumption for coverage to apply regardless of the
time such loss is discovered by the ASSURED.
================================================================================
Change Of Control D. The ASSURED shall notify the COMPANY at the
- Notice To Company earliest practical moment, not to exceed sixty (60)
days, after the ASSURED learns of a change of
control.
There shall be no coverage under this Bond for any
loss involving a Partner or a stockholder or
affiliated group of stockholders that acquires
control if such loss occurs after the date such
party acquired control and if notice of such change
in control is not received by the COMPANY within
the sixty (60) day time period.
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 6 of 20
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General Agreements
Change Of Control - As used in this GENERAL AGREEMENT, control means
Notice To Company the Notice To Company power to determine the
(continued) management or policy of a (continued) controlling
holding company or of the ASSURED by virtue of
partnership interest or voting stock ownership. A
change in control, for the purpose of the required
notice, means:
(1) a change of twenty-five (25%) percent in the
Financial Interest in the ASSURED or Partners
due to a realignment of such Partners'
percentage interest, or
(2) a change in ownership of voting stock or voting
rights which results in direct or indirect
ownership by a stockholder or an affiliated
group of stockholders of ten (10%) percent or
more of such stock or voting rights.
================================================================================
Notice To Company E. The ASSURED shall notify the COMPANY at the
Of Legal Proceedings earliest practical moment, not to exceed sixty (60)
Against Assured - days after the ASSURED receives notice, of any
Election To Defend legal proceeding brought to determine the ASSURED'S
liability for any loss, claim or damage which, if
established, would constitute a collectible loss
under this Bond. Concurrent with such notice, and
as requested thereafter, the ASSURED shall furnish
copies of all pleadings and pertinent papers to the
COMPANY.
The COMPANY may, at it sole option, elect to
conduct the defense of all or part of such legal
proceeding. The defense by the COMPANY shall be in
the name of the ASSURED through attorneys selected
by the COMPANY. The ASSURED shall provide all
reasonable information and assistance as required
by the COMPANY for such defense.
If the COMPANY elects to defend all or part of any
legal proceeding, the court costs and attorneys'
fees incurred by the COMPANY and any settlement or
judgment on that part defended by the COMPANY shall
be a loss under the applicable INSURING CLAUSE of
this Bond. In addition, if the amount demanded in
the legal proceeding is greater than the amount
recoverable under this Bond, or if a DEDUCTIBLE
AMOUNT is applicable, or both, the COMPANY'S
liability for court costs and attorney's fees
incurred in defending all or part of such legal
proceeding is limited to the proportion of such
court costs and attorneys' fees incurred that the
amount recoverable under this Bond bears to the
total of the amount demanded in such legal
proceeding.
If the COMPANY declines to defend the ASSURED, no
settlement without the prior written consent of the
COMPANY or judgment against the ASSURED shall
determine the existence, extent or amount of
coverage under this Bond, and the COMPANY shall not
be liable for any costs, fees and expenses incurred
by the ASSURED.
================================================================================
Nominees F. Loss sustained by any nominee organized by the
ASSURED for the purpose of handling certain of the
ASSUREDS business transactions and composed
exclusively of its Employees shall, for all
purposes under this Bond and whether any partner of
the nominee is concerned or implicated in such
loss, be deemed to be loss sustained by the
ASSURED.
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Conditions And
Limitations
Definitions 1. As used in this Bond:
a. Acceptance means a draft which the drawee
has, by signature written on it, engaged to
honor as presented.
b. Certificate of Deposit means an
acknowledgment in writing by a financial
institution of receipt of Money with an
engagement to repay it.
c. Certificated Security means a share,
participation or other interest in property
of, or an enterprise of, the issuer or an
obligation of the issuer, which is:
(1) represented by an instrument issued in
bearer or registered form, and
(2) of a type commonly dealt in on
securities exchanges or markets or
commonly recognized in any area in
which it is issued or dealt in as a
medium for investment, and
(3) either one of a class or series or by
its terms divisible into a class or
series of shares, participations,
interests or obligations.
d. Computer System means a computer and all
input, output, processing, storage, off-line
media libraries, and communication facilities
which are connected to the computer and which
are under the control and supervision of the
operating system(s) or application(s)
software used by the ASSURED.
e. Counterfeit Original means an imitation of an
actual valid original which is intended to
deceive and be taken as the original.
f. Employee means:
(1) an officer of the ASSURED,
(2) a natural person while in the regular
service of the ASSURED at any of the
ASSURED'S premises and compensated
directly by the ASSURED through its
payroll system and subject to the
United States Internal Revenue Service
Form W-2 or equivalent income reporting
plans of other countries, and whom the
ASSURED has the right to control and
direct both as to the result to be
accomplished and details and means by
which such result is accomplished in
the performance of such service,
(3) a guest student pursuing studies or
duties in any of the ASSURED'S
premises,
(4) an attorney retained by the ASSURED and
an employee of such attorney while
either is performing legal services for
the ASSURED,
(5) a natural person provided by an
employment contractor to perform
employee duties for the ASSURED under
the ASSURED'S supervision at any of the
ASSURED'S premises,
(6) an employee of an institution merged or
consolidated with the ASSURED prior to
the effective date of this Bond, or
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 8 of 20
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Conditions And
Limitations
Definitions (7) a director or trustee of the ASSURED,
(continued) but only while performing acts within
the scope of the customary and usual
duties of any officer or other employee
of the ASSURED or while acting as a
member of any committee duly elected or
appointed to examine or audit or have
custody of or access to Property of the
ASSURED.
Each employer of persons as set forth in
f.(4) or f.(5) preceding and the partners,
officers and other employees of such
employers shall collectively be deemed to be
one person for the purpose of SECTION 1.s.
below, and in the event of payment under this
Bond, the COMPANY shall be subrogated to the
ASSURED'S rights of recovery, as stated in
SECTION 11., against any such employer.
