**Exhibit 10.13**

 

**PSA**

THE BOND MARKET

TRADE ASSOCIATION

 

**MASTER**

**REPURCHASE AGREEMENT**

SEPTEMBER 1996 VERSION

 

**Dated as of November 9, 2004**

 

**Between**:

 

UBSFINANCIAL SERVICES INC.

 

**And**

 

AETHERSYSTEMS INC., by FBR INVESTMENT MANAGEMENT INC., as AGENT

 

# **1.**                                      Applicability

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

 

# **2.**                                      Definitions

## (a)                                  “Actof Insolvency”, with respect to any party, (i) the commencement by such partyas debtor of any case or proceeding under any bankruptcy, insolvency,reorganization, liquidation, moratorium, dissolution, delinquency or similarlaw, or such party seeking the appointment or election of a receiver,conservator, trustee, custodian or similar official such party or anysubstantial part of its property, or the convening of any meeting of forcreditors for purposes of commencing any such case or proceeding or seekingsuch an appointment or election, (ii) the commencement of any such case orproceeding against such party, or another seeking such an appointment orelection, or the filing against a party of an application for a protectivedecree 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 inthe entry of an order for relief, such an appointment or election, the issuanceof 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 ageneral assignment for the benefit of creditors, or

 

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## (iv) the admission inwriting by such party of such party’s inability to pay such party’s debts asthey become due;

## (b)                                 “AdditionalPurchased Securities”, Securities provided by Seller to Buyer pursuant toParagraph 4 (a) hereof;

## (c)                                  “Buyer’sMargin Amount”, with respect to any Transaction as of any date, the amountobtained by application of the Buyer’s Margin Percentage to the RepurchasePrice for such Transaction as of such date;

## (d)                                 “Buyer’sMargin Percentage”, with respect to any Transaction as of any date, apercentage (which may be equal to the Seller’s Margin Percentage) agreed to byBuyer and Seller or, in the absence of any such agreement, the percentageobtained by dividing the Market Value of the Purchased Securities on thePurchase 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 allinterest, dividends or other distributions thereon;

## (g)                                 “MarginDeficit”, the meaning specified in Paragraph 4(a) hereof;

## (h)                                 “MarginExcess, the meaning specified in Paragraph 4(b) hereof;

## (i)                                     “MarginNotice Deadline”, the time agreed to by the parties in the relevantConfirmation, Annex I hereto or otherwise as the deadline for giving noticerequiring same-day satisfaction of margin maintenance obligations as providedin Paragraph 4 hereof (or, in the absence of any such agreement, the deadlinefor such purposes established in accordance with market practice);

## (j)                                     “MarketValue”, with respect to any Securities as of any date, the price for suchSecurities on such date obtained from a generally recognized source agreed toby 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 Incomecredited or transferred to, or applied to the obligations of, Seller pursuantto paragraph 5 hereof) as of such date (unless contrary to market practice forsuch Securities);

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

## (l)                                     “PricingRate”, the per annum percentage rate for determination of the PriceDifferential;

## (m)                               “PrimeRate”, the prime rate of U.S. commercial banks as published in *The Wall Street Journal* (or, if more thanone such rate is published, the average of such rates);

## (n)                                 “PurchaseDate”, the date on which Purchased Securities are to be transferred by Sellerto Buyer;

## (o)                                 “PurchasePrice”, (i) on the Purchase Date, the price at which Purchased Securities aretransferred by Seller to Buyer, and (ii) thereafter, except where Buyer andSeller agree otherwise, such price increased by the amount of any cashtransferred by Buyer to Seller pursuant to Paragraph 4(b) hereof and decreasedby

 

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

## (p)                                 “PurchasedSecurities”, the Securities transferred by Seller to Buyer in a Transactionhereunder, and any Securities substituted therefor in accordance with paragraph9 hereof. The term “Purchased Securities” with respect to any Transaction atany time also shall include Additional Purchased Securities delivered pursuantto Paragraph 4(a) hereof and shall exclude Securities returned pursuant toParagraph 4(b) hereof;

