Exhibit 10.37


 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


Borrower Agreement


 


BY SIGNING BELOW, THE BORROWER UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT:


 


A.    The
Borrower has received and read a copy of this Borrower Agreement, the attached
Credit Line Account Application and Agreement (including the Credit Line
Agreement following this Borrower Agreement) and the Loan Disclosure Statement
explaining the risk factors that the Borrower should consider before obtaining
a loan secured by the Borrower’s securities account.  The Borrower agrees to be bound by the terms
and conditions contained in the Credit Line Account Application and Agreement
(including the Credit Line Agreement following this Borrower Agreement) (which
terms and conditions are incorporated by reference).  Capitalized terms used in this Borrower
Agreement have the meanings set forth in the Credit Line Agreement.


 


B.    THE
BORROWER UNDERSTANDS AND AGREES THAT UBS BANK USA MAY DEMAND FULL OR
PARTIAL PAYMENT OF THE CREDIT LINE OBLIGATIONS, AT ITS SOLE OPTION AND WITHOUT
CAUSE, AT ANY TIME, AND THAT NEITHER FIXED RATE ADVANCES NOR VARIABLE RATE
ADVANCES ARE EXTENDED FOR ANY SPECIFIC TERM OR DURATION. THE BORROWER
UNDERSTANDS AND AGREES THAT ALL ADVANCES ARE SUBJECT TO COLLATERAL MAINTENANCE
REQUIREMENTS. THE BORROWER UNDERSTANDS THAT UBS BANK USA MAY, AT ANY TIME, IN
ITS DISCRETION, TERMINATE AND CANCEL THE CREDIT LINE REGARDLESS OF WHETHER OR
NOT AN EVENT HAS OCCURRED.


 


C.    UNLESS
DISCLOSED IN WRITING TO UBS BANK USA AT THE TIME OF THIS AGREEMENT, AND
APPROVED BY UBS BANK USA, THE BORROWER AGREES NOT TO USE THE PROCEEDS OF ANY
ADVANCE EITHER TO PURCHASE, CARRY OR TRADE IN SECURITIES OR TO REPAY ANY DEBT (I) USED
TO PURCHASE, CARRY OR TRADE IN SECURITIES OR (II) TO ANY AFFILIATE OF UBS
BANK USA. THE BORROWER WILL BE DEEMED TO REPEAT THIS AGREEMENT EACH TIME THE
BORROWER REQUESTS AN ADVANCE.


 


D.    THE BORROWER UNDERSTANDS THAT BORROWING USING SECURITIES AS
COLLATERAL ENTAILS RISKS. SHOULD THE VALUE OF THE SECURITIES IN THE COLLATERAL
ACCOUNT DECLINE BELOW THE REQUIRED COLLATERAL MAINTENANCE REQUIREMENTS, UBS
BANK USA MAY REQUIRE THAT THE BORROWER POST ADDITIONAL COLLATERAL, REPAY PART OR
ALL OF THE BORROWER’S LOAN AND/OR SELL THE BORROWER’S SECURITIES. ANY REQUIRED
LIQUIDATIONS MAY INTERRUPT THE BORROWER’S LONG-TERM INVESTMENT STRATEGIES
AND MAY RESULT IN ADVERSE TAX CONSEQUENCES.


 


E.     Neither UBS Bank USA nor UBS Financial Services Inc. provides
legal or tax advice and nothing herein shall be construed as providing legal or
tax advice.


 


F.     Upon
execution of this Credit Line Account Application and Agreement, the Borrower
declares that all of the information requested in the Application and supplied
by the Borrower is true and accurate and further agrees to promptly notify UBS
Bank USA in writing of any material changes to any or all of the information
contained in the Application including information relating to the Borrower’s
financial situation.


 


G.    Subject
to any applicable financial privacy laws and regulations, data regarding the
Borrower and the Borrower’s securities accounts may be shared with UBS Bank USA
affiliates. Subject to any applicable financial privacy laws and regulations,
the Borrower requests that UBS Bank USA share such personal financial data with
non-affiliates of UBS Bank USA as is necessary or advisable to effect,
administer or enforce, or to service, process or maintain, all transactions and
accounts contemplated by this Agreement.


 


H.    The
Borrower authorizes UBS Bank USA and UBS Financial Services Inc. to obtain a
credit report or other credit references concerning the Borrower (including
making verbal or written inquiries concerning credit history) or to otherwise
verify on update credit information given to UBS Bank USA at any time. The
Borrower authorizes the release of this credit report or other credit
information to UBS Bank USA affiliates as it deems necessary or advisable to
effect, administer or enforce, or to service, process or maintain all
transactions and accounts contemplated by this Agreement, and for the purpose
of offering additional products, from time to time, to the Borrower. The
Borrower authorizes UBS Bank USA to exchange Borrower information with any
party it reasonably believes is conducting a legitimate credit inquiry in
accordance with the Fair Credit Reporting Act. UBS Bank USA may also share
credit or other transactional experience with the Borrower’s designated UBS
Financial Services Inc. Financial Advisor or other parties designated by the
Borrower.


 


I.      UBS
Bank USA is subject to examination by various federal, state and
self-regulatory organizations and the books and records maintained by UBS Bank
USA are subject to inspection and subpoena by these regulators and by federal,
state, and local law enforcement officials. The Borrower also acknowledges that
such regulators and officials may, pursuant to treaty or other arrangements, in
turn disclose such information to the officials or regulators of other
countries, and that U.S. courts may be required to compel UBS Bank USA to
disclose such information to the officials or regulators of other countries.
The Borrower agrees that UBS Bank USA may disclose to such regulators and
officials information about the Borrower and transactions in the credit line
account or other accounts at UBS Bank USA without notice to the Borrower. In
addition, UBS Bank USA may in the context of a private dispute be required by
subpoena or other judicial process to disclose information or produce
documentation related to the Borrower, the credit line account or other
accounts at UBS Bank USA. The Borrower acknowledges and agrees that UBS Bank
USA reserves the right, in its sole discretion, to respond to subpoenas and
judicial process as it deems appropriate.


 


J.     To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person who opens an account. When
the Borrower opens an account with UBS Bank USA, UBS Bank USA will ask for the
Borrower’s name, address, and other information that will allow UBS Bank USA to
identify the Borrower. UBS Bank USA may also ask to see other identifying
documents. UBS Financial Services Inc. and UBS Bank USA are firmly committed to
compliance with all applicable laws, rules and regulations, including
those related to combating money laundering. The Borrower understands and
agrees that the Borrower must take all necessary steps to comply with the
anti-money laundering laws, rules and regulations of the Borrower’s
country of origin, country of residence and the situs of the Borrower’s
transaction.


 


K.    UBS
Bank USA and its affiliates will act as creditors and, accordingly, their
interests may be inconsistent with, and potentially adverse to, the Borrower’s
interests. As a lender and consistent with normal lending practice, UBS Bank
USA may take any steps necessary to perfect its interest in the Credit Line,
issue a call for additional collateral or force the sale of the Borrower’s
securities if the Borrower’s actions or inactions call the Borrower’s
creditworthiness into question. Neither UBS Bank USA nor UBS Financial Services
Inc. will act as Client’s investment advisor with respect to any liquidation.
In fact UBS Bank USA will act as a creditor and UBS Financial Services Inc.
will act as a securities intermediary.


 


L.     The
Borrower understands that, if the Collateral Account is a managed account with
UBS Financial Services Inc., (i) in addition to any fees payable to UBS
Financial Services Inc. in connection with the Borrower’s managed account,
interest will be payable to the Bank on an amount advanced to the Borrower in
connection with the Credit Line Account, and (ii) the performance of the
managed account might not exceed the managed account fees and the interest
expense payable to the Bank in which case the Borrower’s overall rate of return
will be less than the costs associated with the managed account.