Employee does not mean any agent, broker,
factor, commission merchant, independent
contractor not specified in f(4) or f.(5)
preceding, intermediary, finder or other
representative of the same general character
who is not on the ASSURED'S payroll system or
who is not subject to the ASSURED'S reporting
to the United States Internal Revenue Service
on a Form W-2 or equivalent income reporting
plans of other countries.
g. Evidence of Debt means an instrument,
including a Negotiable Instrument, executed
by a customer of the ASSURED and held by the
ASSURED, which in the regular course of
business is treated as evidencing the
customer's debt to the ASSURED.
h. Financial Interest in the ASSURED includes
the financial interest of the ASSURED'S
general partner(s) or limited partner(s)
included as Partner under this Bond,
committing dishonest acts covered by this
Bond or concerned or implicated in such acts,
and means:
(1) as respects general partners, the value
of all right, title and interest of
such general partner(s), determined as
of the close of business on the date of
discovery of loss covered by this Bond,
in the aggregate of:
(a) the "net worth" of the ASSURED
which, for the purposes of this
Bond, shall be deemed to be the
excess of its total assets over
its total liabilities, without
adjustment to give effect to
loss covered by this Bond
(except that credit balances
and equities in proprietary
accounts of the ASSURED, which
shall include capital accounts
of partners, investment and
trading accounts of the
ASSURED, participations of the
ASSURED in joint accounts, and
accounts of partners which are
covered by agreements providing
for the inclusion of equities
as partnership property, shall
not be considered as
liabilities) with securities,
spot commodities, commodity
future contracts in such
proprietary accounts and all
other assets marked to market
or fair value and with
adjustment for profits and
losses at the market of
contractual commitments for
such proprietary accounts of
the ASSURED, and
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 9 of 20
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Conditions And
Limitations
Definitions (b) the value of all other Money,
(continued) securities and property
belonging to (such general
partner(s), or in which such
general partner(s) have
pecuniary interest, held by or
in the custody of and legally
available to the ASSURED as
set-off against loss covered by
this Bond, provided,
however, that if such "net worth" adjusted to
give effect to loss covered by this Bond and
such value of all other Money, securities and
property as set forth in h.(1)(b) preceding,
plus the amount of coverage afforded by this
Bond on account of such loss, is not
sufficient to enable the ASSURED to meet its
obligations, including its obligations to its
partners other than to such general
partner(s), then the Financial Interest in
the ASSURED of such general partner(s) shall
be reduced in an amount necessary, or
eliminated if need be, in order to enable the
ASSURED on payment of loss under this Bond to
meet such obligations, to the extent that
such payment will enable the ASSURED to meet
such obligations, without any benefit
accruing to such general partner(s) from such
payment, and
(2) as respects limited partners, the value
of such limited partner's(s) investment
in the ASSURED.
i. Forgery means the signing of the name of
another natural person with the intent to
deceive but does not mean a signature which
consists in whole or in part of one's own
name, with or without authority, in any
capacity for any purpose.
j. Initial Transaction Statement means the first
written statement signed by or on behalf of
the issuer of an Uncertificated Security sent
to the registered owner or registered pledgee
containing:
(1) a description of the issue of which the
Uncertificated Security is a part, and
(2) the number of shares or units
transferred to the registered owner,
pledged by the registered owner to the
registered pledgee, or released from
pledge by the registered pledgee, and
(3) the name, address and taxpayer
identification number, if any, of the
registered owner and registered
pledgee, and
(4) the date the transfer pledge or release
was registered.
k. Instruction means a written order to the
issuer of an Uncertificated Security
requesting that the transfer, pledge or
release from pledge of the specified
Uncertificated Security be registered.
l. Letter of Credit means an engagement in
writing by a bank or other person made at the
request of a customer that the bank or other
person will honor drafts or other demands for
payment in compliance with the conditions
specified in the engagement.
m. Loan means all extensions of credit by the
ASSURED and all transactions creating a
creditor or lessor relationship in favor of
the ASSURED, including all purchase and
repurchase agreements, and all transactions
by which the ASSURED assumes an existing
creditor or lessor relationship.
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Form B-2 (12-97)
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Conditions And
Limitations
Definitions n. Money means a medium of exchange in current
(continued) use authorized or adopted by a domestic or
foreign government as part of its currency.
o. Negotiable Instrument means any writing:
(1) signed by the maker or drawer, and
(2) containing an unconditional promise or
order to pay a sum certain in Money and
no other promise, order, obligation or
power given by the maker or drawer, and
(3) is payable on demand or at a definite
time, and
(4) is payable to order or bearer.
p. Partner means any general partner of the
ASSURED and any limited partner of the
ASSURED who is also employed by the ASSURED.
q. Property means any Money; Certificated
Security; Initial Transaction Statement;
Negotiable Instrument; Certificate of
Deposit; Acceptance; Evidence of Debt;
Withdrawal Order; Letter of Credit; insurance
policy; abstract of title, deed and mortgage
on real estate; revenue and other stamps;
precious metals in any form; and books of
account and other records recorded in
writing, but not data processing records or
media.
r. Securities means either Certificated
Securities or Uncertificated Securities.
s. Single Loss means all covered loss, including
court costs and attorneys fees incurred by
the COMPANY under GENERAL AGREEMENT E.,
resulting from:
(1) any one act of burglary, robbery or
attempt at either, in which no Partner
or Employee is implicated, or
(2) any one act or series of related acts
on the part of any natural person
resulting in damage, destruction, or
misplacement of Property, or
(3) all acts other than those specified in
s.(1) and s.(2), caused by any natural
person or in which such person is
implicated, or
(4) any one event not specified in s.(1),
s.(2) or s.(3).
t. Subsidiary means any organization that, at
the inception date of this Bond, is named in
the APPLICATION or is created during the BOND
PERIOD and of which more than fifty percent
(50%) of the outstanding securities or voting
rights representing the present right to vote
for election of directors is owned or
controlled by the ASSURED either directly or
through one or more of its subsidiaries.
u. Trade means any purchase, exchange, or sale
transaction, with or without knowledge of the
ASSURED, whether or not represented by any
indebtedness or balance shown to be due the
ASSURED on any customer account, actual or
fictitious.
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 11 of 20
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Conditions And
Limitations
Definitions v. Transportation Company means any organization
(continued) which provides its own or its leased vehicles
for transportation or which provides freight
forwarding or air express services.
w. Uncertificated Security means a share,
participation or other interest in property
of or an enterprise of the issuer or an
obligation of the issuer, which is:
(1) not represented by an instrument and
the transfer of which is registered on
books maintained for that purpose by or
on behalf of the issuer, and
(2) of a type commonly dealt in on
securities exchanges or markets, and
(3) either one of a class or series or by
its terms divisible into a class or
series of shares, participations,
interests or obligations.
x. Withdrawal Order means a non-negotiable
instrument, other than an instruction, signed
by a customer of the ASSURED authorizing the
ASSURED to debit the customer's account in
the amount of funds stated therein.
