Exhibit 10.5


 


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


 


	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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 last 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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “LIBOR”
  means, as of any date of determination:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (i)

  	
   

  	
  for
  Variable Rate Advances, the prevailing London Interbank Offered Rate for
  deposits in 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; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (ii)

  	
   

  	
  for
  Fixed Rate Advances of one (1) year or less, the prevailing London
  Interbank Offered Rate for deposits in U.S. dollars having a maturity
  corresponding to the length of the Interest Period applicable to the Advance
  as quoted by the Bloomberg service at 4:00 a.m. Eastern Standard Time on
  the date of the Advance.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  If
  the rate ceases to be regularly published by The Wall Street Journal or
  stated by the Bloomberg Service, as applicable, 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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “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.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
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  “Pledgor”
  means each Person who pledges to the Bank any Collateral to secure the Credit
  Line Obligations (or to secure the

  



 


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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 $250,000.


 


·                  “Prime Credit Line” means any Credit Line with
an Approved Amount less than $250,000.


 


·                  “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 of greater than one (1) year,
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


 


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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 be 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.


 


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 (i) LIBOR, if the Fixed Rate
Advance is for a period of one (1) year or less or (ii) the UBS Bank
USA Fixed Funding Rate, if the Fixed Rate Advance is for a period of greater
than one (1) year, 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


 


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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 and 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.


 


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 or 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 LIBOR 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


 


4

















 


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.


 


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-I 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 Pledgor 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)


 


5

















 


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 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 be construed as a waiver of any
rights, remedies and powers. The Bank fully reserves its rights to invoke


 


6

















 


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 Obligations.


 


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.


 


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


 


7

















 


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 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.


 


8

















 


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/UBS Bank

  	
   

  
	
   

  	
   

  	
  USA Fixed Funding Rate

  	
   

  
	
  $250,000 to $499,999

  	
   

  	
  2.750

  	
  %

  
	
  $500,000 to $999,999

  	
   

  	
  1.750

  	
  %

  
	
  $1,000,000 to $4,999,999

  	
   

  	
  1.500

  	
  %

  
	
  $5,000,000 and over

  	
   

  	
  1.250

  	
  %

  



 


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 $24,999

  	
   

  	
  3.125

  	
  %

  
	
  $25,000 to $49,999

  	
   

  	
  2.625

  	
  %

  
	
  $50,000 to $74,999

  	
   

  	
  2.125

  	
  %

  
	
  $75,000 to $99,999

  	
   

  	
  1.625

  	
  %

  
	
  $100,000 to $249,999

  	
   

  	
  1.375

  	
  %

  



 


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 per tardarse en el page o
el costo de cobranza, lo cual aumenta el total de esta suma.


 


El
acreedor (financiero) puede cobrarle a usted sin, primeramente, tratar be
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.


 


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