Exhibit 10.13


 


PSA


THE BOND MARKET


TRADE ASSOCIATION


 


MASTER


REPURCHASE AGREEMENT


SEPTEMBER 1996 VERSION


 


Dated as of November 9, 2004


 


Between:


 


UBS
FINANCIAL SERVICES INC.


 


And


 


AETHER
SYSTEMS INC., by FBR INVESTMENT MANAGEMENT INC., as AGENT


 


1.                                      Applicability


From time to time the
parties hereto may enter into transactions in which one party (“Seller”) agrees
to transfer to the other (“Buyer”) securities or other assets (“Securities”)
against the transfer of funds by Buyer, with a simultaneous agreement by Buyer
to transfer to Seller such Securities at a date certain or on demand, against
the transfer of funds by Seller. Each such transaction shall be referred to
herein as a “Transaction”, and unless otherwise agreed in writing, shall be
governed by this Agreement, including any supplemental terms or conditions
contained in Annex I hereto and in any other annexes identified herein or
therein as applicable hereunder.


 


2.                                      Definitions


(a)                                  “Act
of Insolvency”, with respect to any party, (i) the commencement by such party
as debtor of any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, moratorium, dissolution, delinquency or similar
law, or such party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official such party or any
substantial part of its property, or the convening of any meeting of for
creditors for purposes of commencing any such case or proceeding or seeking
such an appointment or election, (ii) the commencement of any such case or
proceeding against such party, or another seeking such an appointment or
election, or the filing against a party of an application for a protective
decree under the provisions of the Securities Investor Protection Act of 1970,
which (A) is consented to or not timely contested by such party, (B) results in
the entry of an order for relief, such an appointment or election, the issuance
of such a protective decree or the entry of an order having a similar effect;
or (C) is not dismissed within 15 days, (iii) the making by such party of a
general assignment for the benefit of creditors, or


 





















 


(iv) the admission in
writing by such party of such party’s inability to pay such party’s debts as
they become due;


(b)                                 “Additional
Purchased Securities”, Securities provided by Seller to Buyer pursuant to
Paragraph 4 (a) hereof;


(c)                                  “Buyer’s
Margin Amount”, with respect to any Transaction as of any date, the amount
obtained by application of the Buyer’s Margin Percentage to the Repurchase
Price for such Transaction as of such date;


(d)                                 “Buyer’s
Margin Percentage”, with respect to any Transaction as of any date, a
percentage (which may be equal to the Seller’s Margin Percentage) agreed to by
Buyer and Seller or, in the absence of any such agreement, the percentage
obtained by dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for such Transaction;


(e)                                  “Confirmation”,
the meaning specified in paragraph 3(b) hereof;


(f)                                    “Income”,
with respect to any Security at any time, any principal thereof and all
interest, dividends or other distributions thereon;


(g)                                 “Margin
Deficit”, the meaning specified in Paragraph 4(a) hereof;


(h)                                 “Margin
Excess, the meaning specified in Paragraph 4(b) hereof;


(i)                                     “Margin
Notice Deadline”, the time agreed to by the parties in the relevant
Confirmation, Annex I hereto or otherwise as the deadline for giving notice
requiring same-day satisfaction of margin maintenance obligations as provided
in Paragraph 4 hereof (or, in the absence of any such agreement, the deadline
for such purposes established in accordance with market practice);


(j)                                     “Market
Value”, with respect to any Securities as of any date, the price for such
Securities on such date obtained from a generally recognized source agreed to
by the parties or the most recent closing bid quotation from such a source,
plus accrued Income to the extent not included therein (other than any Income
credited or transferred to, or applied to the obligations of, Seller pursuant
to paragraph 5 hereof) as of such date (unless contrary to market practice for
such Securities);


(k)                                  “Price
Differential”, with respect to any Transaction as of any date, the aggregate
amount obtained by daily application of the Pricing Rate for such Transaction to
the Purchase Price for such Transaction on a 360-day-per-year basis for the
actual number of days during the period commencing on (and including) the
Purchase Date for such Transaction and ending on (but excluding) the date of
determination (reduced by any amount of such Price Differential previously paid
by Seller to Buyer with respect to such Transaction);


(l)                                     “Pricing
Rate”, the per annum percentage rate for determination of the Price
Differential;


(m)                               “Prime
Rate”, the prime rate of U.S. commercial banks as published in The Wall Street Journal (or, if more than
one such rate is published, the average of such rates);


(n)                                 “Purchase
Date”, the date on which Purchased Securities are to be transferred by Seller
to Buyer;


(o)                                 “Purchase
Price”, (i) on the Purchase Date, the price at which Purchased Securities are
transferred by Seller to Buyer, and (ii) thereafter, except where Buyer and
Seller agree otherwise, such price increased by the amount of any cash
transferred by Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased
by


 


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the amount of any cash
transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to
reduce Seller’s obligations under clause (ii) of Paragraph 5 hereof;


(p)                                 “Purchased
Securities”, the Securities transferred by Seller to Buyer in a Transaction
hereunder, and any Securities substituted therefor in accordance with paragraph
9 hereof. The term “Purchased Securities” with respect to any Transaction at
any time also shall include Additional Purchased Securities delivered pursuant
to Paragraph 4(a) hereof and shall exclude Securities returned pursuant to
Paragraph 4(b) hereof;


(q)                                 “Repurchase
Date”, the date on which Seller is to repurchase the Purchased Securities from
Buyer, including any date determined by application of the provisions of
Paragraph 3(c) or 11 hereof;


(r)                                    “Repurchase
Price”, the price at which Purchased Securities are to be transferred from
Buyer to Seller upon termination of a Transaction, which will be determined in
each case (including Transactions terminable upon demand) as the sum of the
Purchase Price and the price Differential as of the date of such determination;


(s)                                  “Seller’s
Margin Amount”, with respect to any Transaction as of any date, the amount
obtained by application of the Seller’s Margin Percentage to the Repurchase
Price for Such Transaction as of such date;


(t)                                    “Seller’s
Margin Percentage”, with respect to any Transaction as of any date, a
percentage (which may be equal to the Buyer’s Margin Percentage) agreed to
Buyer and Seller or, in the absence of any such agreement, the percentage
obtained by dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for such Transaction.


 


3.                                      Initiation;
Confirmation; Termination


(a)                                  An
agreement to enter into a Transaction may be made orally or in writing at the
initiation of either Buyer or Seller. On the Purchase Date for the Transaction,
the Purchased Securities shall be transferred to Buyer or its agent against the
transfer of the Purchase Price to an account of Seller.


(b)                                 Upon
agreeing to enter into a Transaction hereunder, Buyer or Seller (or both ), as
shall be agreed, shall promptly deliver to the other party a written confirmation
of each Transaction (a “Confirmation”). The Confirmation shall describe the
Purchased Securities (including CUSIP number, if any), identify Buyer and
Seller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the
Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the
Pricing Rate or Repurchase Price applicable to the Transaction, and (v) any
additional terms or conditions of the Transaction not inconsistent with this
Agreement. The Confirmation, together with this Agreement, shall constitute
conclusive evidence of the terms agreed between Buyer and Seller with respect
to the Transaction to which the Confirmation relates, unless with respect to
the Confirmation specific objection is made promptly after receipt thereof. In
the event of any conflict between the terms of such Confirmation and this
Agreement, this Agreement shall prevail.