 


M.   UBS
Bank USA may provide copies of all credit line account statements to UBS
Financial Services Inc. and to any Guarantor. The Borrower acknowledges and
agrees that UBS Bank USA may share any and all information regarding the
Borrower and the Borrower’s accounts at UBS Bank USA with UBS Financial
Services Inc. UBS Financial Services Inc. may provide copies of all statements
and confirmations concerning each Collateral Account to UBS Bank USA at such
times and in such manner as UBS Bank USA may request and may share with UBS
Bank USA any and all information regarding the Borrower and the Borrower’s
accounts with UBS Financial Services Inc.


 


1

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


IN WITNESS WHEREOF, the
undersigned (“Borrower”) has signed this Agreement, or has caused this
Agreement to be signed in its name by its duly authorized representatives, as
of the date indicated below.


 


	
   

  	
   

  	
  DATE:

  	
  12/22/2009

  



 


	
  Name of Borrower

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Bruce J. Mackey Jr.

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Francis R. Murphy III

  	
   

  	
  Title:

  	
  Treasurer

  	
   

  



 


The authorized signatory of the Borrower must be one of the
Authorized Persons designated on the applicable UBS Bank USA supplemental form
executed by the Borrower (e.g., the Supplemental Corporate/Resolution Form (HP
Form)).


 


2

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


Credit Line Agreement — Demand Facility


 


THIS CREDIT LINE
AGREEMENT (as it may be amended, supplemented or otherwise modified from time
to time, this “Agreement”) is made by and between the party or parties signing
as the Borrower on the Application to which this Agreement is attached
(together and individually, the “Borrower”) and UBS Bank USA (the “Bank”) and,
together with the Application, establishes the terms and conditions that will
govern the uncommitted demand loan facility made available to the Borrower by
the Bank. This Agreement becomes effective upon the earlier of (i) notice
from the Bank (which notice may be oral or written) to the Borrower that the
Credit Line has been approved and (ii) the Bank making an Advance to the
Borrower.


 


1)     Definitions


 


·      “Advance”
means any Fixed Rate Advance or Variable Rate Advance made by the Bank pursuant
to this Agreement.


 


·      “Advance
Advice” means a written or electronic notice by the Bank, sent to the Borrower,
the Borrower’s financial advisor at UBS Financial Services Inc. or any other
party designated by the Borrower to receive the notice, confirming that a
requested Advance will be a Fixed Rate Advance and specifying the amount, fixed
rate of interest and Interest Period for the Fixed Rate Advance.


 


·      “Application”
means the Credit Line Account Application and Agreement that the Borrower has
completed and submitted to the Bank and into which this Agreement is
incorporated by reference.


 


·      “Approved
Amount” means the maximum principal amount of Advances that is permitted to be
outstanding under the Credit Line at any time, as specified in writing by the
Bank.


 


·      “Breakage
Costs” and “Breakage Fee” have the meanings specified in Section 6(b).


 


·      “Business
Day” means a day on which both of the Bank and UBS Financial Services Inc. are
open for business. For notices and determinations of LIBOR, Business Day must
also be a day for trading by and between banks in U.S. dollar deposits in the
London interbank market.


 


·      “Collateral”
has the meaning specified in Section 8(a).


 


·      “Collateral
Account” means, individually and collectively, each account of the Borrower or
Pledgor at UBS Financial Services Inc. or UBS International Inc., as
applicable, that is either identified as a Collateral Account on the
Application to which this Agreement is attached or subsequently identified as a
Collateral Account by the Borrower or Pledgor, either directly or indirectly
through the Borrower’s or Pledgor’s UBS Financial Services Inc. financial
advisor, together with all successors to those identified accounts,
irrespective of whether the successor account bears a different name or account
number.


 


·      “Credit
Line” has the meaning specified in Section 2(a).


 


·      “Credit
Line Account” means each Fixed Rate Account and each Variable Rate Account of
the Borrower that is established by the Bank in connection with this Agreement
and either identified on the Application or subsequently identified as a Credit
Line Account by the Bank by notice to the Borrower, together with all
successors to those identified accounts, irrespective of whether any successor
account bears a different name or account number.


 


·      “Credit
Line Obligations” means, at any time of determination, the aggregate of the
outstanding principal amounts of all Advances, together with all accrued but
unpaid interest on the outstanding principal amounts, any and all fees or other
charges payable in connection with the Advances and any costs of collection
(including reasonable attorneys’ fees) and other amounts payable by the
Borrower under this Agreement, and any and all other present or future
obligations of the Borrower and the other respective Loan Parties under this
Agreement and the related agreements, whether absolute or contingent, whether
or not due or mature.


 


·      “Event”
means any of the events listed in Section 10.


 


·      “Fixed
Rate Advance” means any advance made under the Credit Line that accrues
interest at a fixed rate.


 


·      “Guarantor”
means any party who guaranties the payment and performance of the Credit Line
Obligations.


 


·      “Guaranty
Agreement” means an agreement pursuant to which a Guarantor agrees to guaranty
payment of the Credit Line Obligations.


 


·      “Interest
Period” means, for a Fixed Rate Advance, the number of days, weeks or months
requested by the Borrower and confirmed in the Advance Advice relating to the
Fixed Rate Advance, commencing on the date of (i) the extension of the
Fixed Rate Advance or (ii) any renewal of the Fixed Rate Advance and, in
each case, ending on the last day of the period, If the last day is not a
Business Day, then the Interest Period will end on the immediately succeeding
Business Day. If the last Business Day would fall in the next calendar month,
the Interest Period will end on the immediately preceding Business Day. Each
monthly or longer Interest Period that commences on the fast Business Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) will end on the last Business
Day of the appropriate calendar month.


 


·      “Joint
Borrower” has the meaning specified in Section 7(a).


 


·      “LIBOR”
means, as of any date of determination for Variable Rate Advances, the
prevailing London Interbank Offered Rate for deposits U.S. dollars having a
maturity of 30 days as published in The Wall Street Journal “Money Rates” Table
on the date of the Advance.


 


If the rate ceases to be
regularly published by The Wall Street Journal, LIBOR will be determined by the
Bank in its sole and absolute discretion. For any day that is not a Business
Day, LIBOR will be the applicable LIBOR in effect immediately prior to that
day.


 


·      “Loan
Party” means each Borrower, Guarantor and Pledgor, each in their respective
capacities under this Agreement or any related agreement.


 


·      “Person”
means any natural person, company, corporation, firm, partnership, joint
venture, limited liability company or limited liability partnership,
association, organization or any other legal entity.


 


·      “Pledgor”
means each Person who pledges to the Bank any Collateral to secure the Credit
Line Obligations (or to secure the obligations of any Guarantor with respect to
the guaranty of the Credit Line Obligations). Pledgors will include (i) each
Borrower who pledges Collateral to secure the Credit Line Obligations, (ii) each
Guarantor who has pledged collateral to secure the Credit Line Obligations or
its obligations under a Guaranty Agreement, (iii) any spouse of a Borrower
who executes a spouse’s pledge and consent agreement with respect to a jointly
held collateral account, (iv) any other joint account holder who executes
a joint account holder pledge and consent agreement with respect to a jointly
held collateral account, and (v) any other Person who executes a pledge
agreement with respect to the Credit Line.


 


·      “Premier
Credit Line” means any Credit Line with an Approved Amount equal to or greater
than $100,000.


 


·      “Prime
Credit Line” means any Credit Line with an Approved Amount less than $100,000.


 


3

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


·      “Prime
Rate” means the floating “Prime Rate” as published in The Wall Street Journal “Money
Rates” Table from time to time. The Prime Rate will change as and when the
Prime Rate as published in The Wall Street Journal changes. In the event that
The  Wall Street Journal does not
publish a Prime Rate, the Prime Rate will be the rate as determined by the Bank
in its sole and absolute discretion.