For the purposes of these definitions, the singular
includes the plural and the plural includes the
singular, unless otherwise indicated.
================================================================================
General Exclusions - 2. This bond does not directly or indirectly cover:
Applicable To All
Insuring Clauses
a. loss not reported to the COMPANY in writing
within sixty (60) days after termination of
this Bond as an entirety;
b. loss due to riot or civil commotion outside
the United States of America and Canada, or
any loss due to military, naval or usurped
power, war or insurrection. This SECTION
2.b., however, shall not apply to loss which
occurs in transit in the circumstances
recited in INSURING CLAUSE 3., provided that
when such transit was initiated there was no
knowledge on the part of any person acting
for the ASSURED of such riot, civil
commotion, military, naval or usurped power,
war or insurrection;
c. loss resulting from the effects of nuclear
fission or fusion or radioactivity;
d. loss of potential income including, but not
limited to, interest and dividends not
realized by the ASSURED or by any customer of
the ASSURED;
e. damages of any type for which the ASSURED is
legally liable, except compensatory damages,
but not multiples thereof, arising from a
loss covered under this Bond;
f. any costs, fees and expenses incurred by the
ASSURED:
(1) in establishing the existence of or
amount of loss covered under this Bond,
or
(2) as a party to any legal proceeding,
even if such legal proceeding results
in a loss covered by this Bond;
g. loss resulting from indirect or consequential
loss of any nature;
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 12 of 20
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Conditions And
Limitations
General Exclusions - h. loss resulting from dishonest acts of any
Applicable To All member of the Board of Directors or Board of
Insuring Clauses Trustees of the ASSURED who is not an
(continued) Employee, acting alone or in collusion with
others;
i. loss, or that part of any loss, resulting
solely from any violation by the ASSURED or
by any Partner or Employee:
(1) of any law regulating:
a. the issuance, purchase or sale
of securities,
b. securities transactions on
security or commodity exchanges
or the over the counter market,
c. investment companies,
d. investment advisors, or
(2) of any rule or regulation made pursuant
to any such law;
j. loss of confidential information, material or
data;
k. loss resulting from any actual or alleged:
(1) representation or advice, or
(2) warranty or guarantee as to the
performance of any investment;
l. loss due to liability resulting from
disclosure of or acting on material nonpublic
information;
m. loss resulting from transactions in a
customer's account, whether authorized or
unauthorized, except loss resulting from the
unlawful withdrawal and conversion of Money,
Securities or precious metals directly from a
customer's account and provided such unlawful
withdrawal and conversion is covered under
INSURING CLAUSE 1; or
n. loss caused by any natural person,
partnership or corporation engaged by the
ASSURED to perform data processing services.
================================================================================
Specific Exclusions - 3. This bond does not directly or indirectly cover:
Applicable To All
Insuring Clauses a. loss caused by a Partner or Employee
Except Insuring provided, however, this SECTION 3.a. shall
Clause 1. not apply to loss covered under INSURING
CLAUSE 2. or 3. which results directly from
misplacement, mysterious unexplainable
disappearance, or damage or destruction of
Property;
b. loss through the surrender of property away
from premises of the ASSURED as a result of a
threat:
(1) to do bodily harm to any person, except
loss of Property in transit in the
custody of any natural person acting as
messenger of the ASSURED, provided that
when such transit was initiated there
was no knowledge by the ASSURED of any
such threat, or
(2) to do damage to the premises or
Property of the ASSURED;
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 13 of 20
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Conditions And
Limitations
Specific Exclusions - c. loss resulting from payments made or
Applicable To All withdrawals from any account involving
Insuring Clauses erroneous credits to such account, unless
Except Insuring such payments or withdrawals are physically
Clause 1. received by such depositor or representative
(continued) of such depositor who is within the office of
the ASSURED at the time of such payment or
withdrawal, or except when covered under
INSURING CLAUSE 1.;
d. loss involving any Uncertificated Security
provided, however, this SECTION 3.d. shall
not apply to Insuring Clause 7.;
e. loss of property while in the mail;
f. damages resulting from any civil, criminal or
other legal proceeding in which the ASSURED
is adjudicated to have engaged in
racketeering activity. For the purposes of
this SECTION 3.f., "racketeering activity" is
defined in 18 United State Code 1961 et seq.,
as amended;
g. loss resulting from the failure for any
reason of a financial or depository
institution, its receiver or other liquidator
to pay or deliver funds or Property to the
ASSURED provided, however, this SECTION 3.g.
shall not apply to Securities covered under
INSURING CLAUSE 2.a.;
h. loss of Property while in the custody of a
Transportation Company provided, however,
this Section 3.h. shall not apply to INSURING
CLAUSE 3.;
i. loss resulting from entries or changes made
by a natural person with authorized access to
a Computer System who acts in good faith on
instructions, unless such instructions are
given to that person by a software contractor
or its partner, officer, or employee
authorized by the ASSURED to design, develop,
prepare, supply, service, write or implement
programs for the ASSURED'S Computer System;
j. loss resulting directly or indirectly from
the input of data into a Computer System
terminal device, either on the premises of a
customer of the ASSURED or under the control
of such a customer, by a customer or other
person who had authorized access to the
customer's authentication mechanism;
k. loss resulting from the use of credit, debit,
charge, access, convenience, identification,
cash management or other cards whether such
cards were issued, or purport to have been
issued, by the ASSURED or by anyone other
than the ASSURED;
l. loss involving items of deposit which are not
finally paid for any reason including, but
not limited to, forgery or any other fraud;
m. loss caused by any agent, broker, factor,
commission merchant, independent contractor,
intermediary, finder or other representative
of the same general character of the ASSURED;
or
n. loss caused by any employee, agent, broker,
factor, commission merchant, independent
contractor, intermediary, finder or other
representative of the same general character
of any third party, while conducting business
with the ASSURED on behalf of such third
party.