(c)                                  In
the case of Transactions terminable upon demand, such demand shall be made by
Buyer or Seller, no later than such time as in customary in accordance with
market practice, by telephone or otherwise on or prior to the business day on


 


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which such termination
will be effective. On the date specified in such demand, or on the date fixed
for termination in the case of Transactions having a fixed term, termination of
the Transaction will be effected by transfer to Seller or its agent of the
Purchased Securities and any Income in respect thereof received by Buyer (and
not previously credited or transferred to, or applied to the obligations of,
Seller pursuant to Paragraph 5 hereof) against the transfer of the Repurchase
Price to an account of Buyer.


 


4.                                      Margin
Maintenance


(a)                                  If
at any time the aggregate Market Value of all Purchased Securities subject to
all Transactions in which a particular party hereto is acting as Buyer is less
than the aggregate Buyer’s Margin Amount for all such Transactions (a “Margin
Deficit”), then Buyer may by notice to Seller require Seller in such
Transactions, at Seller’s option, to transfer to Buyer cash or additional
Securities reasonably acceptable to Buyer (“Additional Purchased Securities”),
so that the cash and aggregate Market Value of the Purchased Securities,
including any such Additional Purchased Securities, will thereupon equal or
exceed such aggregate Buyer’s Margin Amount (decreased by the amount of any
Margin Deficit as of such date arising from any Transactions in which such
Buyer is acting as Seller).


(b)                                 If
at any time the aggregate Market Value of all Purchased Securities subject to
all Transactions in which a particular party hereto is acting as Seller exceeds
the aggregate Seller’s Margin Amount for all such Transactions at such time (a “Margin
Excess”), then Seller may by notice to Buyer require Buyer in such
Transactions, at Buyer’s option, to transfer cash or Purchased Securities to
Seller, so that the aggregate Market Value of the Purchased Securities, after
deduction of any such cash or any Purchased Securities so transferred, will
thereupon not exceed such aggregate Seller’s Margin Amount (increased by the
amount of any Margin Excess as of such date arising from any Transactions in
which such Seller is acting as Buyer).


(c)                                  If
any notice is given by Buyer or Seller under subparagraph (a) or (b) of this
Paragraph at or before the Margin Notice Deadline on any business day, the
party receiving such notice shall transfer cash or Additional Purchased
Securities as provided in such subparagraph no later than the close of business
in the relevant market on such day.  If
any such notice is given after Margin Notice Deadline, the party receiving such
notice shall transfer such cash or Securities no later than the close of
business in the relevant market on the next business day following such notice.


(d)                                 Any
cash transferred pursuant to this Paragraph shall he attributed to such
Transactions as shall be agreed upon by Buyer and Seller.


(e)                                  Seller
and Buyer may agree, with respect to any or all Transactions hereunder, that
the respective rights of Buyer or Seller (or both) under subparagraphs (a) and
(b) of this Paragraph may be exercised only where a Margin Deficit or a Margin
Excess, as the case may be, exceeds a specified dollar amount or a specified
percentage of the Repurchase Prices for such Transactions (which amount or
percentage shall be agreed to by Buyer and Seller prior to entering into any
such Transactions).


 


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(f)                                    Seller
and Buyer may agree, with respect to any or all Transactions hereunder, that
the respective rights of Buyer and Seller under subparagraphs (a) and (b) of
this Paragraph to require the elimination of a Margin Deficit or a Margin
Excess, as the case may be, may be exercised whenever such a Margin Deficit or
a Margin Excess exists with respect to any single Transaction hereunder
(calculated without regard to any other Transaction outstanding under this
Agreement).


 


5.                                      Income
Payments


Seller shall be entitled
to receive an amount equal to all Income paid or distributed on or in respect
of the Securities that is not otherwise received by Seller, to the full extent
it would be so entitled if the Securities had not been sold to Buyer. Buyer
shall, as the parties may agree with respect to any Transaction (or, in the
absence of any such agreement, as Buyer shall reasonably determine in its
discretion), on the date such Income is paid or distributed either (i) transfer
to or credit to the account of Seller such Income with respect to any Purchased
Securities subject to such Transaction or (ii) with respect to Income paid in
cash, apply the Income payment or payments to reduce the amount, if any, to be
transferred to Buyer by Seller upon termination of such Transaction.  Buyer shall not be obligated to take any
action pursuant to the preceding sentence (A) to the extent that such action
would result in the creation of a Margin Deficit, unless prior thereto or
simultaneously therewith Seller transfers to Buyer cash or Additional Purchased
Securities sufficient to eliminate such Margin Deficit, or (B) if an Event of
Default with respect to Seller has occurred and is then continuing at the time
such Income is paid or distributed.


 


6.                                      Security
Interest


Although the parties
intend that all Transactions hereunder be sales and purchases and not loans, in
the event any such Transactions are deemed to be loans, Seller shall be deemed
to have pledged to Buyer as security for the performance by Seller of its
obligations under each such Transaction, and shall be deemed to have granted to
Buyer a security interest in, all of the Purchased Securities with respect to
all Transactions hereunder and all Income thereon and other proceeds thereof.


 


7.                                      Payment
and Transfer


Unless otherwise mutually
agreed, all transfers of funds hereunder shall be immediately available funds.
All Securities transferred by one party hereto to the other party (i) shall be
in suitable form for transfer or shall be accompanied by duly executed
instruments of transfer or assignment in blank and such other documentation as
the party receiving possession may reasonably request, (ii) shall be
transferred on the book-entry system of a Federal Reserve Bank, or (iii) shall
be transferred by any other method mutually acceptable to Seller and Buyer.


 


8.                                      Segregation
of Purchased Securities


To the extent required by
applicable law, all Purchased Securities in the possession of Seller shall be
segregated from other securities in its possession and shall be identified as
subject to this Agreement. Segregation may be accomplished by appropriate identification
on the books and records of the holder, including a financial or securities
intermediary or clearing corporation. All of Seller’s interest in the Purchased
Securities


 


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shall pass to Buyer on the
Purchased Date and, unless otherwise agreed by Buyer and Seller, nothing in
this Agreement shall preclude Buyer from engaging in repurchase transactions
with the Purchased Securities or otherwise selling, transferring, pledging or
hypothecating the Purchased Securities, but no such transaction shall relieve
Buyer of its obligations to transfer Purchased Securities to Seller pursuant to
Paragraph 3, 4 or 11 hereof, or of Buyer’s obligation to credit or pay Income
to, or apply Income to the obligations of, Seller pursuant to Paragraph 5
hereof.