 


·      “Securities
Intermediary” has the meaning specified in Section 9.


 


·      “UBS
Bank USA Fixed Funding Rate” means, as of any date of determination for Fixed
Rate Advances, an internally computed rate established from time-to-time by the
Bank, in its sole discretion, based upon the LIBOR swap curve for a
corresponding period as well as the Bank’s assessment of other lending rates
charged in the financial markets.


 


·      “UBS
Financial Services Inc.” means UBS Financial Services Inc. and its successors.


 


·      “UBS-I”
means UBS International Inc. and its successors.


 


·      “Variable
Rate Advance” means any advance made under the Credit Line that accrues interest
at a variable rate.”


 


2)     Establishment
of Credit Line; Termination


 


a)     Upon
the effectiveness of this Agreement, the Bank establishes an UNCOMMITTED, DEMAND revolving line of
credit (the “Credit Line”) in an amount up to the Approved Amount. The Bank
may, from time to time upon request of the Borrower, without obligation and in
its sole and absolute discretion, authorize and make one or more Advances to
the Borrower. The Borrower acknowledges that the Bank has no obligation to make
any Advances to the Borrower. The Bank may carry each Variable Rate Advance in
a Variable Rate Account and may carry each Fixed Rate Advance in a Fixed Rate
Account, but all Advances will constitute extensions of credit pursuant to a
single Credit Line. The Approved Amount will be determined, and may be adjusted
from time to time, by the Bank in its sole and absolute discretion.


 


b)    THE BORROWER AND EACH OTHER LOAN PARTY UNDERSTAND AND AGREE
THAT THE BANK MAY DEMAND FULL OR PARTIAL PAYMENT OF THE CREDIT LINE
OBLIGATIONS, AT ITS SOLE AND ABSOLUTE DISCRETION AND WITHOUT CAUSE, AT ANY
TIME, AND THAT NEITHER FIXED RATE ADVANCES NOR VARIABLE RATE ADVANCES ARE
EXTENDED FOR ANY SPECIFIC TERM OR DURATION.


 


c)     UNLESS DISCLOSED IN WRITING TO THE BANK AT THE TIME OF THE
APPLICATION, AND APPROVED BY THE BANK, THE BORROWER AGREES NOT TO USE THE
PROCEEDS OF ANY ADVANCE EITHER TO PURCHASE, CARRY OR TRADE IN SECURITIES OR TO
REPAY ANY DEBT (I) USED TO PURCHASE, CARRY OR TRADE IN SECURITIES OR (II) TO
ANY AFFILIATE OF THE BANK. THE BORROWER WILL BE DEEMED TO REPEAT THE AGREEMENT
IN THIS SECTION 2(C) EACH TIME IT REQUESTS AN ADVANCE.


 


d)    Prior
to the first Advance under the Credit Line, the Borrower must sign and deliver
to the Bank a Federal Reserve Form U-1 and all other documentation as the
Bank may require. The Borrower acknowledges that neither the Bank nor any of
its affiliates has advised the Borrower in any manner regarding the purposes
for which the Credit Line will be used.


 


e)     The
Borrower consents and agrees that, in connection with establishing the Credit
Line Account, approving any Advances to the Borrower or for any other purpose
associated with the Credit Line, the Bank may obtain a consumer or other credit
report from a credit reporting agency relating to the Borrower’s credit history.
Upon request by the Borrower, the Bank will inform the Borrower (i) whether
or not a consumer or other credit report was requested, and (ii) if so,
the name and address of the consumer or other credit reporting agency that
furnished the report.


 


f)     The
Borrower understands that the Bank will, directly or indirectly, pay a portion
of the interest that it receives to the Borrower’s financial advisor at UBS
Financial Services Inc. or one of its affiliates. To the extent permitted by
applicable law, the Bank may also charge the Borrower fees for establishing and
servicing the Credit Line Account.


 


g)    Following
each month in which there is activity in the Borrower’s Credit Line Account in
amounts greater than $1, the Borrower will receive an account statement showing
the new balance, the amount of any new Advances, year to date interest charges,
payments and other charges and credits that have been registered or posted to
the Credit Line Account.


 


h)    Each
of the Loan Parties understands and agrees that the Bank may, at any time, in
its sole and absolute discretion, terminate and cancel the Credit Line
regardless of whether or not an Event has occurred. In the event the Bank
terminates and cancels the Credit Line the Credit Line Obligations shall be
immediately due and payable in full. If the Credit Line Obligations are not
paid in full, the Bank shall have the right, at its option, to exercise any or
all of its remedies described in Section 10 of this Agreement.


 


3)     Terms
of Advances


 


a)     Advances
made under this Agreement will be available to the Borrower in the form, and
pursuant to procedures, as are established from time to time by the Bank in its
sole and absolute discretion. The Borrower and each Loan Party agree to
promptly provide all documents, financial or other information in connection
with any Advance as the Bank may request. Advances will be made by wire
transfer of funds to an account as specified in writing by the Borrower or by
any other method agreed upon by the Bank and the Borrower. The Borrower
acknowledges and agrees that the Bank will not make any Advance to the Borrower
unless the collateral maintenance requirements that are established by the Bank
in its sole and absolute discretion have been satisfied.


 


b)    Each
Advance made under a Premier Credit Line will be a Variable Rate Advance unless
otherwise designated as a Fixed Rate Advance in an Advance Advice sent by the
Bank to the Borrower. The Bank will not designate any Advance as a Fixed Rate
Advance unless it has been requested to do so by the Borrower (acting directly
or indirectly through the Borrower’s UBS Financial Services Inc. financial
advisor or other agent designated by the Borrower and acceptable to the Bank).
Each Advance Advice will be conclusive and binding upon the Borrower, absent
manifest error, unless the Borrower otherwise notifies the Bank in writing no
later than the close of business, New York time, on the third Business Day
after the Advance Advice is received by the Borrower.


 


c)     Each
Advance made under a Prime Credit Line will be a Variable Advance.


 


d)    Unless
otherwise agreed by the Bank (i) all Fixed Rate Advances must be in an
amount of at least $100,000, and (ii) all Variable Rate Advances taken by
wire transfer must be in an amount of at least $2,500. If the Borrower is a
natural person, the initial Variable Rate Advance under the Credit Line must be
in an amount equal to at least $25,001 (the “Initial Advance Requirement”). If
the initial Advance requested by the Borrower is made in the form of a check
drawn on the Credit Line that does not satisfy the initial Advance Requirement,
then, in addition to and not in limitation of the Bank’s rights, remedies,
powers or privileges under this Agreement or applicable law, the Bank may, in
its sole and absolute discretion


 


(i)        pay
the check drawn by the Borrower if, prior to paying that check, the Bank makes
another Advance to the Borrower, which Advance shall he in an amount not less
than $25,001; or


 


(ii)       pay
the check drawn by the Borrower; or


 


(iii)      decline
to pay (bounce) the check.


 


4

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


If the Bank elects option (ii), no
interest shall accrue on the amount of the Advance made by paying the check,
and the amount of that Advance shall be due and payable to the Bank immediately
(with or without demand by the Bank).


 


4)     Interest


 


a)     Each
Fixed Rate Advance will bear interest at a fixed rate and for the Interest
Period each as specified in the related Advance Advice. The rate of interest
payable on each Fixed Rate Advance will be determined by adding a percentage
rate to the UBS Bank USA Fixed Funding Rate, as of the date that the fixed rate
is determined.


 


b)    Each
Variable Rate Advance under a Premier Credit Line will bear interest at a
variable rate equal to LIBOR, adjusted daily, plus the percentage rate that
(unless otherwise specified by the Bank in writing) is shown on Schedule I
below for the Approved Amount of the Credit Line. For Premier Credit Lines, the
rate of interest payable on Variable Rate Advances is subject to change without
notice in accordance with fluctuations in LIBOR and in the Approved Amount. On
each day that LIBOR changes or the Approved Amount crosses one of the
thresholds that is indicated on Schedule I (or that is otherwise specified by
the Bank in writing), the interest rate on all Variable Rate Advances will
change accordingly.


