BEAR XXXXXXX
THE BEAR XXXXXXX COMPANIES INC.
000 XXXX XXXXXX
XXX XXXX, XX 00000
(000) 000-0000
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This Agreement ("Agreement") sets forth the terms and conditions on
which subsidiaries of The Bear Xxxxxxx Companies Inc. will open and maintain
account(s) in your name and otherwise transact business with you.
1. PARTIES. You hereby agree that the parties to this Agreement shall
consist of you and each and every subsidiary of The Bear Xxxxxxx Companies Inc.,
whether now existing or hereafter created (each such subsidiary being referred
to hereinafter as a "Bear Xxxxxxx entity" and all such subsidiaries being
collectively referred to hereinafter as "Bear Xxxxxxx").
2. APPLICABLE LAWS, RULES AND REGULATIONS. All transactions shall be
subject to the applicable laws, rules and regulations of all federal, state and
self-regulatory authorities, including, but not limited to, the rules and
regulations of the Board of Governors of the Federal Reserve System and the
constitution, rules and customs of the exchange or market (and clearing house)
where such transactions are executed.
3. SECURITY INTEREST AND LIEN; REGISTRATION OF SECURITIES. As security
for the payment and performance of all of your obligations and liabilities from
time to time outstanding to any Bear Xxxxxxx entity, whether under this
Agreement or otherwise, each Bear Xxxxxxx entity shall have a continuing first
lien and security interest in (i) all property in which you now have or
hereafter acquire an interest which is now or hereafter held by or through any
Bear Xxxxxxx entity, including, but not limited to, any and all accounts,
instruments, documents, contract rights, commodities and commodity futures
contracts, commercial paper and other securities, monies, deposit accounts and
general intangibles, and (ii) any and all rights, claims or causes of action you
may now or hereafter have against any Bear Xxxxxxx entity. You hereby
acknowledge and agree that all such property of yours held by or through any
Bear Xxxxxxx entity is held as collateral by such Bear Xxxxxxx entity as agent
and bailee for itself and all other Bear Xxxxxxx entities. You represent that
all of the above-described collateral shall at all times be free and clear of
all liens, claims and encumbrances of any nature other than the security
interest created hereby. In addition, in order to satisfy any of your
outstanding liabilities or obligations to any Bear Xxxxxxx entity, Bear Xxxxxxx
may, to the fullest extent permitted by law, at any time in its discretion and
without prior notice to you, use, apply or transfer any and all securities or
other property (including, without limitation, fully-paid securities and cash).
You hereby agree that, except as otherwise specifically agreed in writing, Bear
Xxxxxxx may register
and hold the securities and other property in your accounts in its name or the
name of its designees.
4. DEPOSITS ON TRANSACTIONS. Whenever Bear Xxxxxxx, in its sole
discretion, considers it necessary in order to assure the due performance of
your open contractual commitments, it may require you, and you hereby agree, to
deposit cash or collateral immediately in your account(s) prior to any
applicable settlement date.
5. BREACH, BANKRUPTCY OR DEFAULT. Any breach of or default under this
Agreement or any other agreement you may have with any Bear Xxxxxxx entity,
whether heretofore or hereafter entered into, or the filing of a petition or
other commencement of a proceeding in bankruptcy or insolvency, or the
appointment of a receiver, by or against you or any guarantor, co-signer or
other party liable on or providing security for your obligations to any Bear
Xxxxxxx entity, or the levy of an attachment against your or any such other
party's account(s) with any Bear Xxxxxxx entity, or your death, mental
incompetence or dissolution, or any other grounds for insecurity, as determined
by Bear Xxxxxxx in its sole discretion (including, without limitation, any
indication of your refusal or inability to satisfy promptly any margin call or
other deposit requirement hereunder), shall constitute, at Bear Xxxxxxx'
election, a default by you under any or all agreements you may then have with
any Bear Xxxxxxx entity, whether heretofore or hereafter entered into. In the
event of any such default, each Bear Xxxxxxx entity shall have all of the rights
of a secured party upon default under the New York Uniform Commercial Code and
other applicable laws, rules and regulations, including, without limitation, the
right, without prior notice to you; to sell any and all property in which you
have an interest held by or through any Bear Xxxxxxx entity, to buy any and all
property which may have been sold short, to exercise any and all options and
other rights, to accelerate, cancel, terminate, liquidate, close out and net the
settlement payments and/or delivery obligations under any or all outstanding
transactions and/or to purchase or sell any other securities or property to
offset market risk, and to offset any indebtedness you may have (either
individually or jointly with others), after which you shall be liable to Bear
Xxxxxxx for any remaining deficiency, loss, costs or expenses incurred or
sustained by Bear Xxxxxxx in connection therewith. Such purchases and/or sales
may be effected publicly or privately without notice or advertisement in such
manner as Bear Xxxxxxx may in its sole discretion determine. At any such sale or
purchase, any Bear Xxxxxxx entity may purchase or sell the property free of any
right of redemption. In addition, each Bear Xxxxxxx entity shall have the right,
at any time and from time to time, to set off and otherwise apply any and all
amounts owing by such Bear Xxxxxxx entity to you or for your account or credit
against any and all amounts now or hereafter owing by you to any Bear Xxxxxxx
entity (including, without limitation, any indebtedness in your accounts),
whether matured or unmatured, fixed, contingent or otherwise and irrespective of
whether any Bear Xxxxxxx entity shall have made any demand therefor. Bear
Xxxxxxx agrees to notify you of any such set-off and application; provided,
however, that the failure to give such notice shall not affect the validity of
any such set-off and application.