================================================================================
Form B-2 (12-97)
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Conditions And
Limitations
(continued)
Specific Exclusions - 4. This bond does not directly or indirectly cover:
Applicable To All
Insuring Clauses a. loss resulting from the complete or partial
Except Insuring non-payment of or default on any Loan whether
Clauses 1., 4., And such Loan was procured in good faith or
5. through trick, artifice, fraud or false
pretenses provided, however, this SECTION
4.a. shall not apply to INSURING CLAUSE 7;
b. loss resulting from forgery or any
alteration;
c. loss involving a counterfeit provided,
however, this SECTION 4.c. shall not apply to
INSURING CLAUSE 6; or
d. loss resulting from any Trade provided,
however, this SECTION 4.d. shall not apply to
INSURING CLAUSE 7.
================================================================================
Limit Of Liability 5. The COMPANY'S total cumulative liability for all
Single Loss of all ASSUREDS discovered during the
Aggregate Limit Of BOND PERIOD shall not exceed the AGGREGATE LIMIT OF
Liability LIABILITY as stated in ITEM 2. of the DECLARATIONS.
Each payment made under the terms of this Bond
shall reduce the unpaid portion of the AGGREGATE
LIMIT OF LIABILITY until it is exhausted.
On exhausting the AGGREGATE LIMIT OF LIABILITY by
such payments:
a. the COMPANY shall have no further liability
for loss or losses regardless of when
discovered and whether or not previously
reported to the COMPANY, and
b. the COMPANY shall have no obligation under
GENERAL AGREEMENT E. to continue the defense
of the ASSURED, and on notice by the COMPANY
to the ASSURED that the AGGREGATE LIMIT OF
LIABILITY has been exhausted, the ASSURED
shall assume all responsibility for its
defense at its own cost.
The unpaid portion of the AGGREGATE LIMIT OF
LIABILITY shall not be increased or reinstated by
any recovery made and applied in accordance with
SECTION 11. In the event that a loss of Property is
settled by indemnity in lieu of payment, then such
loss shall not reduce the unpaid portion of the
AGGREGATE LIMIT OF LIABILITY.
Single Loss Limit Of The COMPANY'S liability for each Single Loss shall
Liability not exceed the applicable SINGLE LOSS LIMIT OF
LIABILITY as stated in ITEM 3. of the DECLARATIONS
or the unpaid portion of the AGGREGATE LIMIT OF
LIABILITY, whichever is less. If a Single Loss is
covered under more than one INSURING CLAUSE, the
maximum payable shall not exceed the largest
applicable SINGLE LOSS LIMIT OF LIABILITY.
================================================================================
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Conditions And
Limitations
(continued)
Discovery 6. This Bond applies only to loss first discovered by
an officer of the ASSURED during the BOND PERIOD.
Discovery occurs at the earlier of an officer of
the ASSURED being aware of:
a. facts which may subsequently result in a loss
of a type covered by this Bond, or
b. an actual or potential claim in which it is
alleged that the ASSURED is liable to a third
party,
regardless of when the act or acts causing or
contributing to such loss occurred, even though the
amount of loss does not exceed the applicable
DEDUCTIBLE AMOUNT or the Financial Interest in the
ASSURED, or the exact amount or details of loss may
not then be known.
================================================================================
Notice To Company - 7. a. The ASSURED shall give the COMPANY notice at
Proof - Legal the earliest practicable moment, not to
Proceedings Against exceed sixty (60) days after discovery of a
Company loss, in an amount that is in excess of 50%
of the applicable DEDUCTIBLE AMOUNT, as
stated in Item 3. of the DECLARATIONS.
b. The ASSURED shall furnish to the COMPANY
proof of loss, duly sworn to, with full
particulars, within six (6) months after such
discovery.
c. Certificated Securities listed in a proof of
loss shall be identified by certificate or
bond numbers, if issued with them.
d. Legal proceedings for the recovery of any
loss under this Bond shall not be brought
prior to the expiration of sixty (60) days
after the proof of loss is filed with the
COMPANY or after the expiration of
twenty-four (24) months from the discovery of
such loss.
e. This Bond affords coverage only in favor of
the ASSURED. No claim, suit, action or legal
proceeding shall be brought under this Bond
by anyone other than the ASSURED.
================================================================================
Deductible Amount 8. The COMPANY shall be liable under this Bond only
for the amount by which any Single Loss is greater
than the applicable DEDUCTIBLE AMOUNT as stated in
ITEM 3. of the DECLARATIONS, and is equal to or
less than the applicable SINGLE LOSS LIMIT OF
LIABILITY. The DEDUCTIBLE AMOUNT is in addition to
the Financial Interest in the ASSURED as stated in
SECTION 1.h.
================================================================================
Valuation 9. The value of any loss of Property consisting of
books of account or other records used by the
Books Of Account Or ASSURED in the conduct of its business shall be the
Other Records amount paid by the ASSURED for blank books, blank
pages, or other materials which replace the lost
books of account or other records, plus the cost of
labor paid by the ASSURED for the actual
transcription or copying of data to reproduce such
books of account or other records.
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Form B-2 (12-97)
Form 17-02-1371 (Ed. 12-97) Page 16 of 20
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Conditions And
Limitations
(continued)
Loan The value of any loss or that portion of any loss
resulting from a Loan shall be the amount actually
disbursed by the ASSURED to a borrower under such
Loan reduced by all amounts including, but not
limited to, interest and fees received by the
ASSURED under all Loans to such borrower, whether
or not part of any claim under this Bond.
Money Any loss of Money, or loss payable in Money, shall
be paid in the Money of the United States of
America or the dollar equivalent of it, determined
by the free market rate of exchange in effect at
the time of discovery of such loss.
Other Property The value of any loss of Property, other than as
stated above, shall be the actual cash value or the
cost of repairing or replacing such Property with
property of like quality and value, whichever is
less.
Securities The value of any loss of Securities shall be the
average market value of such Securities on the
business day immediately preceding discovery of
such loss provided, however, that the value of any
Securities replaced by the ASSURED, with the
consent of the COMPANY and prior to the settlement
of any claim for them, shall be the actual market
value at the time of replacement. In the case of a
loss of interim certificates, warrants, rights or
other Securities, the production of which is
necessary to the exercise of subscription,
conversion, redemption or deposit privileges, the
value of them shall be the market value of such
privileges immediately preceding their expiration
if said loss is not discovered until after their
expiration. If no market price is quoted for such
Securities or for such privileges, the value shall
be fixed by agreement of the parties.