 


c)     Each
Variable Rate Advance under a Prime Credit Line will bear interest at a
variable rate equal to the Prime Rate, adjusted daily, plus the percentage rate
that (unless otherwise specified by the Bank in writing) is shown on the
attached Schedule II and that corresponds to the aggregate principal amount
outstanding under the Prime Credit Line on that day. For Prime Credit Lines,
the rate of interest payable on Variable Rate Advances is subject to change
without notice in accordance with fluctuations in the Prime Rate and in the
aggregate amount outstanding under the Prime Credit Line. On each date that the
Prime Rate changes or the aggregate principal amount outstanding under the
Prime Credit Line crosses one of the thresholds that is indicated on Schedule
II (or that is otherwise specified by the Bank in writing), the interest rate
on all Variable Rate Advances will change accordingly.


 


5)     Payments


 


a)     Each Fixed Rate Advance will be due and payable in full ON
DEMAND or, if not earlier demanded by the Bank, on the last day of the
applicable Interest Period. Any Fixed Rate Advance
as to which the Bank has not made a demand for payment and that is not paid in
full or renewed, which renewal is in the sole and absolute discretion of the
Bank, (pursuant to procedures as may be established by the Bank) as another
Fixed Rate Advance on or before the last day of its Interest Period, will be
automatically renewed on that date as a U.S. dollar denominated, Variable Rate
Advance in an amount (based, in the case of any conversion of a non-U.S. dollar
denominated Fixed Rate Advance, upon the applicable, spot currency exchange
rate as of the maturity date, as determined by the Bank) equal to the unpaid
principal balance of the Fixed Rate Advance plus any accrued but unpaid
interest on the Fixed Rate Advance, which Variable Rate Advance will then
accrue additional interest at a variable rate as provided in this Agreement.


 


b)    Each Variable Rate Advance will be due and payable ON DEMAND.


 


c)     The
Borrower promises to pay the outstanding principal amount of each Advance,
together with all accrued but unpaid interest on each Advance, any and all fees
or other charges payable in connection with each Advance, on the date the principal
amount becomes due (whether by reason of demand, the occurrence of a stated
maturity date, by reason of acceleration or otherwise). The Borrower further
promises to pay interest in respect of the unpaid principal balance of each
Advance from the date the Advance is made until it is paid in full. All
interest will be computed on the basis of the number of days elapsed and a
360-day year. Interest on each Advance will be payable in arrears as follows.


 


(i)       for
Fixed Rate Advances - on the last day of the Interest Period (or if the
Interest Period is longer than three months, on the last day of each three
month period following the date of the Advance) and on each date that all or
any portion of the principal amount of the Fixed Rate Advance becomes due or is
paid, and


 


(ii)      for
Variable Rate Advances - on the twenty-second day of each month other than
December, and on the thirty-first day of December, and on each date that all or
any portion of the principal amount of the Variable Rate Advance becomes due or
is paid


 


To the extent permitted by law, and
without limiting any of the Bank’s other rights and remedies under the
Agreement, interest charges on any Advance that are not paid when due will be
treated as principal and will accrue interest at a variable rate from the date
the payment of interest was due until it is repaid in full.


 


d)    All
payments of principal, interest or other amounts payable under this Agreement
will be made in immediately available funds and in the same currency in which
the Advance was made, which unless otherwise agreed by the Bank, will be U.S.
dollars. UBS Financial Services Inc. or UBS International Inc., as applicable,
may act as collecting and servicing agent for the Bank for the Advances. All
payments will be made by wire transfer of funds to an account specified by the
Bank or by another method agreed upon by the Bank and the Borrower. Upon
receipt of all payments, the Bank will credit the same to the Credit Line
Account. The Bank shall apply the proceeds of any payments in the following
order, first to any Breakage Costs, Breakage Fee, other fees, costs of
collection and expenses, second to the outstanding principal amount of the
related Advance and third to accrued interest.


 


e)     All
payments must be made to the Bank free and clear of any and all present arid
future taxes (including withholding taxes), levies, imposts, duties,
deductions, fees, liabilities and similar charges other than those imposed on
the overall net income of the Bank. If so requested by the Bank, the Borrower
will deliver to the Bank the original or a certified copy of each receipt
evidencing payment of any taxes or, if no taxes are payable in respect of any
payment under this Agreement, a certificate from each appropriate taxing
authority, or an opinion of counsel in form and substance and from counsel
acceptable to the Bank in its sole and absolute discretion, in either case
stating that the payment is exempt from or not subject to taxes. If any taxes
or other charges are required to be withheld or deducted from any amount
payable by the Borrower under this Agreement, the amount payable will be
increased to the amount which, after deduction from the increased amount of all
taxes and other charges required to be withheld or deducted from the amount
payable, will yield to the Bank the amount stated to be payable under this
Agreement. If any of the taxes or charges are paid by the Bank, the Borrower
will reimburse the Bank on demand for the payments, together with all interest
and penalties that may be imposed by any governmental agency. None of the Bank,
UBS Financial Services Inc., UBS-I or their respective employees has provided
or will provide legal advice to the Borrower or any Loan Party regarding
compliance with (or the implications of the Credit Line and the related
guaranties and pledges under) the laws (including tax laws) of the jurisdiction
of the Borrower or any Loan Party or any other jurisdiction, The Borrower and
each Loan Party are and shall be solely responsible for, and the Bank shall
have no responsibility for, the compliance by the Loan Parties with any and all
reporting and other requirements arising under any applicable laws.


 


f)     In
no event will the total interest and fees, if any, charged under this Agreement
exceed the maximum interest rate or total fees permitted by law. In the event
any excess interest or fees are collected, the same will be refunded or
credited to the Borrower. If the amount of interest payable by the Borrower for
any period is reduced pursuant to this Section 5(f), the amount of
interest payable for each succeeding period will be increased to the maximum
rate permitted by law until the amount of the reduction has been received by
the Bank.


 


5

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


6)     Prepayments;
Breakage Charges


 


a)     The
Borrower may repay any Variable Rate Advance at any time, in whole or in part,
without penalty.


 


b)    The
Borrower may repay any Fixed Rate Advance in whole. The Borrower may not repay
any Fixed Rate Advance in part. The Borrower agrees to reimburse the Bank,
immediately upon demand, for any loss or cost (“Breakage Costs”) that the Bank
notifies the Borrower has been incurred by the Bank as a result of (i) any
payment of the principal of a Fixed Rate Advance before the expiration of the
Interest Period for the Fixed Rate Advance (whether voluntarily, as a result of
acceleration, demand or otherwise), or (ii) the Customer’s failure to take
any Fixed Rate Advance on the date agreed upon, including any loss or cost
(including loss of profit or margin) connected with the Bank’s re-employment of
the amount so prepaid or of those funds acquired by the Bank to fund the
Advance not taken on the agreed upon date.


 


Breakage Costs will be calculated by
determining the differential between the stated rate of interest (as determined
in accordance with Section 4(a) of the Agreement) for the Fixed Rate
Advance and prevailing UBS Bank USA Fixed funding Rate and multiplying the
differential by the sum of the outstanding principal amount of the Fixed Rate
Advance (or the principal amount of Fixed Rate Advance not taken by the
Borrower) multiplied by the actual number of days remaining in the Interest
Period for the Fixed Rate Advance (based upon a 360-day year). The Borrower
also agrees to promptly pay to the Bank an administrative fee (“Breakage Fee”)
in connection with any permitted or required prepayment. The Breakage Fee will
be calculated by multiplying the outstanding principal amount of the Fixed Rate
Advance (or the principal amount of Fixed Rate Advance not taken by the
Borrower) by two basis points (0.02%) (with a minimum Breakage Fee of $100,00),
Any written notice from the Bank as to the amount of the loss or cost will be
conclusive absent manifest error.