6. EXECUTION FEES AND SERVICE CHARGES. You understand that your
account(s) will be charged brokerage commissions or xxxx-ups/xxxx-xxxxx in
connection with the execution of transactions ("Execution Fees") and may be
charged certain other fees for custody and other services furnished to you
("Service Fees"). All such fees shall be determined by Bear Xxxxxxx unless your
account(s) is (are) introduced to Bear Xxxxxxx by another broker, in which case
all Execution Fees and certain Service Fees shall be determined by such other
broker. You further understand that Execution Fees may be changed from time to
time without prior notice to you and Service Fees may be changed from time to
time upon thirty days' prior written notice to you, and, in each case, you agree
to be bound thereby.
7. TRANSACTION REPORTS AND ACCOUNT STATEMENTS. Reports of the execution
of orders shall be conclusive if not objected to in writing by you within the
shorter of the applicable settlement cycle of the subject transactions or three
business days after such documents have been transmitted to you by mail or
otherwise. Statements of account shall be conclusive if not objected to in
writing within ten days after transmission.
8. DEBIT BALANCES; TRUTH-IN-LENDING. You hereby acknowledge receipt of
Bear Xxxxxxx' Truth-in-Lending disclosure statement. You understand that
interest will be charged on any debit balances in your account(s) in accordance
with the methods described in such statement or in any amendment or revision
thereto which may be provided to you. Any debit balance which is not paid at the
close of an interest period will be added to the opening balance for the next
interest period.
9. CLEARANCE ACCOUNTS. If any of your accounts is carried by any Bear
Xxxxxxx entity as clearing agent for your broker, unless such Bear Xxxxxxx
entity receives from you prior written notice to the contrary, it may accept
from such introducing broker, without any inquiry or investigation: (a) orders
for the purchase or sale of securities and other property in your account(s), on
margin or otherwise, and (b) any other instructions concerning your account(s)
or the property therein. You understand and agree that Bear Xxxxxxx shall have
no responsibility or liability to you for any acts or omissions of your broker,
its officers, employees or agents. You agree that your broker and its employees
are third-party beneficiaries of this Agreement, and that the terms and
conditions hereof, including the arbitration provisions, shall be applicable to
all matters between or among any of you, your broker and its employees and Bear
Xxxxxxx and its employees.
10. COLLECTION AND OTHER ACCOUNT-RELATED COSTS. You hereby agree to
pay, on demand, all reasonable direct and indirect costs, liabilities and
damages incurred by Bear Xxxxxxx (including, without limitation, costs of
collection, attorneys' fees, court costs and other expenses in connection with
(i) enforcing its rights hereunder, (ii) any investigation, litigation or
proceeding involving your account or any property therein (including, without
limitation, claims to such property by third parties), (iii) your use of or
access to any Bear Xxxxxxx or third-party system or (iv) Bear Xxxxxxx' acting in
reliance upon your instructions or, if your account is introduced to Bear
Xxxxxxx by another broker, the instructions of such other broker. In
each case and whether or not demand has been made therefor, you hereby authorize
Bear Xxxxxxx to charge your account(s) for any and all such costs, including,
without limitation, costs incurred in connection with the liquidation of any
property held in your account(s).