 


Required
Disclosure for Transactions in Which the Seller Retains Custody of the
Purchased Securities


Seller is not
permitted to substitute other securities for those subject to this Agreement
and therefore must keep Buyer’s securities segregated at all times, unless in
this Agreement Buyer grants Seller the right to substitute other Securities. If
Buyer grants the right to substitute, this means that Buyer’s securities will
likely be commingled with Seller’s own securities during the trading day. Buyer
is advised that, during any trading day that Buyer’s securities are commingled
with Seller’s securities, they [will]*[may]** be subject to liens granted by
Seller to [its clearing bank]* [third parties)** and may be used by Seller for
deliveries on other securities transactions. Whenever the securities are
commingled, Seller’s ability to resegregate substitute securities for Buyer
will be subject to Seller’s ability to satisfy [the clearing]* [any]** lien or
obtain substitute securities.


 










*Language to be used
under 17 C.F.R. §403.4 (e) if Seller is a government securities broker or
dealer other than a financial institution.


**Language to be used
under 17 C.F.R. §403.5 (d) if Seller is a financial institution.


 


9.                                      Substitution


(a)                                  Seller
may, subject to agreement with and acceptance by Buyer, substitute other
Securities for any Purchased Securities. Such substitution shall be made by
transfer to Buyer of such other Securities and transfer to Seller of such
Purchased Securities. After substitution, the substituted Securities shall be
deemed to be Purchased Securities.


(b)                                 In
Transactions in which Seller retains custody of Purchased Securities, the
parties expressly agree that Buyer shall be deemed, for purposes of subparagraph
(a) of this Paragraph, to have agreed to and accepted in this Agreement
substitution by Seller of other Securities for Purchased Securities; provided, however, that such other
Securities shall have a Market Value at least equal to the Market Value of the
Purchased Securities for which they are substituted.


 


10.                               Representations


Each of Buyer and Seller
represents and warrants to the other that (i) it is duly authorized to execute
and deliver this Agreement, to enter into Transactions contemplated hereunder
and to perform its obligations hereunder and has taken all necessary action to
authorize such execution, delivery and performance, (ii) it will engage in such
Transactions as


 


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principal (or, if agreed
in writing, in the form of an annex hereto or otherwise, in advance of any
Transaction by the other party hereto, as agent for a disclosed principal),
(iii) the person signing this Agreement on its behalf is duly authorized to do
so on its behalf (or on behalf of any such disclosed principal), (iv) it has
obtained all authorizations of any governmental body required in connection
with this Agreement and the Transactions hereunder and such authorizations are
in full force and effect (v) the execution, delivery and performance of this
Agreement and the Transactions hereunder will not violate any law, ordinance,
charter, by-law or rule applicable to it or any agreement by which it is bound
or by which any of its assets are affected. On the Purchase Date for any Transaction
Buyer and Seller shall each be deemed to repeat all the foregoing
representations made by it.


 


11.                               Events
of Default


In the event that (i)
Seller fails to transfer or Buyer fails to purchase Purchased Securities upon
the applicable Purchased Date, (ii) Seller f ails to repurchase or Buyer fails
to transfer Purchased Securities upon the applicable Repurchase Date, (iii)
Seller or Buyer fails to comply with Paragraph 4 hereof, (iv) Buyer fails,
after one business day’s notice, to comply with Paragraph 5 hereof, (v) an Act
of Insolvency occurs with respect to Seller or Buyer, (vi) any representation
made by Seller or Buyer shall have been incorrect or untrue in any material
respect when made or repeated or deemed to have been made or repeated, or (vii)
Seller or Buyer shall admit to the other its inability to, or its intention not
to, perform any of its obligations hereunder (each an “Event of Default”):


(a)                                  The
nondefaulting party may, at its option (which option shall be deemed to have
been exercised immediately upon the occurrence of an Act of Insolvency),
declare an Event of Default to have occurred hereunder and, upon the exercise
or deemed exercise of such option, the Repurchase Date for each Transaction
hereunder shall, if it has not already occurred, be deemed immediately to occur
(except that, in the event that the Purchase Date for any Transaction has not
yet occurred as of the date of such exercise or deemed exercise, such
Transaction shall be deemed immediately canceled). The nondefaulting party
shall (except upon the occurrence of an Act of Insolvency) give notice to the
defaulting party of the exercise of such option as promptly as practicable.


(b)                                 In
all Transactions in which the defaulting party is acting as Seller, if the
nondefaulting party exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Paragraph, (i) the defaulting party’s
obligations in such Transactions to repurchase all Purchased Securities, at the
Repurchase Price therefore on the Repurchase Date determined in accordance with
subparagraph (a) of this Paragraph, shall thereupon become immediately due and
payable, (ii) all Income paid after such exercise or deemed exercise shall be
retained by the nondefaulting party and applied to the aggregate unpaid
Repurchase Prices and any other amounts owing by the defaulting party
hereunder, and (iii) the defaulting party shall immediately deliver to the
nondefaulting party any Purchased Securities subject to such Transactions then
in the defaulting party’s possession or control.


(c)                                  In
all Transactions in which the defaulting party is acting as Buyer, upon tender
by the nondefaulting party of payment of the aggregate Repurchase Prices for
all such Transactions, all right, title and interest in and entitlement to all
Purchased


 


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Securities subject to
such Transactions shall be deemed transferred to the nondefaulting party, and
the defaulting party shall deliver all such Purchased Securities to the nondefaulting
party.


(d)                                 If
the nondefaulting party exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Paragraph, the nondefaulting party,
without prior notice to the defaulting party, may:


(i)                                     as
to Transactions in which the defaulting party is acting as Seller, (A)
immediately sell, in a recognized market (or otherwise in a commercially
reasonable manner) at such price or prices as the nondefaulting party may
reasonably deem satisfactory, any or all Purchased Securities subject to such
Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase
Prices and any other amounts owing by the defaulting party hereunder or (B) in
its sole discretion elect, in lieu all or a portion of such Purchased
Securities, to give the defaulting party credit for such Purchased Securities
in an amount equal to the price therefor on such date, obtained from a
generally recognized source or the most recent closing bid quotation from such
a source, against the aggregate unpaid Repurchase Prices and any other amounts
owing by the defaulting party hereunder; and


(ii)                                  as
to Transactions in which the defaulting party is acting as Buyer, (A)
immediately purchase, in a recognized market (or otherwise in a commercially
reasonable manner) at such price or prices as the nondefaulting party may
reasonably deem satisfactory, securities (“Replacement Securities”) of the same
class and amount as any Purchased Securities that are not delivered by the
defaulting party to the nondefaulting party as required hereunder or (B) in its
sole discretion elect, in lieu of purchasing Replacement Securities, to be
deemed to have purchased Replacement Securities at the price therefor on such
date, obtained from a generally recognized source or the most recent closing
offer quotation from such a source.


Unless otherwise
provided in Annex I, the parties acknowledge and agree that (1) the Securities
subject to any Transaction hereunder are instruments traded in a recognized
market, (2) in the absence of a generally recognized source for prices or bid
or offer quotations for any Security, the nondefaulting party may establish the
source therefor in its sole discretion and (3) all prices, bids and offers
shall be determined together with accrued Income (except to the extent contrary
to market practice with respect to the relevant Securities).