 


7)     Joint
Credit Line Account Agreement; Suspension and Cancellation


 


a)     If
more than one Person is signing this Agreement as the “Borrower”, each party (a
“Joint Borrower”) will be Jointly and severally liable for the Credit Line
Obligations, regardless of any change in business relations, divorce, legal
separation, or other legal proceedings or in any agreement that may affect
liabilities between the parties. Except as provided below for the reinstatement
of a suspended or cancelled Credit Line, and unless otherwise agreed by the
Bank in writing, the Bank may rely on, and each Joint Borrower will be
responsible for, requests for Advances, directions, instructions and other
information provided to the Bank by any Joint Borrower.


 


b)    Any
Joint Borrower may request the Bank to suspend or cancel the Credit Line by
sending the Bank a written notice of the request addressed to the Bank at the
address shown on the Borrower’s periodic Credit Line Account statements. Any
notice will become effective three Business Days after the date that the Bank
receives it, and each Joint Borrower will continue to be responsible for paying
(i) the Credit Line Obligations as of the effective date of the notice,
and (ii) all Advances that any Joint Borrower has requested but that have
not yet become part of the Credit Line Obligations as of the effective date of
the notice. No notice will release or in any other way affect the Bank’s
interest in the Collateral. All subsequent requests to reinstate credit
privileges must be signed by all Joint Borrowers comprising the Borrower,
including the Joint Borrower requesting the suspension of credit privileges.
Any reinstatement will be granted or denied in the sole and absolute discretion
of the Bank.


 


c)     All
Credit Line Obligations will become immediately due and payable in full as of
the effective date of any suspension or cancellation of the Credit Line. The
borrower will be responsible for the payment of all charges incurred on the
Advances after the effective date. The Bank will not release any Loan Party
from any of the obligations under this Agreement or any related agreement until
the Credit Line Obligations have been paid in full and this Agreement has been
terminated.


 


8)     Collateral;
Grant of Security Interest; Set-off


 


a)     To
secure payment or performance of the Credit Line Obligations, the Borrower
assigns, transfers and pledges to the Bank, and grants to the Bank a first
priority lien and security interest in the following assets and rights of the
Borrower, wherever located and whether owned now or acquired or arising in the
future. (i) each Collateral Account, (ii) any and all money, credit
balances, certificated and uncertificated securities, security entitlements,
commodity contracts, certificates of deposit, instruments, documents,
partnership interests, general intangibles, financial assets and other
investment property now or in the future credited to or carried, held or
maintained in any Collateral Account. (iii) any and all over-the- counter
options, futures, foreign exchange, swap or similar contracts between the
Borrower and either UBS Financial Services Inc. or any of its affiliates, (iv) any
and all accounts of the Borrower at the Bank or any of its affiliates, (v) any
and all supporting obligations and other rights ancillary or attributable to,
or arising in any way in connection with, any of the foregoing, and (vi) any
and all interest, dividends, distributions and other proceeds of any of the
foregoing, including proceeds of proceeds (collectively, the “Collateral”).


 


b)    The
Borrower and if applicable, any Pledgor on the Collateral Account, will take
all actions reasonably requested by the Bank to evidence, maintain and perfect
the Bank’s first priority security interest in, and to enable the Bank to
obtain control over, the Collateral and any additional collateral pledged by
the Pledgors, including but not limited to making, executing, recording and
delivering to the Bank (and authorizes the Bank to file, without the signature
of the Borrower and any Pledgor where permitted by applicable law) financing
statements and amendments thereto, control agreements, notices, assignments,
listings, powers, consents and other documents regarding the Collateral and the
Bank’s security interest in the Collateral in such Jurisdiction and in a form
as the Bank reasonably may require. Each Loan Party irrevocably authorizes and
appoints each of the Bank and UBS Financial Services Inc., as collateral agent,
to act as their agent and attorney-in-fact to file any documents or to execute
any documents in their name, with or without designation of authority. Each
Loan Party acknowledges that it will be obligated in respect of the
documentation as if it had executed the documentation itself.


 


c)     The
Borrower (and, if applicable, any other Pledgor on the Collateral Account)
agrees to maintain in a Collateral Account, at all times, Collateral having an
aggregate lending value as specified by the Bank from time to time.


 


d)    The
Bank’s sole duty for the custody, safe keeping and physical preservation of any
Collateral in its possession will be to deal with the Collateral in the same
manner as the Bank deals with similar property for its own account. The
Borrower (and, if applicable, any other Pledgor on the Collateral Account)
agrees that the Bank will have no responsibility to act on any notice of
corporate actions or events provided to holders of securities or other
investment property included in the Collateral. The Borrower (and, if
applicable, any other Pledgor on the Collateral Account) agrees to (i) notify
the Bank promptly upon receipt of any communication to holders of the investment
property disclosing or proposing any stock split, stock dividend, extraordinary
cash dividend, spin-off or other corporate action or event as a result of which
the Borrower or Pledgor would receive securities, cash (other than ordinary
cash dividends) or other assets in respect of the investment property, and (ii) immediately
upon receipt by the Borrower or Pledgor of any of these assets, cause them to
be credited to a Collateral Account or deliver them to or as directed by the
Bank as additional Collateral.


 


e)     The
Borrower (and, if applicable, any other Pledgor on the Collateral Account)
agrees that all principal, interest, dividends, distributions, premiums or
other income and other payments received by the Bank or credited to the
Collateral Account in respect of any Collateral may be held by the Bank as
additional Collateral or applied by the Bank to the Credit Line Obligations.
The Bank may create a security interest in any of the Collateral and may, at
any time and at its option, transfer any securities or other investment
property constituting Collateral to a securities account maintained in its name
or cause any Collateral Account to be redesignated or renamed in the name of
the Bank.


 


6

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


f)     The
Borrower (and, if applicable, any other Pledgor on the Collateral Account)
agrees that if a Collateral Account has margin features, the margin features
will be removed by UBS Financial Services Inc. or UBS International Inc., as
applicable, so long as there is no outstanding margin debit in the Collateral
Account.


 


g)    If
the Collateral Account permits cash withdrawals in the form of check writing,
access card charges, bill payment and/ or electronic funds transfer services
(for example, Resource Management Account®, Business Services Account BSA®,
certain Basic Investment Accounts and certain accounts enrolled in UBS
Financial Services Inc. Investment Consulting Services programs), the Borrower
(and, if applicable, any other Pledgor on the Collateral Account) agrees that
the “Withdrawal Limit” for the Collateral Account, as described in the
documentation governing the account will be reduced on an ongoing basis so that
the aggregate lending value of the Collateral remaining in the Collateral
Account following the withdrawal may not be less than the amount required
pursuant to Section 8(c).


 


h)    In
addition to the Bank’s security interest, the Borrower (and, if applicable, any
other Pledgor on the Collateral Account) agrees that the Bank will at all times
have a right to set off any or all of the Credit Line Obligations at or after
the time at which they become due, whether upon demand, at a stated maturity
date, by acceleration or otherwise, against all securities, cash, deposits or
other property in the possession of or at any time in any account maintained
with the Bank or any of its affiliates by or for the benefit of the Borrower,
whether carried individually or jointly with others. This right is in addition
to, and not in limitation of, any right the Bank may have at law or otherwise.


 


i)      The
Bank reserves the right to disapprove any Collateral and to require the
Borrower at any time to deposit into the Borrower’s Collateral Account
additional Collateral in the amount as the Bank requests or to substitute new
or additional Collateral for any Collateral that has previously been deposited
in the Collateral Account.