11. IMPARTIAL LOTTERY ALLOCATION. You agree that, in the event Bear
Xxxxxxx holds on your behalf securities in its name, in the name of its designee
or in bearer form which are called in part, you will participate in the
impartial lottery allocation system for such called securities in accordance
with the rules of the New York Stock Exchange, Inc. or any other appropriate
self-regulatory organization. When any such call is favorable, no allocation
will be made to any account in which, to the knowledge of Bear Xxxxxxx, any
officer, director or employee of Bear Xxxxxxx has any financial interest until
all other customers have been satisfied on an impartial lottery basis.
12. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear Xxxxxxx' failure to
insist at any time upon strict compliance with this Agreement or with any of the
terms hereof nor any continued course of such conduct on its part shall
constitute or be considered a waiver by Bear Xxxxxxx of any of its rights or
privileges hereunder. Any assignment of your rights and obligations hereunder or
your interest in any property held by or through Bear Xxxxxxx without obtaining
the prior written consent of an authorized representative of Bear Xxxxxxx shall
be null and void. Each Bear Xxxxxxx entity reserves the right to assign any of
its rights or obligations hereunder to any other Bear Xxxxxxx entity without
prior notice to you. Notices and other communications (including, without
limitation, margin calls) delivered, taxed, sent by express delivery service or
mailed to the address provided by you shall, until Bear Xxxxxxx has received
notice in writing of a different address be deemed to have been personally
delivered to you. Margin calls may also be communicated orally, without
subsequent written confirmation.
13. FREE CREDIT BALANCES. You hereby authorize Bear Xxxxxxx to use any
free credit balance awaiting investment or reinvestment in your account(s) in
accordance with all applicable rules and regulations and to pay interest thereon
at such rate or rates and under such conditions as are established from time to
time by Bear Xxxxxxx for such account(s) and for the amounts of cash so used.
14. RESTRICTIONS ON ACCOUNT. You understand that Bear Xxxxxxx, in its
sole discretion, may restrict or prohibit trading of securities or other
property in your account(s) and may terminate your account(s), and you shall
nevertheless remain liable for all of your obligations to Bear Xxxxxxx under
this Agreement or otherwise.
15. CREDIT INFORMATION AND INVESTIGATION. You authorize Bear Xxxxxxx
and, if applicable, your introducing broker, in its or their discretion, at any
time and from time to time, to make or obtain reports concerning your credit
standing and business conduct. You may make a written request for a description
of the nature and scope of the reports made or obtained by Bear Xxxxxxx and the
same will be provided to you within a reasonable period of time.
16. SHORT AND LONG SALES. In placing any sell order for a short
account, you will designate the order as such and hereby authorize Bear Xxxxxxx
to xxxx the order as being "short." In placing any sell order for a long
account, you will designate the order as such and hereby authorize Bear Xxxxxxx
to xxxx the order as being "long." The designation of a sell order as being for
a long account shall constitute a representation that you own the security with
respect to which the order has been placed, that such security may be sold
without restriction in the open market and that, if Bear Xxxxxxx does not have
the security in its possession at the time you place the order, you shall
deliver the security by settlement date in good deliverable form or pay to Bear
Xxxxxxx any losses and expenses it may incur or sustain as a result of your
failure to make a delivery on a timely basis.
17. MARGIN AND OTHER COLLATERAL REQUIREMENTS. You hereby agree to
deposit and maintain in your margin accounts, if any, as Bear Xxxxxxx may in its
sole discretion require, and you agree to pay forthwith on demand any debit
balance owing with respect to any of your margin accounts. In addition, you
further agree to deposit promptly and maintain such other collateral with Bear
Xxxxxxx as is required by any other agreement or open transaction you may have
with any Bear Xxxxxxx entity. Upon your failure to make any such payment or
deposit, or if at any time Bear Xxxxxxx, in its sole discretion, deems it
necessary for its protection, whether with or without prior demand, call or
notice, Bear Xxxxxxx shall be entitled to exercise all rights and remedies
provided in paragraphs 3.5 and 27 hereof. No demands, calls, tenders or notices
that Bear Xxxxxxx may have made or given in the past in any one or more
instances shall invalidate your waiver of the requirement to make or give the
same in the future. You further acknowledge and agree that any positions in your
margin account(s) shall be deemed "securities contracts" within the meaning of
Sections 555 and 741(7) of the U.S. Bankruptcy Code and any successors thereto.
Unless you advise Bear Xxxxxxx in writing to the contrary, you represent that
you are not an affiliate [as defined in rule 144(a)(1) under The Securities Act
of 1933] of the issuer of any security held in any of your accounts.