(e)                                  As
to Transactions in which the defaulting party is acting as Buyer, the
defaulting party shall be liable to the nondefaulting party for any excess of
the price paid (or deemed paid) by the nondefaulting party for Replacement
Securities over the Repurchase Price for the Purchased Securities replaced
thereby and for any amounts payable by the defaulting party under Paragraph 5
hereof or otherwise hereunder.


(f)                                    For
the purposes of this Paragraph 11, the Repurchase Price for each Transaction
hereunder in respect of which the defaulting party is acting as Buyer shall not
increase above the amount of such Repurchase Price for such Transaction


 


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determined as of the date
of the exercise or deemed exercise by the nondefaulting party of the option
referred to in subparagraph (a) of this Paragraph.


(g)                                 The
defaulting party shall be liable to the nondefaulting party for (i) the amount
of all reasonable legal or other expenses incurred by the nondefaulting party
in connection with or as a result of an Event of Default, (ii) damages in an
amount equal to the cost (including all fees, expenses and commissions) of
entering into replacement transactions and entering into or terminating hedge
transactions in connection with or as a result of an Event of Default, and
(iii) any other loss, damage, cost or expense directly arising or resulting
from the occurrence of an Event of Default in respect of a Transaction.


(h)                                 To
the extent permitted by applicable law, the defaulting party shall be liable to
the nondefaulting party for interest on any amounts owing by the defaulting
party hereunder, from the date the defaulting party becomes liable for such
amounts hereunder until such amounts are (i) paid in full by the defaulting
party or (ii) satisfied in full by the exercise of the nondefaulting party’s
rights hereunder. Interest on any sum payable by the defaulting party to the
nondefaulting party under this Paragraph 11(h) shall be at a rate equal to the
greater of the Pricing Rate for the relevant Transaction or the Prime Rate.


(i)                                     The
nondefaulting party shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable law.


 


12.                               Single
Agreement


Buyer and Seller
acknowledge that, and have entered hereinto and will enter into each
Transaction hereunder in consideration of and in reliance upon the fact that,
all Transactions hereunder constitute a single business and contractual
relationship and have been made in consideration of each other. Accordingly,
each of Buyer and Seller agrees (i) to perform all of its obligations in
respect of each Transaction hereunder, and that a default in the performance of
any such obligations shall constitute a default by it in respect of all
Transactions hereunder, (ii) that each of them shall be entitled to set off
claims and apply property held by them in respect of any Transaction against
obligations owing to them in respect of any other Transactions hereunder and
(iii) that payments, deliveries and other transfers made by either of them in
respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries and other transfers in respect of any other
Transactions hereunder, and the obligations to make any such payments,
deliveries and other transfers may be applied against each other and netted.


 


13.                               Notices
and Other Communications


Any and all notices,
statements, demands or other communications hereunder may be given by a party
to the other by mail, facsimile, telegraph, messenger or otherwise to the
address specified in Annex II hereto, or so sent to such party at any other
place specified in a notice of change of address hereafter received by the
other. All notices, demands and requests hereunder may be made orally, to be
confirmed promptly in writing, or by other communication as specified in the
preceding sentence.


 


14.                               Entire
Agreement; Severability


This Agreement shall supersede
any existing agreements between the parties containing general terms and
conditions for repurchase transactions. Each provision and agreement


 


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herein shall be treated
as separate and independent from any other provision or agreement herein and
shall be enforceable notwithstanding the unenforceability of any such other
provision or agreement.


 


15.                               Non-assignability;
Termination


(a)                                  The
rights and obligations of the parties under this Agreement and under any
Transaction shall not be assigned by either without the prior written consent
of the other party, and any such assignment without the prior written consent
of the other party shall be null and void. Subject to the foregoing, this
Agreement and any Transactions shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns. This
Agreement may be terminated by either party upon giving written notice to the
other, except that this Agreement shall, notwithstanding such notice, remain
applicable to any Transactions then outstanding.


(b)                                 Subparagraph
(a) of this Paragraph 15 shall not preclude a party from assigning, charging or
otherwise dealing with all or any part of its interest in any sum payable to it
under Paragraph 11 hereof.


 


16.                               Governing
Law


This Agreement shall be
governed by the laws of the State of New York without giving effect to the
conflict of law principles thereof.


 


17.                               No
Waivers, Etc.


No express or implied
waiver of any Event of Default by either party shall constitute a waiver of any
other Event of Default and no exercise of any remedy hereunder by any party
shall constitute a waiver of its right to exercise any other remedy hereunder.
No modification or waiver of any provision of this Agreement and no consent by
any party to a departure herefrom shall be effective unless and until such
shall be in writing and duly executed by both of the parties hereto. Without
limitation on any of the foregoing, the failure to give a notice pursuant to Paragraph
4(a) or 4(b) hereof will not constitute a waiver of any right to do so at a
later date.


 


18.                               Use
of Employee Plan Assets


(a)                                  If
assets of an employee benefit plan subject to any provision of the Employee
Retirement Income Security Act of 1974 (“ERISA”) are intended to be used by
either party hereto (the “Plan Party”) in a Transaction, the Plan Party shall
so notify the other party prior to the Transaction. The Plan Party shall
represent in writing to the other party that the Transaction does not constitute
a prohibited transaction under ERISA or is otherwise exempt therefrom, and the
other party may proceed in reliance thereon but shall not be required so to
proceed.


(b)                                 Subject
to the last sentence of subparagraph (a) of this Paragraph, any such Transaction
shall proceed only if Seller furnishes or has furnished to Buyer its most
recent available audited statement of its financial condition and its most
recent subsequent unaudited statement of its financial condition.


(c)                                  By
entering into a Transaction pursuant to this Paragraph, Seller shall be deemed
(i) to represent to Buyer that since the date of Seller’s latest such financial
statements, there has been no material adverse change in Seller’s financial


 


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condition which Seller
has not disclosed to Buyer, and (ii) to agree to provide Buyer with future
audited and unaudited statements of its financial condition as they are issued,
so long as it is a Seller in any outstanding Transaction involving a Plan
Party.


 


19.                               Intent


The parties recognize
that each Transaction is a “repurchase agreement” as that term is defined in
Section 101 of Title 11 of the United States Code, as amended (except insofar
as the type of Securities subject to such Transaction or the term of such
Transaction would render such definition inapplicable), and a “securities
contract” as that the term is defined in Section 741 of Title 11 of the United
States Code, as amended (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).


(a)                                  It
is understood that either party’s right to liquidate Securities delivered to it
in connection with Transactions hereunder or to exercise any other remedies
pursuant to Paragraph 11 hereof is a contractual right to liquidate such
Transaction as described in Sections 555 and 559 of Title 11 of the United
States Code, as amended.