 


9)     Control


 


For the purpose of
giving the Bank control over each Collateral Account and in order to perfect
the Bank’s security interests in the Collateral, the Borrower and each Pledgor
on the applicable Collateral Account consents to compliance by UBS Financial
Services Inc., UBS-1 or any other securities intermediary (in any case, the “Securities
Intermediary”) maintaining a Collateral Account with entitlement orders and
instructions from the Bank (or from any assignee or successor of the Bank)
regarding the Collateral Account and any financial assets or other property
held therein without the further consent of the Borrower or any other Pledgor
on the applicable Collateral Account. Without limiting the foregoing, the
Borrower and each Pledger on the Collateral Account acknowledges. consents and
agrees that, pursuant to a control agreement entered into between the Bank and
the Securities Intermediary


 


a)     The
Securities Intermediary will comply with entitlement orders originated by the
Bank regarding any Collateral Account without further consent from the Borrower
or any Pledgor. The Securities Intermediary will treat all assets credited to a
Collateral Account, including money and credit balances, as financial assets
for purposes of Article 8 of the Uniform Commercial Code.


 


b)    In
order to enable the Borrower and any Pledgor on the applicable Collateral
Account to trade financial assets that are from time to time credited to a
Collateral Account, the Securities Intermediary may comply with entitlement
orders originated by the Borrower or any Pledgor on the applicable Collateral
Account (or if so agreed by the Bank, by an investment adviser designated by
the Borrower or any Pledgor on the applicable Collateral Account and acceptable
to the Bank and the Securities Intermediary) regarding the Collateral Account,
but only until the time that the Bank notifies the Securities Intermediary,
that the Bank is asserting exclusive control over the Collateral Account. After
the Securities Intermediary has received a notice of exclusive control and has
had a reasonable opportunity to comply, it will no longer comply with
entitlement orders originated by the Borrower or any Pledgor (or by any
investment adviser designated by the Borrower or any Pledgor) concerning the
Collateral Account. Notwithstanding the foregoing, however, and irrespective of
whether it has received any notice of exclusive control, the Securities
Intermediary will not comply with any entitlement order originated by the
Borrower or any Pledgor (or by any investment adviser designated by the
Borrower or any Pledgor) to withdraw any financial assets from a Collateral
Account or to pay any money, free credit balance or other amount owing on a
Collateral Account (other than cash withdrawals and payments not exceeding the “Withdrawal
Limit as contemplated in Section 8 (g)) without the prior consent of the
Bank.


 


10)   Remedies


 


a)     If
any of the following events (each, an “Event”) occurs


 


(i)          the
Borrower fails to pay any amount due under this Agreement,


 


(ii)         the
Borrower and/or any other relevant Loan Party fails to maintain sufficient
Collateral in a Collateral Account as required by the Bank or any Guarantor
fails to maintain collateral as required by the Bank under its Guaranty
Agreement,


 


(iii)        the
Borrower or any other Loan Party breaches or fails to perform any other
covenant, agreement, term or condition that is applicable to it under this
Agreement or any related agreement, or any representation or other statement of
the Borrower (or any Loan Party) in this Agreement or in any related agreement
is incorrect in any material respect when made or deemed made,


 


(iv)        the
Borrower or any other Loan Party dies or is declared (by appropriate authority)
incompetent or of unsound mind or is indicted or convicted of any crime or, if
not an individual, ceases to exist,


 


(v)         any
voluntary or involuntary proceeding for bankruptcy, reorganization, dissolution
or liquidation or similar action is commenced by or against the Borrower or any
other Loan Party, or a trustee in bankruptcy, receiver, conservator or
rehabilitator is appointed, or an assignment for the benefit of creditors is
made, with respect to the Borrower or any other Loan Party or its property;


 


(vi)        the
Borrower or any Loan Party is insolvent, unable to pay its debts as they fall
due, stops, suspends or threatens to stop or suspend payment of all or a
material part of its debts, begins negotiations or takes any proceeding or
other step with a view to readjustment, rescheduling or deferral of all or any
part of its indebtedness, which it would or might otherwise be unable to pay
when due, or proposes or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors,


 


(vii)       a
Collateral Account (or any account in which collateral provided by a Loan Party
is maintained) or any portion thereof is terminated, attached or subjected to a
levy,


 


(viii)      the
Borrower or any Loan Party fails to provide promptly all financial and other
information as the Bank may request from time to time,


 


(ix)         any
indebtedness of the Borrower or any other Loan Party in respect of borrowed
money (including indebtedness guarantied by the Borrower or any other Loan
Party) or in respect of any swap, forward, cap, floor, collar, option or other
derivative transaction, repurchase or similar transaction or any combination of
these transactions is not paid when due, or any event or condition causes the
indebtedness to become, or permits the holder to declare the indebtedness to
be, due and payable prior to its stated maturity,


 


(x)          final
judgment for the payment of money is rendered against Borrower (or any Loan
Party) and, within thirty days from the entry of judgment, has not been
discharged or stayed


 


7

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use Only

  	
   

  



 


Credit Line
Agreement


 


pending
appeal or has not been discharged within thirty days from the entry of a final
order of affirmance on appeal,


 


(xi)         any
legal proceeding is instituted or any other event occurs or condition exists
that in the Bank’s judgment calls into question (A) the validity or
binding effect of this Agreement or any related agreement or any of the
Borrower’s (or any other Loan Party’s) obligations under this Agreement or
under any related agreement or (B) the ability of the Borrower (or any
Loan Party) to perform its obligations under this Agreement, or under any
related agreement, or


 


(xii)        the
Bank otherwise deems itself or its security interest in the Collateral insecure
or the Bank believes in good faith that the prospect of payment or other
performance by any Loan Party is impaired.


 


then, the Credit Line Obligations will
become immediately due and payable (without demand) and the Bank may, in its
sole and absolute discretion, liquidate, withdraw or sell all or any part of
the Collateral and apply the same, as well as the proceeds of any liquidation
or sale, to any amounts owed to the Bank, including any applicable Breakage
Costs and Breakage Fee. The Bank will not be liable to any Loan Party in any
way for any adverse consequences (for tax effect or otherwise) resulting from
the liquidation of appreciated Collateral. Without limiting the generality of
the foregoing, the sale may be made in the Bank’s sole and absolute discretion
by public sale on any exchange or market where business is then usually
transacted or by private sale, and the Bank may be the purchaser at any public
or private sale. Any Collateral that may decline speedily in value or that
customarily is sold on a recognized exchange or market may be sold without
providing any Loan Party with prior notice of the sale. Each Loan Party agrees
that, for all other Collateral, two calendar days notice to the Loan Party,
sent to its last address shown in the Bank’s account records, will be deemed
reasonable notice of the time and place of any public sale or time after which
any private sale or other disposition of the Collateral may occur. Any amounts
due and not paid on any Advance following an Event will bear interest from the
day following the Event until fully paid at a rate per annum equal to the
interest rate applicable to the Advance immediately prior to the Event plus
2.00%. In addition to the Bank’s rights under this Agreement, the Bank will
have the right to exercise any one or more of the rights and remedies of a
secured creditor under the Utah Uniform Commercial Code, as then in effect, or
under any other applicable law.


 


b)    Nothing
contained in this Section 10 will limit the right of the Bank to demand
full or partial payment of the Credit Line Obligations, in its sole and
absolute discretion and without cause, at any time, whether or not an Event has
occurred and is continuing.


 


c)     All
rights and remedies of the Bank under this Agreement are cumulative and are in
addition to all other rights and remedies that the Bank may have at law or
equity or under any other contract or other writing for the enforcement of the
security interest herein or the collection of any amount due under this
Agreement.