Set-Off Any loss covered under INSURING CLAUSE 1.A. shall
be reduced by a set-off consisting of the amount
owed to the Employee causing the loss, whether or
not assigned to another.
Trade The value of any loss or that portion of any loss
resulting from a Trade shall be reduced by the
amount of commission and other amounts received by
the ASSURED as a result of such Trade.
================================================================================
Securities Settlement 10. In the event of a loss of Securities covered under
this Bond, the COMPANY may, at its sole discretion,
purchase replacement Securities, tender the value
of the Securities in Money, or issue its indemnity
to effect replacement Securities.
The indemnity required from the ASSURED under the
terms of this SECTION against all loss, cost or
expense arising from the replacement of Securities
by the COMPANY'S indemnity shall be:
a. for Securities having a value less than or
equal to the applicable DEDUCTIBLE AMOUNT -
one hundred (100%) percent;
b. for Securities having a value in excess of
the applicable DEDUCTIBLE AMOUNT but within
the SINGLE LOSS LIMIT OF LIABILITY - the
percentage that the DEDUCTIBLE AMOUNT bears
to the value of the Securities;
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Conditions And
Limitations
Securities Settlement c. for Securities having a value greater than
(continued) the applicable SINGLE LOSS LIMIT OF LIABILITY
- the percentage that the DEDUCTIBLE AMOUNT
and portion in excess of the SINGLE LOSS
LIMIT OF LIABILITY bears to the value of the
Securities.
The value referred to in SECTIONS 10.a., b., and c.
is the value in accordance with SECTION 9.,
VALUATION, regardless of the value of such
Securities at the time the loss under the COMPANY'S
indemnity is sustained.
The COMPANY is not required to issue its indemnity
for any portion of a loss of Securities which is
not covered by this Bond, however, the COMPANY may
do so as a courtesy to the ASSURED and at its sole
discretion.
The ASSURED shall pay the proportion of the
COMPANY'S premium charge for the COMPANY'S
indemnity as set forth in SECTIONS 10.a., b., and
c. No portion of the SINGLE LOSS LIMIT OF LIABILITY
shall be used as payment of premium for any
indemnity purchased by the ASSURED to obtain
replacement Securities.
================================================================================
Subrogation - 11. In the event of a payment under this Bond, the
Assignment - COMPANY shall be subrogated to all of the ASSURED'S
Recovery rights of recovery against any person or entity to
the extent of such payment. On request, the ASSURED
shall deliver to the COMPANY an assignment of the
ASSURED'S rights, title and interest and causes of
action against any person or entity to the extent
of such payment.
Recoveries, whether effected by the COMPANY or by
the ASSURED, shall be applied net of the expense of
such recovery, in the following order:
a. first, to the satisfaction of the ASSURED'S
covered loss which would otherwise have been
paid but for the fact that it is in excess of
either the SINGLE LOSS LIMIT OF LIABILITY or
AGGREGATE LIMIT OF LIABILITY,
b. second, to the COMPANY in satisfaction of
amounts paid in settlement of the ASSURED'S
claim,
c. third, to the ASSURED in satisfaction of the
applicable DEDUCTIBLE AMOUNT, and
d. fourth, to the ASSURED in satisfaction of any
loss suffered by the ASSURED which was not
covered under this Bond.
Recovery from reinsurance or indemnity of the
COMPANY shall not be deemed a recovery under this
SECTION.
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Conditions And
Limitations
Subrogation - This Bond does not afford coverage in favor of any
Assignment - Depository, and, in the event of a payment under
Recovery (continued) this Bond, the COMPANY shall be subrogated to the
ASSURED'S rights of recovery against any
Depository.
To the extent that, under the rules of a
Depository, the ASSURED is liable to such
Depository for a portion of the recovery received
by the COMPANY, the COMPANY will reimburse the
ASSURED for the ASSURED'S liability for its portion
of such recovery up to, but not exceeding, the
amount of the loss payment by the COMPANY.
================================================================================
Cooperation Of 12. At the COMPANY'S request and at reasonable times
Assured and places designated by the COMPANY, the ASSURED
shall:
a. submit to examination by the COMPANY and
subscribe to the same under oath, and
b. produce for the COMPANY'S examination all
pertinent records, and
x. xxxxxxxxx with the COMPANY in all matters
pertaining to the loss.
The ASSURED shall execute all papers and render
assistance to secure to the COMPANY the rights and
causes of action provided for under this Bond. The
ASSURED shall do nothing after loss to prejudice
such rights or causes of action.
================================================================================
Termination 13. This Bond terminates as an entirety on the earliest
occurrence of any of the following:
a. immediately on the receipt by the COMPANY of
a written notice from the ASSURED of its
decision to terminate this Bond, or
b. immediately on the appointment of a trustee,
receiver or liquidator to act on behalf of
the ASSURED, or the taking over of the
ASSURED by State or Federal officials, or
c. immediately on the dissolution of the
ASSURED, or
d. immediately on the taking over of the ASSURED
by another entity, or
e. immediately on exhausting the AGGREGATE LIMIT
OF LIABILITY, or
f. immediately on expiration of the BOND PERIOD.
This Bond terminates as to any Partner or
Employee:
(1) immediately on the ASSURED, or any of
its Partners, directors, trustees or
officers not acting in collusion with
such Partner or Employee, learning of
any dishonest act committed by such
Partner or Employee at any time,
whether in the employment of the
ASSURED or otherwise, whether or not
such act is of the type covered under
this Bond, and whether against the
ASSURED or any other person or entity,
or
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Conditions And
Limitations
Termination (2) fifteen (15) days after the receipt by
(continued) the ASSURED of a written notice from
the COMPANY of its decision to
terminate this Bond as to any Partner
or Employee.
Termination as to any Partner or Employee
shall not apply if the dishonest act occurred
prior to the employment with the ASSURED and
involved less than $10,000.
Such termination, however, is without
prejudice to the loss of any Property then in
transit in the custody of such Partner or
Employee.
The COMPANY will mark its records to indicate that
the organizations named in ITEM 5. of the
DECLARATIONS are to be notified promptly concerning
termination or substantial modification of this
Bond as an entirety or as to any Partner or
Employee, whether such termination is effected by
notice from the ASSURED or by the COMPANY. The
COMPANY will use its best efforts to so notify said
organizations, but failure to so notify shall not
impair or delay the effectiveness of any such
termination.