## (q)                                 “RepurchaseDate”, the date on which Seller is to repurchase the Purchased Securities fromBuyer, including any date determined by application of the provisions ofParagraph 3(c) or 11 hereof;

## (r)                                    “RepurchasePrice”, the price at which Purchased Securities are to be transferred fromBuyer to Seller upon termination of a Transaction, which will be determined ineach case (including Transactions terminable upon demand) as the sum of thePurchase Price and the price Differential as of the date of such determination;

## (s)                                  “Seller’sMargin Amount”, with respect to any Transaction as of any date, the amountobtained by application of the Seller’s Margin Percentage to the RepurchasePrice for Such Transaction as of such date;

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

 

# **3.**                                      Initiation;Confirmation; Termination

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

## (b)                                 Uponagreeing to enter into a Transaction hereunder, Buyer or Seller (or both ), asshall be agreed, shall promptly deliver to the other party a written confirmationof each Transaction (a “Confirmation”). The Confirmation shall describe thePurchased Securities (including CUSIP number, if any), identify Buyer andSeller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) theRepurchase Date, unless the Transaction is to be terminable on demand, (iv) thePricing Rate or Repurchase Price applicable to the Transaction, and (v) anyadditional terms or conditions of the Transaction not inconsistent with thisAgreement. The Confirmation, together with this Agreement, shall constituteconclusive evidence of the terms agreed between Buyer and Seller with respectto the Transaction to which the Confirmation relates, unless with respect tothe Confirmation specific objection is made promptly after receipt thereof. Inthe event of any conflict between the terms of such Confirmation and thisAgreement, this Agreement shall prevail.

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

 

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## which such terminationwill be effective. On the date specified in such demand, or on the date fixedfor termination in the case of Transactions having a fixed term, termination ofthe Transaction will be effected by transfer to Seller or its agent of thePurchased Securities and any Income in respect thereof received by Buyer (andnot previously credited or transferred to, or applied to the obligations of,Seller pursuant to Paragraph 5 hereof) against the transfer of the RepurchasePrice to an account of Buyer.

##  

# **4.**                                      MarginMaintenance

## (a)                                  Ifat any time the aggregate Market Value of all Purchased Securities subject toall Transactions in which a particular party hereto is acting as Buyer is lessthan the aggregate Buyer’s Margin Amount for all such Transactions (a “MarginDeficit”), then Buyer may by notice to Seller require Seller in suchTransactions, at Seller’s option, to transfer to Buyer cash or additionalSecurities 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 orexceed such aggregate Buyer’s Margin Amount (decreased by the amount of anyMargin Deficit as of such date arising from any Transactions in which suchBuyer is acting as Seller).

## (b)                                 Ifat any time the aggregate Market Value of all Purchased Securities subject toall Transactions in which a particular party hereto is acting as Seller exceedsthe aggregate Seller’s Margin Amount for all such Transactions at such time (a “MarginExcess”), then Seller may by notice to Buyer require Buyer in suchTransactions, at Buyer’s option, to transfer cash or Purchased Securities toSeller, so that the aggregate Market Value of the Purchased Securities, afterdeduction of any such cash or any Purchased Securities so transferred, willthereupon not exceed such aggregate Seller’s Margin Amount (increased by theamount of any Margin Excess as of such date arising from any Transactions inwhich such Seller is acting as Buyer).

## (c)                                  Ifany notice is given by Buyer or Seller under subparagraph (a) or (b) of thisParagraph at or before the Margin Notice Deadline on any business day, theparty receiving such notice shall transfer cash or Additional PurchasedSecurities as provided in such subparagraph no later than the close of businessin the relevant market on such day.  Ifany such notice is given after Margin Notice Deadline, the party receiving suchnotice shall transfer such cash or Securities no later than the close ofbusiness in the relevant market on the next business day following such notice.

## (d)                                 Anycash transferred pursuant to this Paragraph shall he attributed to suchTransactions as shall be agreed upon by Buyer and Seller.

## (e)                                  Sellerand Buyer may agree, with respect to any or all Transactions hereunder, thatthe 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 MarginExcess, as the case may be, exceeds a specified dollar amount or a specifiedpercentage of the Repurchase Prices for such Transactions (which amount orpercentage shall be agreed to by Buyer and Seller prior to entering into anysuch Transactions).