 


d)    Any
non-exercise of rights, remedies and powers by the Bank under this Agreement
and the other documents delivered in connection with this Agreement shall not
he construed as a waiver of any rights, remedies and powers. The Bank fully
reserves its rights to invoke any of its rights, remedies and powers at any
time it may deem appropriate.


 


11)   Representations,
Warranties and Covenants by the Loan Parties


 


Each Borrower and each other Loan Party
(if applicable) makes the following representations, warranties and covenants
(and each Borrower will be deemed to have repeated each representation and
warranty each time a Borrower requests an Advance) to the Bank


 


a)     Except
for the Bank’s rights under this Agreement and the rights of the Securities
Intermediary under any account agreement, the Borrower and each relevant
Pledgor owns the Collateral, free of any interest, lien or security interest in
favor of any third party and free of any impediment to transfer,


 


b)    Each
Loan Party: (i) if a natural Person, is of the age of majority, (ii) is
authorized to execute and deliver this Agreement and to perform its obligations
under this Agreement and any related agreement, (iii) is not an employee
benefit plan, as that term is defined by the Employee Retirement Income
Security Act of 1974, or an Individual Retirement Credit Line Account (and none
of the Collateral is an asset of a plan or account), and (iv) unless the
Loan Party advises the Bank to the contrary, in writing, and provides the Bank
with a letter of approval, where required, from its employer, is not an
employee or member of any exchange or of any corporation or firm engaged in the
business of dealing, either as a broker or as principal, in securities, bills
of exchange, acceptances or other forms of commercial paper,


 


c)     Neither
the Borrower nor any Pledgor on the Collateral Account has pledged or will
pledge the Collateral or grant a security interest in the Collateral to any
party other than the Bank or the Securities Intermediary, or has permitted or
will permit the Collateral to become subject to any liens or encumbrances (other
than those of the Bank and the Securities Intermediary), during the term of
this Agreement,


 


d)    No
Loan Party is in default under any material contract, judgment, decree or order
to which it is a party or by which it or its properties may be bound,


 


e)     Each
Loan Party has duly filed all tax and information returns required to be filed
and has paid all taxes, fees, assessments and other governmental charges or
levies that have become due and payable, except to the extent such taxes or
other charges are being contested in good faith and are adequately reserved
against in accordance with GAAP.


 


f)     The
Borrower and each relevant Pledgor (i) is and at all times will continue
to be the legal and beneficial owner of all assets held in or credited to any
Collateral Account or otherwise included in the Collateral, and (ii) does
not hold any assets held in or credited to any Collateral Account or otherwise
included in the Collateral in trust or subject to any contractual or other
restrictions on use that would prevent the use of such assets to (a) repay
the Bank or (b) be pledged as Collateral in favor of the Bank,


 


The
provisions of this Section 11 will survive the termination of this
Agreement or any related agreement and the repayment of the Credit Line
Obligations.


 


12)   Indemnification;
Limitation on Liability of the Bank and the Securities Intermediary


 


Borrower agrees to indemnify and hold
harmless the Bank and the Securities Intermediary, their affiliates and their
respective directors, officers, agents and employees against any and all
claims, causes of action, liabilities, lawsuits, demands and damages, for
example, any and all court costs and reasonable attorneys fees, in any way
relating to or arising out of or in connection with this Agreement, except to the
extent caused by the Bank’s or Securities Intermediary’s breach of its
obligations under this Agreement. Neither the Bank nor the Securities
Intermediary will be liable to any party for any consequential damages arising
out of any act or omission by either of them with respect to this Agreement or
any Advance or Collateral Account. The provisions of this Section 12 will
survive the termination of this Agreement or any related agreement and the
repayment of the Credit Line Obligation.


 


13)   Acceptance
of Application and Agreement, Applicable Law


 


THIS
APPLICATION AND AGREEMENT WILL BE RECEIVED AND ACCEPTED BY BANK IN THE STATE OF
UTAH, OR IF THIS APPLICATION AND AGREEMENT IS DELIVERED TO BANK’S AGENT, UBS
FINANCIAL SERVICES INC., IT WILL BE RECEIVED AND ACCEPTED WHEN RECEIVED BY UBS
FINANCIAL SERVICES INC.’S UNDERWRITING DEPARTMENT. DELIVERY OF THE APPLICATION
AND AGREEMENT TO THE BORROWER’S FINANCIAL ADVISOR AT UBS FINANCIAL SERVICES
INC. WILL NOT BE CONSIDERED RECEIPT OR ACCEPTANCE BY BANK. ALL DECISIONS MADE
BY BANK REGARDING THE CREDIT LINE WILL BE MADE IN UTAH.


 


8

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


THIS
AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF UTAH APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN
THE STATE OF UTAH AND, IN CONNECTION WITH THE CHOICE OF LAW GOVERNING INTEREST,
THE FEDERAL LAWS OF THE UNITED STATES, EXCEPT THAT WITH RESPECT TO THE
COLLATERAL ACCOUNT AND THE BANK’S SECURITY INTEREST THEREIN, THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, INCLUDING, WITHOUT LIMITATION, THE NEW YORK UNIFORM COMMERCIAL
CODE, AND FOR PURPOSES OF THIS AGREEMENT, THE COLLATERAL ACCOUNT AND THE BANK’S
SECURITY INTEREST THEREIN, THE JURISDICTION OF UBS FINANCIAL SERVICES INC. AND
UBS-I SHALL BE DEEMED TO BE THE STATE OF NEW YORK.


 


14)   Assignment


 


This Agreement may not be assigned by the
Borrower without the prior written consent of the Bank. This Agreement will be
binding upon and inure to the benefit of the heirs, successors and permitted
assigns of the Borrower. The Bank may assign this Agreement, and this Agreement
will inure to the benefit of the Bank’s successors and assigns.


 


15)   Amendment


 


This Agreement may be amended only by the
Bank, including, but not limited to, (i) the addition or deletion of any
provision of this Agreement and (ii) the amendment of the (x) “Spread
Over LIBOR/UBS Bank USA Fixed Funding Rate” in Schedule I or (y) “Spread
Over Prime’ in Schedule II to this Agreement, at any time by sending written
notice, signed by an authorized officer of the Bank, of an amendment to the
Borrower. The amendment shall be effective as of the date established by the
Bank. This Agreement may not be amended orally. The Borrower or the Bank may
waive compliance with any provision of this Agreement, but any waiver must be
in writing and will not be deemed to be a waiver of any other provision of this
Agreement. The provisions of this Agreement constitute the entire agreement
between the Bank and the Borrower with respect to the subject matter hereof and
supersede all prior or contemporaneous agreements, proposals, understandings
and representations, written or oral, between the parties with respect to the
subject matter hereof.


 


16)   Severability


 


If any provision of this Agreement is
held to be invalid, illegal, void or unenforceable, by reason of any law, rule,
administrative order or judicial or arbitral decision, the determination will
not affect the validity of the remaining provisions of this Agreement.


 


17)   Choice
of Forum; Waiver of Jury Trial


 


a)     ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY
JUDGMENT ENTERED BY ANY COURT REGARDING THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT WILL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN
THE THIRD JUDICIAL DISTRICT COURT FOR THE STATE OF UTAH OR IN THE UNITED STATES
DISTRICT COURT FOR THE STATE OF UTAH. EACH OF THE LOAN PARTIES IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE THIRD JUDICIAL DISTRICT COURT
FOR THE STATE OF UTAH AND OF THE UNITED STATES DISTRICT COURT FOR THE STATE OF
UTAH FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH ACTION OR PROCEEDING. EACH OF THE LOAN PARTIES IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE NOW
OR IN THE FUTURE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH ACTION
OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


b)    EACH OF THE LOAN PARTIES (FOR ITSELF, ANYONE CLAIMING THROUGH
IT OR IN ITS NAME, AND ON BEHALF OF ITS EQUITY HOLDERS) IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY REGARDING ANY CLAIM BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.