================================================================================
Other Insurance 14. Coverage under this Bond shall apply only as excess
over any other valid and collectible insurance,
indemnity or suretyship obtained by or on behalf
of:
a. the ASSURED, or
b. a Transportation Company, or
c. another entity on whose premises the loss
occurred or which employed the person causing
the loss or engaged the messenger conveying
the Property involved.
================================================================================
Employee Benefit 15. All of the ASSURED'S employee benefit plans that
Plans qualify under Section 412 of the Employee
Retirement Income Security Act of 1974 (ERISA), are
provided bonding protection under INSURING CLAUSE
1., DISHONESTY, as required under ERISA.
================================================================================
Conformity 16. If any limitation within this Bond is prohibited by
any law controlling this Bond's construction, such
limitation shall be deemed to be amended so as to
equal the minimum period of limitation provided by
such law.
================================================================================
Change Or 17. This Bond or any instrument amending or affecting
Modification this Bond may not be changed or modified orally. No
change in or modification of this Bond shall be
effective except when made by written endorsement
to this Bond signed by an authorized representative
of the COMPANY.
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VIGILANT INSURANCE COMPANY
Endorsement No. 1
Bond Number: 81260254
NAME OF ASSURED: XXXXXXXXXXX & CO.
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SCHEDULED PROCESSORS ENDORSEMENT
It is agreed that this Bond is amended as follows:
1. By adding the following INSURING CLAUSE:
"9. Processors
Loss resulting directly from dishonest acts of any Processor named in the
SCHEDULE below, committed alone or in collusion with others, which acts
must be committed with the manifest intent:
a. to cause the ASSURED to sustain such loss, and
b. to obtain improper personal financial gain for such Processor and
which acts in fact result in such Processor obtaining such gain.
Improper personal financial gain shall not include salary, salary
increases, commissions, fees, bonuses, promotions, awards, profit sharing,
incentive plans, pensions or other emoluments received by a Processor.
SCHEDULE
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AUTOMATIC DATA PROCESSING"
2. By adding to Section 1., Definitions, the following:
"y. Processor means any natural person, partnership or corporation named in
the SCHEDULE in Insuring Clause duly authorized by the ASSURED to perform
data processing of the ASSURED'S checks and accounting records related to
such checks, but only while such person, partnership or corporation is
actually performing such services and not creating, preparing, modifying
or maintaining the ASSURED'S computer software or programs.
The term Processor shall include the partners, officers, and employees of
such Processor. Each Processor and its partners, officers and employees
shall collectively be deemed to be one person for all purposes of Section
1., Definitions, S., Single Loss, (3)."
3. Section 2., General Exclusions, n., and Section 4., Specific Exclusions,
b., does not apply to loss covered under Insuring Clause 9.
4. By adding to Section II., Subrogation-Assignment-Recovery, the following:
"The attached Bond does not afford coverage in favor of any Processor and,
in the event of a payment of a loss caused by a Processor under this Bond,
the COMPANY shall be subrogated
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to the ASSURED's rights of recovery, as described in this Section 10.
preceding, against any Processor."
5. By adding to Section 13., Termination, the following:
"This Bond terminates as to any Processor:
(i) immediately on the ASSURED, or any of its Partners, directors,
trustees or officers of the ASSURED not acting in collusion with
such Processor, learning of any dishonest act committed by such
Processor at any time, whether under contract to the ASSURED or
otherwise whether or not such act is of the type covered under this
Bond, and whether against the ASSURED or any other person or entity,
or
(ii) fifteen (days) days after receipt by the ASSURED of a written notice
from the COMPANY of its decision to terminate this Bond as to any
Processor."
This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001.
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
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VIGILANT INSURANCE COMPANY
Endorsement No.: 2
Bond Number: 81260254 (DFI)
NAME OF ASSURED: XXXXXXXXXXX & CO.
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ARKANSAS NOTIFICATION ENDORSEMENT
It is agreed that this Bond is amended by adding to Section 13., Termination,
the following:
"No cancellation or termination of this Bond as an entirety, whether by or at
the request of the ASSURED or by the COMPANY, shall take effect prior to the
expiration of thirty (30) days after written notice of such cancellation or
termination has been filed with the Arkansas Securities Commissioner, Arkansas
Securities Division, Heritage West Building, 3rd Floor, 000 Xxxx Xxxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000 unless an earlier date of such cancellation or termination
is approved by said Arkansas Securities Department, State of Arkansas."
This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001.
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
General use
Form 17-02-1343 (Ed. 1-97)
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VIGILANT INSURANCE COMPANY
Endorsement No.: 3
Bond Number: 81260254 (DFI)
NAME OF ASSURED: XXXXXXXXXXX & CO.
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NEW YORK AMENDATORY ENDORSEMENT
It is agreed that this Bond is amended as follows:
1. By adding to Section 13., Termination, the following:
"Section 13. Termination by the Company
Bonds In Effect Sixty (60) Days Or Less
If this Bond has been in effect for less than sixty (60) days and if it is
not a renewal Bond, the COMPANY may terminate it for any reason by mailing
or delivering to the ASSURED and to the authorized agent or broker, if
any, written notice of termination as specified in Section 13.
Termination, in the Bond.
Bond In Effect More Than Sixty (60) Days
If this Bond has been in effect for sixty (60) days or more, or if it is a
renewal of a Bond issued by the COMPANY, it may be terminated by the
COMPANY by mailing or delivering to the ASSURED and to the authorized
agent or broker, if any, written notice of termination in accordance with
the notice provision of Section 13., Termination, in the Bond.
Furthermore, when the Bond is a renewal or has been in effect for sixty
(60) days or more, the COMPANY may terminate only for one or more of the
reasons stated in 1-7 below.