 

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

##  

# **5.**                                      IncomePayments

Seller shall be entitledto receive an amount equal to all Income paid or distributed on or in respectof the Securities that is not otherwise received by Seller, to the full extentit would be so entitled if the Securities had not been sold to Buyer. Buyershall, as the parties may agree with respect to any Transaction (or, in theabsence of any such agreement, as Buyer shall reasonably determine in itsdiscretion), on the date such Income is paid or distributed either (i) transferto or credit to the account of Seller such Income with respect to any PurchasedSecurities subject to such Transaction or (ii) with respect to Income paid incash, apply the Income payment or payments to reduce the amount, if any, to betransferred to Buyer by Seller upon termination of such Transaction.  Buyer shall not be obligated to take anyaction pursuant to the preceding sentence (A) to the extent that such actionwould result in the creation of a Margin Deficit, unless prior thereto orsimultaneously therewith Seller transfers to Buyer cash or Additional PurchasedSecurities sufficient to eliminate such Margin Deficit, or (B) if an Event ofDefault with respect to Seller has occurred and is then continuing at the timesuch Income is paid or distributed.

 

# **6.**                                      SecurityInterest

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

 

# **7.**                                      Paymentand Transfer

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

 

# **8.**                                      Segregationof Purchased Securities

To the extent required byapplicable law, all Purchased Securities in the possession of Seller shall besegregated from other securities in its possession and shall be identified assubject to this Agreement. Segregation may be accomplished by appropriate identificationon the books and records of the holder, including a financial or securitiesintermediary or clearing corporation. All of Seller’s interest in the PurchasedSecurities

 

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

 

**RequiredDisclosure for Transactions in Which the Seller Retains Custody of thePurchased Securities**

Seller is notpermitted to substitute other securities for those subject to this Agreementand therefore must keep Buyer’s securities segregated at all times, unless inthis Agreement Buyer grants Seller the right to substitute other Securities. IfBuyer grants the right to substitute, this means that Buyer’s securities willlikely be commingled with Seller’s own securities during the trading day. Buyeris advised that, during any trading day that Buyer’s securities are commingledwith Seller’s securities, they [will]*[may]** be subject to liens granted bySeller to [its clearing bank]* [third parties)** and may be used by Seller fordeliveries on other securities transactions. Whenever the securities arecommingled, Seller’s ability to resegregate substitute securities for Buyerwill be subject to Seller’s ability to satisfy [the clearing]* [any]** lien orobtain substitute securities.

 

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

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

 

# **9.**                                      Substitution

## (a)                                  Sellermay, subject to agreement with and acceptance by Buyer, substitute otherSecurities for any Purchased Securities. Such substitution shall be made bytransfer to Buyer of such other Securities and transfer to Seller of suchPurchased Securities. After substitution, the substituted Securities shall bedeemed to be Purchased Securities.

## (b)                                 InTransactions in which Seller retains custody of Purchased Securities, theparties expressly agree that Buyer shall be deemed, for purposes of subparagraph(a) of this Paragraph, to have agreed to and accepted in this Agreementsubstitution by Seller of other Securities for Purchased Securities; *provided, however,* that such otherSecurities shall have a Market Value at least equal to the Market Value of thePurchased Securities for which they are substituted.

##  

# **10.**                               Representations

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

 

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principal (or, if agreedin writing, in the form of an annex hereto or otherwise, in advance of anyTransaction by the other party hereto, as agent for a disclosed principal),(iii) the person signing this Agreement on its behalf is duly authorized to doso on its behalf (or on behalf of any such disclosed principal), (iv) it hasobtained all authorizations of any governmental body required in connectionwith this Agreement and the Transactions hereunder and such authorizations arein full force and effect (v) the execution, delivery and performance of thisAgreement 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 boundor by which any of its assets are affected. On the Purchase Date for any TransactionBuyer and Seller shall each be deemed to repeat all the foregoingrepresentations made by it.