(b)                                 The
parties agree and acknowledge that if a party hereto is an “insured depository
institution,” as such term is defined in the Federal Deposit Insurance Act, as
amended (“FDIA”), then each Transaction hereunder is a “qualified financial
contract,” as that term is defined in FDIA and any rules, orders or policy
statements thereunder (except insofar as the types of assets subject to such
Transaction would render such definition inapplicable). Its is understood that
this Agreement constitutes a “netting contract” as defined in and subject to
Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”)
and each payment entitlement and payment obligation under any Transaction
hereunder shall constitute a “covered contractual payment entitlement” or “covered
contractual payment obligation”, respectively, as defined in and subject to
FDIC IA (except insofar as one or both of the parties is not a “financial
institution” as that term is defined in FDICIA).


 


20.                               Disclosure
Relating to Certain Federal Protections


The parties acknowledge
that they have been advised that:


(a)                                  in
the case of Transactions in which one of the parties is a broker or dealer
registered with the 1934 (“1934 Act”), the Securities Investor Protection
Corporation has taken the position that the Provisions of the Securities
Investor Protection Act of 1970 (“SIPA”) do not protect the other party with
respect to any Transaction hereunder;


(b)                                 in
the case of Transactions in which one of the parties is a government securities
broker or a Government securities dealer registered with the SEC under Section
15C of the 1934 Act, SIPA will not provide protection to the other party with
respect to any Transaction hereunder; and


(c)                                  in
the case of Transactions in which one of the parties is a financial
institution, funds held by the financial institution pursuant to a Transaction
hereunder are not a deposit and therefore are not Insured by the Federal
Deposit Insurance Corporation or the National Credit Union Share Insurance
Fund, as applicable.


 


11





















 


	
  UBS FINANCIAL SERVICES, INC.

  	
   

  	
  {Name of Party}

  	
  AETHER SYSTEMS, INC. by FBR

  INVESTMENT MANAGEMENT,

  INC., as AGENT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Thomas J. Magdziak

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  First Vice President

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
								



 


12





















 


Annex I


 


Supplemental Terms
and Conditions


 


This
Annex I Forms a part of the PSA Master Repurchase Agreement dated as of
November 9, 2004 (the “Agreement”) between UBS
FINANCIAL SERVICES INC. and AETHER
SYSTEMS INC. by FBR INVESTMENT MANAGEMENT INC., as AGENT.
Capitalized terms used but not defined in this Annex I shall have the meaning
ascribed to them in the Agreement.


 


1.                                      Other
Applicable Annexes. In addition to this Annex I and Annex II, the following
Annexes and any Schedules thereto shall form part of the Agreement and shall be
applicable thereunder:


 


[List Applicable Annexes]


 


o                                    [Annex
III (International Transactions)]


 


ý                                    [Annex
IV (Party Acting as Agent)]


 


o                                    Annex
V (Margin for Forward Transaction)]


 


o                                    [Annex
VI (Buy/Sell Back Transactions)]


 


o                                    [Annex
VII (Transactions Involving Registered Investment Companies)]


 


2.                                      The following
2 paragraphs shall be added to Paragraph 9 of the Agreement:


 


(c)                                  In
the case of any Transaction for which the Repurchase Date is other than the
business day immediately following the Purchase Date and with respect to which
Seller does not have any existing right to substitute substantially the same
Securities for the Purchased Securities, Seller shall have the right, subject
to the proviso to this sentence, upon notice to Buyer, which notice shall be
given at or prior to 10:00am (New York time) on such business day, to
substitute substantially the same Securities for any Purchased Securities;
provided, however, that Buyer may elect, by the close of business on the
business day notice is received, or by the close of the next business day if
notice is given after 10:00am (New York time) on such day, not to accept such
substitution. In the event such substitution is accepted by Buyer, such
substitution shall be made by Seller’s transfer to Buyer of such other
Securities and Buyer’s transfer to Seller of such Purchased Securities, and
after such substitution, the substituted Securities shall be deemed to be
Purchased Securities. In the event Buyer elects not to accept such
substitution, Buyer shall offer Seller the right to terminate the Transaction.


 


In the event
Seller exercises its right to substitute or terminate under sub-paragraph (c),
Seller shall be obligated to pay to Buyer, by the close of the business day of
such substitution or termination, as the case may be, an amount equal to (A)
Buyer’s actual cost (including all fees, expenses and commissions) of (i)
entering into replacement transactions; (ii) entering into or terminating hedge


 





















 


transactions; and
/or (iii) terminating transactions or substituting securities in like
transactions with third parties in connection with or as a result of such
substitution or termination, and (B) to the extent Buyer determines not to
enter into replacement transactions, the loss incurred by Buyer directly
arising or resulting from such substitution or termination. The foregoing
amounts shall be solely determined and calculated by Buyer in good faith.


 


 


	
  UBS FINANCIAL SERVICES, INC.

  	
   

  	
  {Name of Party}

  	
  AETHER
  SYSTEMS, INC. by

  FBR
  INVESTMENT

  MANAGEMENT,

  INC., as
  AGENT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Thomas J. Magdziak

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  First Vice President

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
								



 


14





















 


Annex II


 


Names and Addresseses for Communication between the
Parties


 


[List names, addresses and contact information]


 


UBS FINANCIAL SERVICES INC..

Credit Department

1000 Harbor Blvd., 9th Floor

Weehawken, NJ 07086


 





















 


Annex IV


 


Party Acting as
Agent


 


This
Annex IV forms a part of the Master Repurchase Agreement dated as of November
9, 2004 (the “Agreement) between UBS
FINANCIAL SERVICES INC. and AETHER
SYSTEMS INC.. BY FBR INVESTMENT MANAGEMENT INC., AS AGENT. This
Annex IV sets forth the terms and conditions governing all transactions in
which a party selling securities or buying securities, as the case may be (“Agent”),
in a Transaction is acting as agent for one or more third parties (each, a “Principal”).  Capitalized terms used but not defined in
this Annex IV shall have the meaning ascribed to them in the Agreement.


 


1.                                      Additional
Representations. In addition to the representations set forth in
Paragraph 10 of the Agreement, Agent hereby makes the following
representations, which shall continue during the term of any Transaction:
Principal has duly authorized Agent to execute and deliver the Agreement on its
behalf, has the power to so authorize Agent and to enter into the Transactions
contemplated by the Agreement and to perform the obligations of Seller or
Buyer, as the case may be, under such Transactions, and has taken all necessary
action to authorize such execution and delivery by Agent and such performance
by it.