18. CONSENT TO LOAN OR PLEDGE OF SECURITIES IN MARGIN ACCOUNTS. Within
the limits of applicable law and regulations, you hereby authorize Bear Xxxxxxx
to lend either to itself or to others any securities held by Bear Xxxxxxx in any
of your margin accounts to convey therewith all attendant rights of ownership
(including voting rights) and to use all such property as collateral for its
general loans. Any such property, together with all attendant rights of
ownership, may be pledged, repledged, hypothecated or rehypothecated either
separately or in common with other property for any amounts due to Bear Xxxxxxx
thereon or for a greater sum, and Bear Xxxxxxx shall have no obligation to
retain a like amount of similar property in its possession and control. You
hereby acknowledge that, as a result of such activities, Bear Xxxxxxx may
receive and retain certain benefits to which you will not be entitled. In
certain circumstances, such loans may limit, in whole or in part, your ability
to exercise voting and other attendant rights of ownership with respect to the
loaned or pledged securities.
19. LEGALLY BINDING. You hereby agree that this Agreement and all of
the terms hereof shall be binding upon you and your estate, heirs, executors,
administrators, personal
representatives, successors and assigns. You further agree that all purchases
and sales shall be for your account(s) in accordance with your oral and written
instructions. You hereby waive any and all defenses that any such oral
instruction was not in writing as may be required by any applicable law, rule or
regulation.
20. AMENDMENT. You agree that Bear Xxxxxxx may modify the terms of this
Agreement at any time upon prior written notice to you. By continuing to accept
services from Bear Xxxxxxx thereafter, you will have indicated your acceptance
of any such modification. If you do not accept such modification, you must
notify Bear Xxxxxxx in writing; your account may then be terminated by Bear
Xxxxxxx, after which you will remain liable to Bear Xxxxxxx for all outstanding
liabilities and obligations. Otherwise, this Agreement may not be modified
absent a written instrument signed by an authorized representative of Bear
Xxxxxxx.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK AND SHALL BE CONSTRUED, AND THE CONTRACTUAL AND ALL OTHER
RIGHTS AND LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES
THEREOF.
22. ARBITRATION. YOU AGREE THAT CONTROVERSIES ARISING BETWEEN YOU AND
YOUR INTRODUCING BROKER AND/OR BEAR XXXXXXX, AND ANY OF YOUR OR THEIR CONTROL
PERSONS, PREDECESSORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND
EMPLOYEES, SHALL BE DETERMINED BY ARBITRATION.
WITH RESPECT TO THE RESOLUTION OF ANY SUCH CONTROVERSY, YOU FURTHER ACKNOWLEDGE
THAT:
O ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
O EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PARTIES ARE WAIVING THEIR
RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
O PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
O THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION
OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
O THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
O NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT
AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION
OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE
CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS
ACTION UNTIL: (I) THE CLASS CERTIFICATION IS DENIED; (II) THE CLASS IS
DECERTIFIED; OR (III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE
COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT
CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE
EXTENT STATED HEREIN.
O ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD AT THE FACILITIES
AND BEFORE AN ARBITRATION PANEL APPOINTED BY THE NEW YORK STOCK
EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE, INC. OR THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC. OR, IF THE TRANSACTION WHICH
GIVES RISE TO SUCH CONTROVERSY IS EFFECTED IN ANOTHER UNITED STATES
MARKET WHICH PROVIDES ARBITRATION FACILITIES, BEFORE SUCH OTHER
FACILITIES. YOU MAY ELECT ONE OF THE FOREGOING FORUMS FOR ARBITRATION,
BUT IF YOU FAIL TO MAKE SUCH ELECTION BY REGISTERED MAIL OR TELEGRAM
ADDRESSED TO BEAR XXXXXXX SECURITIES CORP., 000 XXXX XXXXXX, XXX XXXX,
XXX XXXX 00000, ATTENTION: CHIEF LEGAL OFFICER (OR ANY OTHER ADDRESS OF
WHICH YOU ARE ADVISED IN WRITING). BEFORE THE EXPIRATION OF TEN DAYS
AFTER RECEIPT OF A WRITTEN REQUEST FROM BEAR XXXXXXX TO MAKE SUCH
ELECTION, THEN BEAR XXXXXXX MAY MAKE SUCH ELECTION FOR ANY ARBITRATION
SOLELY BETWEEN YOU AND A BROKER FOR WHICH BEAR XXXXXXX ACTS AS CLEARING
AGENT. SUCH ELECTION SHALL BE MADE BY REGISTERED MAIL TO SUCH BROKER AT
ITS PRINCIPAL PLACE OF BUSINESS. THE AWARD OF THE ARBITRATORS, OR OF A
MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED
MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.