1. Nonpayment of premium;
2. Conviction of a crime arising out of acts increasing the hazard
insured against;
3. Discovery of fraud or material misrepresentation in the obtaining of
this Bond or in the presentation of a claim thereunder;
4. Violation of any provision of this Bond that substantially and
materially increases the hazard insured against, and which occurred
subsequent to inception of the current BOND PERIOD;
5. If applicable, material physical change in the property insured,
occurring after issuance or last annual renewal anniversary date of
this Bond, which results in the property becoming uninsurable in
accordance with the COMPANY'S objective, uniformly applied
underwriting standards in effect at the time this Bond was issued or
last renewed; or material change in the nature or extent of this
Bond occurring after issuance or last annual renewal anniversary
date of this Bond, which causes the risk of loss to be substantially
and materially increased beyond that contemplated at the time this
Bond was issued or last renewed;
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6. A determination by the Superintendent of Insurance that continuation
of the present premium volume of the COMPANY would jeopardize the
COMPANY'S policyholders, creditors or the public, or continuing the
Bond itself would place the COMPANY in violation of any provision of
the New York Insurance Code; or
7. Where the COMPANY has reason to believe, in good faith and with
sufficient cause, that there is a probable risk or danger that the
Property will be destroyed by the ASSURED for the purpose of
collecting the insurance proceeds.
Notice Of Termination
Notice of termination under this SECTION shall be mailed to the ASSURED
and to the authorized agent or broker, if any, at the address shown on the
DECLARATIONS of this Bond. The COMPANY, however, may deliver any notice
instead of mailing it.
Return Premium Calculations
The COMPANY shall refund the unearned premium computed pro rata if this
Bond is terminated by the COMPANY."
2. It is further understood and agreed that for the purposes of Section 13.,
Termination, any occurrence listed in Parts c., d., e. or f. of that
Section shall be considered to be a request by the ASSURED to immediately
terminate this Bond.
3. By adding a new Section reading as follows:
"Section 18. Election to Conditionally Renew / Nonrenew this Bond
Conditional Renewal
If the COMPANY conditionally renews this Bond subject to:
1. Change of limits of liability;
2. Change in type of coverage;
3. Reduction of coverage;
4. Increased deductible;
5. Addition of exclusion; or
6. Increased premiums in excess of 10%, exclusive of any premium
increase due to and commensurate with insured value added; or as a
result of experience rating, retrospective rating or audit; the
COMPANY shall send notice as provided in NOTICES OF NONRENEWAL AND
CONDITIONAL RENEWAL immediately below.
Notices Of Nonrenewal And Conditional Renewal
1. If the COMPANY elects not to renew this Bond, or to conditionally
renew this Bond as provided herein, the COMPANY shall mail or
deliver written notice to the ASSURED at least sixty (60) but not
more than one hundred twenty (120) days before:
a. The expiration date; or
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b. The anniversary date if this Bond has been written for a term
of more than one year
2. Notice shall be mailed or delivered to the ASSURED at the address
shown on the DECLARATIONS of this Bond and the authorized agent or
broker, if any. If notice is mailed, proof of mailing shall be
sufficient proof of notice.
3. Paragraphs 1. and 2. immediately above shall not apply when the
ASSURED, authorized agent or broker, or another insurer has mailed
or delivered written notice to the COMPANY that the Bond has been
replaced or is no longer desired."
4. By adding to General Agreement B., Representations Made by Assured, the
following:
"No misrepresentation shall be deemed material unless knowledge by the
COMPANY would have lead to the COMPANY'S refusal to write this Bond."
This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
General Use
Form 17-02-1426 (Rev. 3-01)
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VIGILANT INSURANCE COMPANY
Endorsement No.: 4
Bond Number: 81260254 (DFI)
NAME OF ASSURED: XXXXXXXXXXX & CO.
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VOICE INITIATED FUNDS TRANSFER INSTRUCTION ENDORSEMENT
It is agreed that this Bond is amended as follows:
1. By adding the following INSURING CLAUSE:
"10. Voice Initiated Funds Transfer Instruction
Loss resulting directly from the ASSURED having transferred any funds on
the faith of any Voice Initiated Funds Transfer Instruction made by a
person purporting to be:
a. a Customer, or
b. an authorized representative of the Customer, or
c. an Employee who was authorized by the ASSURED to instruct other
Employees to transfer funds,
provided, however, such instructions were received by an Employee
specifically designated to receive and act upon such instructions, and
such acts were committed by said person for the purpose of making an
improper personal financial gain for such person or any other person.
The following conditions are precedent to coverage under this INSURING
CLAUSE:
a. The ASSURED will record all Voice Initiated Funds Transfer
Instruction. The ASSURED, however, shall not be deprived of coverage
under this INSURING CLAUSE if at the time of filing proof of loss,
as set forth in Section 7. of this Bond, the ASSURED is unable to
produce such electronic recordings solely because of failure of the
electronic recording equipment to audibly record such instructions.
b. The ASSURED shall verify all Voice Initiated Funds Transfer
Instruction in excess of the DEDUCTIBLE AMOUNT stated in Item 3.10.
of the DECLARATIONS by a direct electronically recorded call back to
the Customer when such instructions:
(1) involve a request to transfer funds to other than the
Customer's account,
(2) are non-repetitive, or
(3) are not in accordance with the parameters contained in the
written voice initiated funds transfer agreement between the
ASSURED and the Customer.
B-2 Bond
Form 17-02-2371 (Ed. 10-00) Page 1 of 2
2. By adding to Section 1., Definitions, the following:
z. Customer means any corporation, partnership, proprietor, trust or
individual having an account with the ASSURED and which has a
written agreement with the ASSURED for Voice Initiated Funds
Transfer Instructions."
aa. Voice Initiated Funds Transfer Instruction means those oral
instructions authorizing the transfer of funds in a Customer's
account to a financial institution for credit to accounts designated
by the Customer:
(1) made over the telephone;
(2) directed to those Employees specifically authorized by the
ASSURED to receive such instructions by telephone at the
ASSURED's offices;
(3) which were electronically recorded.
3. By adding to SECTION 7., NOTICE TO COMPANY-PROOF-LEGAL PROCEEDINGS AGAINST
COMPANY, the following:
"f. Proof of loss involving Voice Initiated Funds Transfer Instructions
shall include electronic recordings of such instructions."
This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001.
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
B-2 Bond
Form 17-02-2371 (Ed. 10-00) Page 2 of 2
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VIGILANT INSURANCE COMPANY
Endorsement No.: 5
Bond Number: 81260254 (DFI)
NAME OF ASSURED: XXXXXXXXXXX & CO.