 


2.                                      Identification
of Principals. Agent agrees (a) to provide the other party, prior to
the date on which the parties agree to enter into any Transaction under the
Agreement, with a written list of Principals for which it intends to act as
Agent (which list may be amended in writing from time to time with the consent
of the other party), and (b) to provide the other party, before the close of
business on the next business day after orally agreeing to enter into a
Transaction, with notice of the specific Principal or Principals for whom it is
acting in connection with such Transaction. 
If (I) Agent fails to identify such Principals or Principals prior to
the close of business on such next business day or (ii) the other party shall
determine in its sole discretion that any Principal or Principals identified by
Agent are not acceptable to it , the other party may reject and rescind any
Transaction with such Principal or Principals, return to Agent any Purchased
Securities or portion of the Purchase Price, as the case may be, previous
transferred to the other party and refuse any further performance under such
Transaction, and Agent shall immediately return to the other party any portion
the Purchase Price or Purchased Securities, as the case may be, previously
transferred to Agent in connection with such Transaction; provided, however,
that (A) the other party shall promptly (and in any event within one business
day) notify Agent of its determination to reject and rescind such Transaction
and (B) to the extent that any performance was rendered by any party under any
Transaction rejected by the other party, such party shall remain entitled to
any Price Differential or other amounts that would have been payable to it with
respect to such performance if such Transaction had not been rejected. The
other party acknowledges that Agent shall not have any obligation to provide it
with confidential information regarding the financial status of its Principals:
Agent agrees, however, that it will assist the other party in obtaining from
Agent’s Principals such information regarding the financial status of such
principals as the other party any reasonably request.


 





















 


3.                                      Limitation
of Agent’s Liability. The parties expressly acknowledge that if the
representations of Agent under the Agreement, including this Annex IV, are true
and correct in all material respects during the term of any Transaction and
Agent otherwise complies with the provisions of this Annex IV, then (a) Agent’s
obligations under the Agreement shall not include a guarantee of performance by
its Principal or Principals and (b) the other party’s remedies shall not
include a right of setoff in respect of rights or obligations, if any, of Agent
arising in other transactions in which Agent is acting as principal.


 


4.                                      Multiple
Principals.


 


(a)                                  In
the event that Agent proposes to act for more than one Principal hereunder,
Agent and the other party shall elect whether (i) to treat Transactions under
the Agreement as transactions entered into on behalf of separate Principals or
(ii) to aggregate such Transactions as if they were transactions by a single
Principal. Failure to make such an election in writing shall be deemed an
election to treat Transactions under the Agreement as transactions on behalf of
separate Principals.


 


(b)                                 In
the event that Agent and the other party elect (or are deemed to elect) to
treat Transactions under the Agreement as transactions on behalf of separate
Principals, the parties agree that (i) Agent will provide the other party,
together with the notice described in Paragraph 2(b) of this Annex IV, notice
specifying the portion of each Transaction allocable to the account of each of
the Principals for which it is acting (to the extent that any such Transaction
is allocable to the account of more than one Principal); (ii) the portion if
any individual Transaction allocable to each Principal shall be deemed a
separate Transaction under the Agreement ; (iii) the margin maintenance
obligations of Buyer and Seller under Paragraph 4 of the Agreement shall be
determined on a Transaction-by-Transaction basis (unless the parties agree to
determine such obligations on a Principal-by-Principal basis); and (iv) Buyer’s
and Seller’s remedies under the Agreement upon the occurrence of an Event of
Default shall be determined as if Agent had entered into a separate Agreement
with the other party on behalf of each of its Principals.


 


(c)                                  In
the event that Agent and the other party elect to treat Transactions under the
Agreement as if they were transactions by a single Principal, the parties agree
that (i) Agent’s notice under Paragraph 2(b) of this Annex IV need only
identify the names of its Principals but not the portion of each Transaction
allocable to each Principal’s account; (ii) the margin maintenance obligations
of Buyer and Seller under Paragraph 4 of the Agreement shall, subject to any
greater requirement imposed by applicable law, be determined on an aggregate
basis for all Transactions entered into by Agent on behalf of any Principal;
and (iii) Buyer’s and Seller’s remedies upon the occurrence of an Event of
Default shall be determined as if all Principals were a single Seller or Buyer,
as the case may be.


 


17





















 


(d)                                 Notwithstanding
any other provision of the Agreement (including, without limitation, this Annex
IV), the parties agree that any Transactions by Agent on behalf of an employee
benefit plan under ERISA shall be treated as Transactions on behalf of separate
Principals in accordance with Paragraph 4(b) of this Annex IV (and all margin
maintenance obligations of the parties shall be determined on a
Transaction-by-Transaction basis).


 


5.                                      Interpretation
of Terms. All references to “Seller” or “Buyer”, as the case may be, in
the Agreement shall, subject to the provisions of this Annex IV (including,
among other provisions, the limitations on Agent’s liability in Paragraph 3 of
this Annex IV), be construed to reflect that (i) each Principal shall have, in
connection with any Transaction or Transactions entered into by Agent on its
behalf, the rights, responsibilities, privileges and obligations of a “Seller”
or “Buyer”, as the case may be, directly entering into such Transaction or
Transactions with the other party under the Agreement, and (ii) Agent’s
Principal or Principals have designated Agent as their sole agent for
performance of Seller’s obligations to Buyer or Buyer’s obligations to Seller,
as the case may be, and for receipt of performance by Buyer of its obligations
to Seller or Seller of its obligations to Buyer, as the case may be, in
connection with any Transaction or Transactions under the Agreement (including,
among other things, as Agent for each Principal in connection with transfers of
Securities, cash or other property and as agent for giving and receiving all
notices under the Agreement).


 


Both Agent and its
Principals shall be deemed “parties” to the Agreement and all references to a “party”
or “either party” in the Agreement shall be deemed revised accordingly (and any
of Insolvency with respect to Agent or any other Event of Default by Agent
under Paragraph 11 of the Agreement shall be deemed an Event of default by
Seller or Buyer, as the case may be).


 


 


	
  UBS FINANCIAL SERVICES, INC.

  	
   

  	
  {Name of Party}

  	
  AETHER SYSTEMS, INC. by

  FBR INVESTMENT MANAGEMENT,

  INC., as AGENT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
									



 


18





















 


UBS FINANCIAL SERVICES INC.


 


MARK-TO-MARKET AGREEMENT


 


In consideration of UBS Financial Services Inc.
carrying an account or accounts for the undersigned (“Client”) for the purpose
of the purchase and sale of exempted securities (as that term is defined in the
Securities Exchange Act of 1934, as amended) in all forms, including without
limitation forward and standby contracts, over-the-counter options and TBAs
(collectively, the “Contracts”). The Client hereby agrees with UBS Financial
Services Inc. as follows:


 


1.                                       All
transactions for the Client’s account shall be subject to the following terms
and conditions, in addition to such terms and conditions as are contained in
the documentation relating to particular Contracts.


 


2.                                       All
transactions shall be for the Client’s account and risk and subject to
applicable law and regulation as well as customs and usages of the marketplace
where affected.


 


3.                                       UBS
Financial Services Inc. shall establish a mark-to-market review for the Client’s
account whereby the difference will be determined between the current market
value of each security relating to or underlying a Contract and the net
contract, strike or commitment price of such security. A difference which would
result in a debit to the Client’s account is hereinafter called a “Deficit.”