 


c)     Any
arbitration proceeding between the Borrower (or any other Loan Party) and the
Securities Intermediary, regardless of whether or not based on circumstances
related to any court proceedings between the Bank and the Borrower (or the
other Loan Party), will not provide a basis for any stay of the court
proceedings.


 


d)    Nothing
in this Section 17 will be deemed to alter any agreement to arbitrate any
controversies which may arise between the Borrower (or any other Loan Party)
and UBS Financial Services Inc. or its predecessors, and any claims between the
Borrower or the Loan Party, as applicable, and UBS Financial Services Inc. or
its employees (whether or not they have acted as agents of the Bank) will be
arbitrated as provided in any agreement between the Borrower or the Loan Party,
as applicable, and UBS Financial Services Inc.


 


18)   State
Specific Provisions and Disclosures


 


a)     For
residents of Ohio:


 


The Ohio laws against discrimination
require that all creditors make credit equally available to all creditworthy
customers, and that credit reporting agencies maintain separate credit
histories on each individual upon request. The Ohio civil rights commission
administers compliance with this law.


 


b)    For
residents of Oregon:


 


NOTICE TO BORROWER: DO NOT SIGN THIS
AGREEMENT BEFORE YOU READ IT. THIS AGREEMENT PROVIDES FOR THE PAYMENT OF A
PENALTY IF YOU WISH TO REPAY A FIXED RATE ADVANCE PRIOR TO THE DATE PROVIDED
FOR REPAYMENT IN THE AGREEMENT.


 


c)     For
residents of Vermont:


 


NOTICE TO BORROWER: THE ADVANCES MADE
UNDER THIS AGREEMENT ARE DEMAND LOANS AND SO MAY BE COLLECTED BY THE
LENDER AT ANY TIME. A NEW LOAN MUTUALLY AGREED UPON AND SUBSEQUENTLY ISSUED MAY CARRY
A HIGHER OR LOWER RATE OF INTEREST.


 


NOTICE TO JOINT BORROWER: YOUR SIGNATURE
ON THE AGREEMENT MEANS THAT YOU ARE EQUALLY LIABLE FOR REPAYMENT OF THIS LOAN.
IF THE BORROWER DOES NOT PAY, THE LENDER HAS A LEGAL RIGHT TO COLLECT FROM YOU.


 


d)    For
residents of California:


 


(i)       Any
person, whether married, unmarried, or separated, may apply for separate
credit.


 


(ii)      As
required by law, you are notified that a negative credit report reflecting on
your credit record may be submitted to a credit reporting agency if you fail to
fulfill the terms of your credit obligations.


 


(iii)     The
Borrower will notify the Bank, within a  reasonable
time, of any change in the Borrower’s name, address, or employment.


 


(iv)     The
Borrower will not attempt to obtain any Advance if the Borrower knows that the
Borrower’s credit privileges under the Credit Line have been terminated or
suspended.


 


(v)      The
Borrower will notify the Bank by telephone, telegraph, letter, or any other
reasonable means that an unauthorized use of the Credit Line has occurred or
may occur as the result of the loss or theft of a credit card or other
instrument identifying the Credit Line, within a reasonable time after the


 


9

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit
  Line Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line Agreement


 


Borrower’s
discovery of the loss or theft, and will reasonably assist the Bank in
determining the facts and circumstances relating to any unauthorized use of the
Credit Line.


 


19)   Account
Agreement


 


Each Loan Party
acknowledges and agrees that this Agreement supplements their account agreement(s) with
the Securities Intermediary relating to the Collateral Account and, if
applicable, any related account management agreement(s) between the Loan
Party and the Securities Intermediary. In the event of a conflict between the
terms of this Agreement and any other agreement between the Loan Party and the
Securities Intermediary, the terms of this Agreement will prevail.


 


20)   Notices


 


Unless otherwise
required by law, all notices to a Loan Party may be oral or in writing, in the
Bank’s discretion, and if in writing, delivered or mailed by the United States
mail, or by overnight carrier or by telecopy to the address of the Loan Party
shown on the records of the Bank. Each Loan Party agrees to send notices to the
Bank, in writing, at such address as provided by the Bank from time to time.


 


10

















 


	
  

  	
   

  	
  UBS Bank USA

  Variable Credit
  Line Account Number (if applicable)

  5V                57978                CP

  Fixed Credit Line
  Account Number:  (if applicable)

  5F

  
	
   

  	
   

  	
  SS#/TIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Internal Use
  Only

  	
   

  



 


Credit Line
Agreement


 


Schedule
I to UBS Bank USA Credit Line Agreement

Schedule of Percentage Spreads Over LIBOR
or the UBS Bank USA Fixed


Funding Rate, as
applicable


 


	
  Aggregate
  Approved Amount

  	
   

  	
  Spread Over LIBOR/US Bank

  USA Fixed Funding Rate

  	
   

  
	
  $100,000
  to $249,999

  	
   

  	
  5.00

  	
  %

  
	
  $250,000
  to $499,999

  	
   

  	
  3.75

  	
  %

  
	
  $500,000
  to $999,999

  	
   

  	
  2.75

  	
  %

  
	
  $1,000,000
  to $2,499,999

  	
   

  	
  2.25

  	
  %

  
	
  $2,500,000
  to $4,999,999

  	
   

  	
  2.00

  	
  %

  
	
  $5,000,00
  to $9,999,999

  	
   

  	
  1.50

  	
  %

  
	
  $10,000,000
  and over

  	
   

  	
  1.25

  	
  %

  



 


Schedule
II to UBS Bank USA Credit Line Agreement


Schedule of Percentage
Spreads Over Prime


 


	
  Outstanding
  Amount under Credit Line

  	
   

  	
  Spread Over Prime

  	
   

  
	
  $0
  to $49,999

  	
   

  	
  3.50

  	
  %

  
	
  $50,000
  to $99,999

  	
   

  	
  3.00

  	
  %

  



 


 


NOTICE TO CO-SIGNER (Traduccion en Ingles Se Requiere Por La
Ley)


 


You are being asked to
guarantee this debt. Think carefully before you do. If the borrower doesn’t pay
the debt, you will have to. Be sure you can afford to pay if you have to, and
that you want to accept this responsibility.


 


You may have to pay to
the full amount of the debt if the borrower does not pay. You may also have to
pay late fees or collection costs, which increase this amount.


 


The creditor can collect
this debt from you without first trying to collect from the borrower. The
creditor can use the same collection methods against you that can be used
against the borrower, such as suing you, garnishing your wages, etc. If this
debt is ever in default, that fact may become a part of your credit record.


 


This notice is not the
contract that makes you liable for the debt.


 


AVISO PARA EL FIADOR (Spanish
Translation Required By Law)


 


Se
le esta pidiendo que garantice esta deuda. Pienselo con cuidado antes de
ponerse de acuerdo. Si la persona que ha pedido este prestamo no paga la deuda,
usted tendra que pagarla. Este seguro de que usted podra pagar si sea obligado
a pagarla y de que usted desea aceptar la responsabilidad.


 


Si
la persona que ha pedido el prestamo no paga la deuda, es posible que usted
tenga que pagar la suma total de la deuda, mas los cargos par tardarse en el
pago o el costo de cobranza, lo cual aumenta el total de esta suma.


 


El
acreedor (financiero) puede cobrarle a usted sin, primeramente, tratar de cobrarle
al deudor. Los mismos metodos de cobranza que pueden usarse contra el deudor,
podran usarse contra usted, tales como presentar una demanda en corte, quitar
parte de su sueldo, etc. Si alguna vez no se cumpla con la obligacion de pagar
esta deuda, se puede incluir esa informacion en la historia de credito de
usted.


 


Este
aviso no es el contrato mismo en que se le echa a usted la responsabilidad de
la deuda.