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AUDIT AND CLAIMS EXPENSE ENDORSEMENT
It is agreed that this Bond is amended as follows:
1. By adding the following INSURING CLAUSE:
"11. Audit and Claims Expense
1. Reasonable expense incurred by the ASSURED for audits or
examinations required by State or Federal supervisory
authorities to be conducted either by such authorities or by
independent accountants as the result of loss sustained by the
ASSURED in excess of the applicable DEDUCTIBLE AMOUNT. This
INSURING CLAUSE applies solely to losses covered under
INSURING CLAUSE 1.
2. Reasonable expense incurred by the ASSURED, solely for
independent firms or individuals retained to determine the
amount of loss, where:
a. the loss is covered under the Bond, and
b. the loss is in excess of the applicable DEDUCTIBLE
AMOUNT.
2. Under General Exclusions-Applicable To All Insuring Clauses, Section
2.f.(1) does not apply to loss covered under this INSURING CLAUSE.
This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001.
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
B-2 Bond
Form 17-02-2343 (Ed. 10-00)
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VIGILANT INSURANCE COMPANY
Endorsement No.: 6
Bond Number: 81260254 (DFI)
NAME OF ASSURED: XXXXXXXXXXX & CO.
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AUTOMATIC ACQUISITION PERCENTAGE THRESHOLD ENDORSEMENT
It is agreed that this Bond is amended by deleting in its entirety General
Agreement C., Additional Offices or Employees-Consolidation, Merger or Purchase
or Acquisition of Assets or Liabilities-Notice To Company, and substituting the
following:
C. Additional Offices or Employees-Consolidation, Merger or Purchase or
Acquisition Of Assets or Liabilities-Notice to Company
If the ASSURED, while this Bond is in force, merges or consolidates with,
or purchases or acquires assets or liabilities of another institution, the
ASSURED shall not have the coverage afforded under this Bond for loss
which has:
(1) occurred or will occur on premises,
(2) been caused or will be caused by any Employee, or
(3) arisen or will arise out of the assets or liabilities, of such
institution, unless the ASSURED:
a. gives the COMPANY written notice of the proposed consolidation,
merger or purchase or acquisition of assets or liabilities prior to
the proposed effective date of such action, and
b. obtains the written consent of the COMPANY to extend some or all of
the coverage provided by this Bond to such additional exposure, and
c. on obtaining such consent, pays to the COMPANY an additional
premium.
Notwithstanding anything stated above to the contrary, the COMPANY hereby
agrees to provide coverage which shall be effective on the date of
acquisition under this Bond for those acquired institutions in which the
ASSURED owns greater than fifty percent (50%) of the voting stock or
voting rights either directly or through one or more of its subsidiaries
for the remainder of the BOND PERIOD, with no additional premium, provided
the acquired institution meets all of the following conditions:
i. the assets shall not exceed fifteen percent (15%) of the ASSURED'S
assets,
ii. there shall be neither any paid nor pending Bond claim for the three
(3) year period prior to the date of acquisition, and
iii. the ASSURED is not aware of any disciplinary action or proceeding by
State or Federal officials involving the acquired institution as of
the date of acquisition.
B-2 Bond
Form 17-02-2348 (Ed. 10-00) Page 1 of 2
The COMPANY further agrees that as respects any acquisition that involves
a State or Federal regulatory assisted acquisition or assumption of assets
and/or liabilities, coverage shall be provided under this Bond for the
remainder of the BOND PERIOD as long as conditions i. and ii. above are
met. As respects such acquisition or assumption of assets and/or
liabilities, coverage applies only to a Single Loss fully sustained by the
ASSURED on or after the date of such acquisition or assumption. All of the
circumstances, conditions or acts causing or contributing to a Single Loss
must occur on or after the date of such acquisition or assumption for
coverage to apply regardless of the time such loss is discovered by the
ASSURED.
This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001.
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
B-2 Bond
Form 17-02-2348 (Ed. 10-00) Page 2 of 2
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VIGILANT INSURANCE COMPANY
Endorsement No.: 7
Bond Number: 81260254 (DFI)
NAME OF ASSURED: XXXXXXXXXXX & CO.
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It is agreed that this Bond is amended as follows:
1. By adding an additional INSURING CLAUSE as follows:
"12. Telefacsimile Transmissions:
By reason of the ASSURED having transferred, paid or delivered any funds or
property or established any credit, debited any account or given any value on
the faith of any fraudulent instructions sent by a customer or financial
institution by Telefacsimile transmission directly to the ASSURED authorizing or
acknowledging the transfer, payment or delivery of funds or property or the
establishment of a credit or the debiting of an account or the giving of value
by the ASSURED where such Telefacsimile instructions
a. bear a valid test key exchanged between the ASSURED and a customer or
another financial institution which authority to use such test key for
Telefacsimile instructions in the ordinary course of business but which
test key has been wrongfully obtained by a person who was not authorized
to initiate, make, validate or authenticate a test key arrangement; and
b. fraudulently purport to have been sent by such customer or financial
institution but which Telefacsimile instructions were transmitted without
the knowledge or consent of such customer or financial institution by a
person other than such customer or financial institution and which bear a
Forged Signature,
but provided that the Telefacsimile instruction was verified by a direct call
back to an Employee of the customer or other financial institution (or a person
thought by the Assured to be an Employee of the customer or other financial
institution).
2. By adding to Section 1., Definitions, the following:
bb. Telefacsimile means a system of transmitting written documents by
electronic signals over telephone lines to equipment maintained by the
ASSURED within its communication room f for the purpose of reproducing a
copy of communication sent by Telex or similar means of communication or
through an Electronic Communication System or through an Automated
Clearing House.
cc. Forged Signature means the handwritten signing of the name of another
genuine person or a copy of said person's signature without authority and
with intent to deceive. Forged Signature does not include the signing in
whole or in part of one's own name with or without authority, in any
capacity, for any purpose.
3. By adding after Section 3., Specific Exclusions, the following Section:
"Section 3.A. Specific Exclusions-Applicable to all Insuring Clauses except
Insuring Clause 13.
This Bond does not directly or indirectly cover loss resulting from
Telefacsimile."
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This Endorsement applies to loss discovered after 12:01 a.m. on May 26, 2001.
ALL OTHER TERMS AND CONDITIONS OF THIS BOND REMAIN UNCHANGED.
Date: June 8, 2001 By /s/ Xxxxxx Xxxxxxxxx
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Authorized Representative
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