 


4.                                       UBS
Financial Services Inc. shall mark-to-market the Contracts carried for the
account of the Client each week as follows: (a) For Contracts in which the
Client has either contracted to purchase in the future or obligated itself to
purchase in the future if UBS Financial Services Inc. so elects, the Deficit
shall be computed by subtracting the market value of the securities from the
contract price or the strike price, as the case may be. (b) For Contracts in
which the Client has either contracted to sell in the future or obligated
itself to sell in the future if UBS Financial Services Inc. so elects, the
Deficit shall be an amount equal to the current market value of the underlying
securities less the sale price or the strike price, as the case may be. (c) The
Deficit for standby commitments shall be computed by subtracting the market
value of the subject securities from their commitment price. (d) Contracts with
yield maintenance provisions shall be marked to the market by using the coupon
which would result in the greatest economic advantage to the deliverer;
provided that the price of the converted contract shall not exceed par whenever
“par cap” provisions apply. (e) Unrealized gains shall be offset against
Deficits in the Client’s account to establish the “Aggregate Deficit.”


 


5.                                       UBS
Financial Services Inc. shall establish an amount of credit it will extend to
the Client in reference to the mark-to-market for each account (the “Deficit
Tolerance”). When the Client’s account has an Aggregate Deficit resulting from
any mark-to-market, upon request by UBS Financial Services Inc, the Client
shall furnish collateral (as defined below) in an amount equal to the excess of
the Aggregate Deficit over the Deficit Tolerance (the “Excess Deficit”).


 





















 


6.                                       UBS
Financial Services Inc. by written or oral notice to the Client may request
that the Client deposit collateral in a form acceptable to UBS Financial
Services Inc. (the “Collateral”). Deposits of Collateral shall be made in the
manner provided in Section 12. Collateral shall consist of (i) U.S. dollars,
(ii) securities issued by the Department of the Treasury of the United States
and such other securities as the parties hereto may mutually agree (“Acceptable
Securities”), (iii) one or more irrevocable letters of credit issued by a bank
or banks organized and supervised under the laws of the United States or any
State therein, each such bank having a combined capital and surplus of at least
$100 million, and (iv) government securities trust or escrow receipts or
separately executed pledge agreements, in each case acceptable to UBS Financial
Services Inc. All Collateral shall be applied against the Client’s Excess
Deficit with any excess Collateral returnable upon request by the Client in the
manner provided in Section 12. Except as provided in Section 11, all interest,
dividends and other distributions in respect of the Collateral shall be added
to the Collateral.


 


7.                                       UBS
Financial Services Inc. reserves the right to change the Deficit Tolerance at
any time or to eliminate it so as to require Collateral in the full amount of
the Aggregate Deficit


 


8.                                       UBS
Financial Services Inc.’s right to request Collateral shall be exercised in its
sole discretion. The failure of UBS Financial Services Inc. to notify the
Client of the amount of any Excess Deficit shall not operate to change the
terms and conditions of this Agreement in any manner or limit UBS Financial
Services Inc. right to request and receive Collateral at a later date.


 


9.                                       If
the parties hereto so agree, the Client may vary or substitute the form of its
Collateral delivered, but in all cases UBS Financial Services Inc. will
determine the percentage of market value, not to exceed 100%, at which
substituted Acceptable Securities shall be carried, and total Collateral must
be maintained in the amount required by the Firm. Collateral being replaced
pursuant to this Section 9 shall be returned to the Client in the manner
provided in Section 12.


 


10.                                 UBS
Financial Services Inc. shall not borrow, pledge, repledge, hypothecate,
rehypothecate, loan or otherwise use for its own purposes any Collateral (other
than cash Collateral) it holds hereunder without the consent of the Client,
except as otherwise specified herein. UBS Financial Services Inc. shall
segregate and appropriately identify on its books as belonging to the Client
all Acceptable Securities held as Collateral.


 


11.                                 When
Collateral has been provided to UBS Financial Services Inc. by the Client in
the form of U.S. dollars, the Client shall be entitled to receive interest
thereon from UBS Financial Services Inc. Interest shall be calculated at the
bid of the daily closing overnight rate for federal funds as determined by UBS
Financial Services Inc. All interest due shall be paid on a monthly basis or
upon final release of all Collateral. Such payments of interest shall be made
in immediately available funds via the Federal Reserve wire system.


 


12.                                 Unless
otherwise agreed in writing by UBS Financial Services Inc. and the Client, all
calls for the provision of Collateral must be met, and any return of Collateral
shall be made, in the case of cash, by wire transfer of federal funds or
delivery of a federal funds check, or, in the case of Acceptable Securities,
(i) by delivery over the Federal Reserve wire system; (ii) by delivery through
a depository; or (iii) by physical delivery to UBS Financial Services Inc., and
in


 


20





















 


any
case if demand or notice of return, as the case may be, is made on or before
10:00 A.M. New York City time, by 5:00 P.M. New York City time on the day so
made or, if demand or notice of return, as the case may be, is made after 10:00
A.M. New York City time, by 1:00 P.M. New York City time on the next Business
Day. Collateral shall be provided or returned, as the case may be, on the third
Business Day following the day on which UBS Financial Services Inc. notifies
the Client that additional Collateral must be provided, or shall be returned,
as the case may be, in the case of Collateral being provided or returned in the
form of an irrevocable letter of credit, trust receipt, escrow receipt, or
pledge agreement.


 


13.                                 If
any of the following events shall occur:


 


(a)                                  the
Client fails to deliver Collateral to UBS Financial Services Inc. as required
above;


 


(b)                                 the
Client repudiates or defaults in the performance of any other of its
obligations hereunder, or under any other agreement between UBS Financial
Services Inc. and the Client or between the Client and any affiliate of UBS
Financial Services Inc. (whether now existing or hereafter entered into), in a
material respect (including but not limited to any failure to make any payment
to UBS Financial Services Inc. of its affiliate when due);


 


(c)                                  (i)
the commencement by the Client as debtor of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar
law, or a request by the Client for the appointment of a receiver, trustee,
custodian or similar official for the Client or for any substantial part of its
property, or the appointment of such an official, (ii) the commencement of any
such case or proceeding against the Client by another seeking such an
appointment, or the filing against the Client of any application for a
protective decree under the provisions of the Securities Investor Protection
Act of 1970, as amended which (A) is consented to or not timely contested by
the Client, (B) results in the entry of an order for relief, such an
appointment, the issuance of such a protective decree or the entry of an order
having a similar effect, or (C) is not dismissed within 15 days, or (iii) the
making by the Client of a general assignment for the benefit of creditors or
(iv) the admission in writing by the Client of its inability to pay its debts
as they become due;


 


(d)                                 the
Client suspends the transaction of its usual business or any material portion
thereof, or is dissolved or is a party, other than the surviving party, to a
merger or consolidation (other than a merger or consolidation with an affiliate
of the Client, and other than a merger or consolidation with a person formed or
surviving such merger or consolidation that has assumed, either expressly or by
operation of law, all of the obligations of the Client hereunder and under any
other agreement between the Client and UBS Financial Services Inc.);


 


21





















 