 

# **11.**                               Eventsof Default

In the event that (i)Seller fails to transfer or Buyer fails to purchase Purchased Securities uponthe applicable Purchased Date, (ii) Seller f ails to repurchase or Buyer failsto 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 Actof Insolvency occurs with respect to Seller or Buyer, (vi) any representationmade by Seller or Buyer shall have been incorrect or untrue in any materialrespect 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 notto, perform any of its obligations hereunder (each an “Event of Default”):

## (a)                                  Thenondefaulting party may, at its option (which option shall be deemed to havebeen exercised immediately upon the occurrence of an Act of Insolvency),declare an Event of Default to have occurred hereunder and, upon the exerciseor deemed exercise of such option, the Repurchase Date for each Transactionhereunder 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 notyet occurred as of the date of such exercise or deemed exercise, suchTransaction shall be deemed immediately canceled). The nondefaulting partyshall (except upon the occurrence of an Act of Insolvency) give notice to thedefaulting party of the exercise of such option as promptly as practicable.

## (b)                                 Inall Transactions in which the defaulting party is acting as Seller, if thenondefaulting party exercises or is deemed to have exercised the optionreferred to in subparagraph (a) of this Paragraph, (i) the defaulting party’sobligations in such Transactions to repurchase all Purchased Securities, at theRepurchase Price therefore on the Repurchase Date determined in accordance withsubparagraph (a) of this Paragraph, shall thereupon become immediately due andpayable, (ii) all Income paid after such exercise or deemed exercise shall beretained by the nondefaulting party and applied to the aggregate unpaidRepurchase Prices and any other amounts owing by the defaulting partyhereunder, and (iii) the defaulting party shall immediately deliver to thenondefaulting party any Purchased Securities subject to such Transactions thenin the defaulting party’s possession or control.

## (c)                                  Inall Transactions in which the defaulting party is acting as Buyer, upon tenderby the nondefaulting party of payment of the aggregate Repurchase Prices forall such Transactions, all right, title and interest in and entitlement to allPurchased

 

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## Securities subject tosuch Transactions shall be deemed transferred to the nondefaulting party, andthe defaulting party shall deliver all such Purchased Securities to the nondefaultingparty.

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

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

### (ii)                                  asto Transactions in which the defaulting party is acting as Buyer, (A)immediately purchase, in a recognized market (or otherwise in a commerciallyreasonable manner) at such price or prices as the nondefaulting party mayreasonably deem satisfactory, securities (“Replacement Securities”) of the sameclass and amount as any Purchased Securities that are not delivered by thedefaulting party to the nondefaulting party as required hereunder or (B) in itssole discretion elect, in lieu of purchasing Replacement Securities, to bedeemed to have purchased Replacement Securities at the price therefor on suchdate, obtained from a generally recognized source or the most recent closingoffer quotation from such a source.

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

## (e)                                  Asto Transactions in which the defaulting party is acting as Buyer, thedefaulting party shall be liable to the nondefaulting party for any excess ofthe price paid (or deemed paid) by the nondefaulting party for ReplacementSecurities over the Repurchase Price for the Purchased Securities replacedthereby and for any amounts payable by the defaulting party under Paragraph 5hereof or otherwise hereunder.

## (f)                                    Forthe purposes of this Paragraph 11, the Repurchase Price for each Transactionhereunder in respect of which the defaulting party is acting as Buyer shall notincrease above the amount of such Repurchase Price for such Transaction

 

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## determined as of the dateof the exercise or deemed exercise by the nondefaulting party of the optionreferred to in subparagraph (a) of this Paragraph.

## (g)                                 Thedefaulting party shall be liable to the nondefaulting party for (i) the amountof all reasonable legal or other expenses incurred by the nondefaulting partyin connection with or as a result of an Event of Default, (ii) damages in anamount equal to the cost (including all fees, expenses and commissions) ofentering into replacement transactions and entering into or terminating hedgetransactions in connection with or as a result of an Event of Default, and(iii) any other loss, damage, cost or expense directly arising or resultingfrom the occurrence of an Event of Default in respect of a Transaction.

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

## (i)                                     Thenondefaulting party shall have, in addition to its rights hereunder, any rightsotherwise available to it under any other agreement or applicable law.