23. SEVERABILITY. If and to the extent any term or provision herein is
or should become invalid or unenforceable under any present or future law, rule
or regulation of any sovereign government or regulatory body having jurisdiction
over the subject matter of this
Agreement, then (i) the remaining terms and provisions hereof shall be
unimpaired and remain in full force and effect and (ii) the invalid or
unenforceable provision or term shall be replaced by a term or provision that is
valid and enforceable and that comes closest to expressing the intention of such
invalid or unenforceable term or provision.
24. EXTRAORDINARY EVENTS. Bear Xxxxxxx shall not be liable for losses
caused directly or indirectly by government restrictions, exchange or market
rulings, suspension of trading, war, strikes or other conditions beyond its
control.
25. HEADINGS. The headings or the provisions hereof are for ease of
reference only and shall not affect the interpretation or application of this
Agreement or in any way modify or qualify any of the rights provided for
hereunder.
26. TELEPHONE CONVERSATIONS. For the protection of both you and Bear
Xxxxxxx, and as a tool to correct misunderstandings, you hereby authorize Bear
Xxxxxxx, at Bear Xxxxxxx' discretion and without prior notice to you, to monitor
and/or record any or all telephone conversations or electronic communications
between you and Bear Xxxxxxx or any of Bear Xxxxxxx' employees or agents. You
acknowledge that Bear Xxxxxxx may determine not to make or keep any of such
recordings and that such determination shall not in any way affect any party's
rights.
27. CUMULATIVE RIGHTS; ENTIRE AGREEMENT. The rights of each Bear
Xxxxxxx entity set forth in this Agreement and in each other agreement you may
have with any Bear Xxxxxxx entity, whether heretofore or hereafter entered into,
are cumulative and in addition to any other rights and remedies that any Bear
Xxxxxxx entity may have and shall supersede any limitation on or any requirement
for the exercise of such rights and remedies that is inconsistent with the terms
of this or any other such Agreement (including, without limitation, any
requirement that time elapse or notice or demand be given prior to the exercise
of remedies). The provisions of this Agreement shall supersede any inconsistent
provisions of any other agreement heretofore or hereafter entered into by you
and any Bear Xxxxxxx entity to the extent that the subject matter thereof is
dealt with in this Agreement and the provisions of such other agreement would
deny any Bear Xxxxxxx entity any benefit or protection afforded to it under this
Agreement. You hereby appoint Bear Xxxxxxx as your agent and attorney-in-fact to
take any action (including, but not limited to, the filing of financing
statement) necessary or desirable to perfect and protect the security interest
granted in paragraph 3 hereof or to otherwise accomplish the purposes of this
Agreement. Except as set forth above, this Agreement represents the entire
agreement and understanding between you and Bear Xxxxxxx concerning the subject
matter hereof.
28. CAPACITY TO CONTRACT; AFFILIATIONS. You represent that you are of
legal age and that, unless you have notified Bear Xxxxxxx to the contrary,
neither you nor any member of your immediate family is: (i) an employee or
member of any exchange, (ii) an employee or member of the National Association
of Securities Dealers, Inc., (iii) an individual or
an employee of any corporation or firm engaged in business of dealing, as broker
or principal, in securities, options or futures or (iv) an employee of any bank,
trust company or insurance company. If the undersigned is signing on behalf of
others, the undersigned hereby represents that the person(s) or entity(ies) on
whose behalf it is signing is/are authorized to enter into this Agreement and
that the undersigned is duly authorized to sign this Agreement and make the
representation herein in the name and on behalf of such other person(s) or
entity(ies).
If this is a Joint Account, both parties must sign. Persons signing on behalf of
others should indicate the titles or capacities in which they are signing.
BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT:
1. THE SECURITIES IN YOUR MARGIN ACCOUNT(S) AND ANY SECURITIES FOR WHICH
YOU HAVE NOT FULLY PAID, TOGETHER WITH ALL ATTENTION OWNERSHIP RIGHTS,
MAY BE LOANED TO BEAR XXXXXXX OR TO OTHERS; AND
2. YOU HAVE RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH 22.
THIS AGREEMENT IS DATED AS OF ___________________________, 19__.
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(ACCOUNT NUMBER)
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(TYPED OR PRINTED NAME)
X
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(SIGNATURE)
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(TYPED OR PRINTED NAME)
X
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(SIGNATURE)
ACCEPTED AND AGREED TO:
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THE BEAR XXXXXXX COMPANIES, INC. AND ITS SUBSIDIARIES