(e)                                  the
Client, if subject to regulation by the Office of Thrift Supervision (“OTS”),
the Federal Deposit Insurance Corporation (“FDIC”), or any state banking
authority, enters into a supervisory agreement, consent order or similar decree
with, or is the subject of any directive or order by, its Principal Supervisory
Agent, the Federal Home Loan Bank Board, the OTS, the FDIC, or any state
banking authority, any of which would, in any case, require the Client to make
any material change in the method of conducting its business or would
materially adversely affect the performance by the Client of any term of this
Agreement or any other agreement between the Client and UBS Financial Services
Inc. or any affiliate of UBS Financial Services Inc. or the consummation by the
Client of any transaction with UBS Financial Services Inc. or any affiliate of
UBS Financial Services Inc.;


 


(f)                                    Client
has its license, charter or any other authorization necessary to conduct a
material portion of its business withdrawn, suspended or revoked by any federal
or state government or agency having jurisdiction;


 


(g)                                 the
Client’s trading rights or other privileges are suspended or terminated by any
self-regulatory organization or agency or any securities or options exchange;


 


(h)                                 any
information provided by or on behalf of the Client to UBS Financial Services
Inc. with respect to financial condition was not correct in any material
respect when provided; or


 


(i)                                     a
writ of attachment is levied upon one or more of the Client’s accounts
maintained with UBS Financial Services Inc. or any of its affiliates;


 


then
UBS Financial Services Inc. may, after prior notice and demand for full payment
of amounts then due and owing to UBS Financial Services Inc. from the Client
(which may be given orally), liquidate any securities (other than securities
held as Collateral or Further Security) held in the Client’s account in
connection with the performance of a Contract, including but not limited to
cover held in connection with a covered call option, such liquidation being
effected for the account and risk of the Client in the open market or
otherwise; provided, however, that if an agreement between the
Client and UBS Financial Services Inc. relating to any particular Contract or
Contracts provides for the liquidation of such positions relating to such
Contract or Contracts, such liquidation shall be effected pursuant to the terms
of such agreement.


 


14.                                 As
further security for the performance by the Client of its obligations incurred
from time to time under this Agreement, UBS Financial Services Inc. shall have
a lien on all of the Client’s property at any time held for any purpose by UBS
Financial Services Inc. or any affiliate of UBS Financial Services Inc.,
including, but not limited to, property held in any other accounts of the
Client with UBS Financial Services Inc. or any affiliate of UBS Financial
Services Inc, whether or not UBS Financial Services Inc. has made advances in
connection with such property. UBS Financial Services Inc. may, without notice,
transfer and retransfer from time to time any money or other property between
any such accounts. The Client shall execute


 


22





















 


such
documents and take such other actions as UBS Financial Services Inc. shall
reasonably request in order to perfect UBS Financial Services Inc. rights with
respect to any security referred to in this paragraph (collectively, the “Further
Security”).


 


15.                                 If
after a liquidation referred to in Section 13, an Aggregate Deficit remains in
the Client’s account, UBS Financial Services Inc. may, without prior notice or
demand, sell on the open market or otherwise all or any part of the Collateral
and/or Further Security, and apply the proceeds to the Deficit. The Client
shall be liable to UBS Financial Services Inc. for any Aggregate Deficit
remaining after such sale and application; provided, however,
that if an agreement between the Client and UBS Financial Services Inc.
relating to any particular Contract or Contracts provides for the sale and
application of such Collateral and/or Further Security relating to such
Contract or Contracts, such sale and application shall be effected pursuant to
the terms of such agreement.


 


16.                                 a)                                      ARBITRATION
IS FINAL AND BINDING ON THE PARTIES.


b)                                     THE
PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT
TO JURY TRIAL.


c)                                      PRE-ARBITRATION
DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.


d)                                     THE
ARBITRATOR’S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL
REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY
THE ARBITRATORS IS STRICTLY LIMITED.


e)                                      THE
PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE
OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.


 


ANY
AND ALL CONTROVERSIES WHICH MAY ARISE BETWEEN THE PARTIES CONCERNING ANY
ACCOUNT, TRANSACTION, DISPUTE OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF
THIS OR ANY OTHER AGREEMENT, WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO
THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS
AGREEMENT SHALL BE HELD UNDER AND PURSUANT TO AND BE GOVERNED BY THE FEDERAL
ARBITRATION ACT, AND SHALL BE CONDUCTED BEFORE AN ARBITRATION PANEL CONVENED BY
THE NEW YORK STOCK EXCHANGE, INC. OR THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC.  THE PARTIES MAY ALSO
SELECT ANY OTHER NATIONAL SECURITY EXCHANGE’S ARBITRATION FORUM UPON WHICH UBS
FINANCIAL SERVICES INC. IS LEGALLY REQUIRED TO ARBITRATE THE CONTROVERSY WITH
THE CLIENT, INCLUDING, WHERE APPLICABLE, THE MUNICIPAL SECURITIES RULE-MAKING
BOARD.  SUCH ARBITRATION SHALL BE
GOVERNED BY THE RULES OF THE ORGANIZATION CONVENING THE PANEL.  THE CLIENT MAY ELECT IN THE FIRST INSTANCE
THE ARBITRATION FORUM, BUT IF THE CLIENT FAILS TO MAKE SUCH ELECTION, BY
REGISTERED LETTER OR TELEGRAM ADDRESSED TO UBS FINANCIAL SERVICES INC. AT UBS
FINANCIAL SERVICES INC.’S MAIN OFFICE, BEFORE THE EXPIRATION OF FIVE DAYS (5)
AFTER RECEIPT OF A WRITTEN REQUEST FROM UBS FINANCIAL


 


23





















 


SERVICES
INC. TO MAKE SUCH ELECTION, THEN UBS FINANCIAL SERVICES INC. MAY MAKE SUCH
ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE
FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT OF
COMPETENT JURISDICTION.


 


NO
PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR
SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO
HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; WHO IS A MEMBER OF A PUTATIVE
CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED
BY THE PUTATIVE CLASS ACTION UNTIL: (I) THE CLASS CERTIFICATION IS DENIED; (II)
THE CLASS IS DECERTIFIED; OR (III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY
THE COURT.  SUCH FORBEARANCE TO ENFORCE
AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER
THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.


 


17.                                 This
Agreement and its enforcement shall be governed by the laws of the State of New
York applicable to agreements made and to be performed therein.


 


18.                                 This
Agreement supersedes all prior agreements entered into between the parties
hereto with respect to the transactions contemplated herein.


 


19.                                 By
executing this Agreement, Client acknowledges that Client has received a copy
of this Agreement.


 


24





















 


THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGE
4 AT PARAGRAPH 16.


 


IN WITNESS
WHEREOF, the Parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the 9th day of June 2003.


 


	
   

  	
  UBS FINANCIAL
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Thomas J.
  Magdziak

  
	
   

  	
  Title:

  	
  First Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 





















 


ANNEX I


 


Supplemental Terms
and Conditions


 





















 


ANNEX II


 


Names and
Addresses for Communications between Parties


 


 


UBS Financial Services Inc.


Credit Department


1000 Harbor Blvd., 9th Floor


Weehawken, NJ 07086