 

# **12.**                               SingleAgreement

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

 

# **13.**                               Noticesand Other Communications

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

 

# **14.**                               EntireAgreement; Severability

This Agreement shall supersedeany existing agreements between the parties containing general terms andconditions for repurchase transactions. Each provision and agreement

 

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herein shall be treatedas separate and independent from any other provision or agreement herein andshall be enforceable notwithstanding the unenforceability of any such otherprovision or agreement.

 

# **15.**                               Non-assignability;Termination

## (a)                                  Therights and obligations of the parties under this Agreement and under anyTransaction shall not be assigned by either without the prior written consentof the other party, and any such assignment without the prior written consentof the other party shall be null and void. Subject to the foregoing, thisAgreement and any Transactions shall be binding upon and shall inure to thebenefit of the parties and their respective successors and assigns. ThisAgreement may be terminated by either party upon giving written notice to theother, except that this Agreement shall, notwithstanding such notice, remainapplicable to any Transactions then outstanding.

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

 

# **16.**                               GoverningLaw

This Agreement shall begoverned by the laws of the State of New York without giving effect to theconflict of law principles thereof.

 

# **17.**                               NoWaivers, Etc.

No express or impliedwaiver of any Event of Default by either party shall constitute a waiver of anyother Event of Default and no exercise of any remedy hereunder by any partyshall 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 byany party to a departure herefrom shall be effective unless and until suchshall be in writing and duly executed by both of the parties hereto. Withoutlimitation on any of the foregoing, the failure to give a notice pursuant to Paragraph4(a) or 4(b) hereof will not constitute a waiver of any right to do so at alater date.

 

# **18.**                               Useof Employee Plan Assets

## (a)                                  Ifassets of an employee benefit plan subject to any provision of the EmployeeRetirement Income Security Act of 1974 (“ERISA”) are intended to be used byeither party hereto (the “Plan Party”) in a Transaction, the Plan Party shallso notify the other party prior to the Transaction. The Plan Party shallrepresent in writing to the other party that the Transaction does not constitutea prohibited transaction under ERISA or is otherwise exempt therefrom, and theother party may proceed in reliance thereon but shall not be required so toproceed.

## (b)                                 Subjectto the last sentence of subparagraph (a) of this Paragraph, any such Transactionshall proceed only if Seller furnishes or has furnished to Buyer its mostrecent available audited statement of its financial condition and its mostrecent subsequent unaudited statement of its financial condition.

## (c)                                  Byentering 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 financialstatements, there has been no material adverse change in Seller’s financial

 

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## condition which Sellerhas not disclosed to Buyer, and (ii) to agree to provide Buyer with futureaudited and unaudited statements of its financial condition as they are issued,so long as it is a Seller in any outstanding Transaction involving a PlanParty.

##  

# **19.**                               Intent

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

## (a)                                  Itis understood that either party’s right to liquidate Securities delivered to itin connection with Transactions hereunder or to exercise any other remediespursuant to Paragraph 11 hereof is a contractual right to liquidate suchTransaction as described in Sections 555 and 559 of Title 11 of the UnitedStates Code, as amended.

## (b)                                 Theparties agree and acknowledge that if a party hereto is an “insured depositoryinstitution,” as such term is defined in the Federal Deposit Insurance Act, asamended (“FDIA”), then each Transaction hereunder is a “qualified financialcontract,” as that term is defined in FDIA and any rules, orders or policystatements thereunder (except insofar as the types of assets subject to suchTransaction would render such definition inapplicable). Its is understood thatthis Agreement constitutes a “netting contract” as defined in and subject toTitle IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”)and each payment entitlement and payment obligation under any Transactionhereunder shall constitute a “covered contractual payment entitlement” or “coveredcontractual payment obligation”, respectively, as defined in and subject toFDIC IA (except insofar as one or both of the parties is not a “financialinstitution” as that term is defined in FDICIA).

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# **20.**                               DisclosureRelating to Certain Federal Protections

The parties acknowledgethat they have been advised that:

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

## (b)                                 inthe case of Transactions in which one of the parties is a government securitiesbroker or a Government securities dealer registered with the SEC under Section15C of the 1934 Act, SIPA will not provide protection to the other party withrespect to any Transaction hereunder; and

## (c)                                  inthe case of Transactions in which one of the parties is a financialinstitution, funds held by the financial institution pursuant to a Transactionhereunder are not a deposit and therefore are not Insured by the FederalDeposit Insurance Corporation or the National Credit Union Share InsuranceFund, as applicable.

 

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| **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

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**Annex I**

 

**Supplemental Termsand Conditions**

 

ThisAnnex I Forms a part of the PSA Master Repurchase Agreement dated as ofNovember 9, 2004 (the “Agreement”) between *UBSFINANCIAL SERVICES INC.* and *AETHERSYSTEMS INC. by FBR INVESTMENT MANAGEMENT INC., as AGENT*.Capitalized terms used but not defined in this Annex I shall have the meaningascribed to them in the Agreement.

 

**1.****                                      OtherApplicable Annexes**. In addition to this Annex I and Annex II, the followingAnnexes and any Schedules thereto shall form part of the Agreement and shall beapplicable thereunder:

 

[List Applicable Annexes]

 

o                                    [AnnexIII (International Transactions)]

 

ý                                    [AnnexIV (Party Acting as Agent)]

 

o                                    AnnexV (Margin for Forward Transaction)]

 

o                                    [AnnexVI (Buy/Sell Back Transactions)]

 

o                                    [AnnexVII (Transactions Involving Registered Investment Companies)]

 

**2.****                                     **The following2 paragraphs shall be added to Paragraph 9 of the Agreement:

 

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

 

In the eventSeller 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 ofsuch 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

 

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transactions; and/or (iii) terminating transactions or substituting securities in liketransactions with third parties in connection with or as a result of suchsubstitution or termination, and (B) to the extent Buyer determines not toenter into replacement transactions, the loss incurred by Buyer directlyarising or resulting from such substitution or termination. The foregoingamounts 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

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**Annex II**

 

Names and Addresseses for Communication between theParties

 

[List names, addresses and contact information]

 

**UBS FINANCIAL SERVICES INC..Credit Department1000 Harbor Blvd., 9th FloorWeehawken, NJ 07086**

 

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**Annex IV**

 

**Party Acting asAgent**

 

ThisAnnex IV forms a part of the Master Repurchase Agreement dated as of November9, 2004 (the “Agreement) between *UBSFINANCIAL SERVICES INC.* and *AETHERSYSTEMS INC.. BY FBR INVESTMENT MANAGEMENT INC., AS AGENT*. ThisAnnex IV sets forth the terms and conditions governing all transactions inwhich 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 inthis Annex IV shall have the meaning ascribed to them in the Agreement.

 

**1.****                                      AdditionalRepresentations**. In addition to the representations set forth inParagraph 10 of the Agreement, Agent hereby makes the followingrepresentations, which shall continue during the term of any Transaction:Principal has duly authorized Agent to execute and deliver the Agreement on itsbehalf, has the power to so authorize Agent and to enter into the Transactionscontemplated by the Agreement and to perform the obligations of Seller orBuyer, as the case may be, under such Transactions, and has taken all necessaryaction to authorize such execution and delivery by Agent and such performanceby it.

 

**2.****                                      Identificationof Principals**. Agent agrees (a) to provide the other party, prior tothe date on which the parties agree to enter into any Transaction under theAgreement, with a written list of Principals for which it intends to act asAgent (which list may be amended in writing from time to time with the consentof the other party), and (b) to provide the other party, before the close ofbusiness on the next business day after orally agreeing to enter into aTransaction, with notice of the specific Principal or Principals for whom it isacting in connection with such Transaction. If (I) Agent fails to identify such Principals or Principals prior tothe close of business on such next business day or (ii) the other party shalldetermine in its sole discretion that any Principal or Principals identified byAgent are not acceptable to it , the other party may reject and rescind anyTransaction with such Principal or Principals, return to Agent any PurchasedSecurities or portion of the Purchase Price, as the case may be, previoustransferred to the other party and refuse any further performance under suchTransaction, and Agent shall immediately return to the other party any portionthe Purchase Price or Purchased Securities, as the case may be, previouslytransferred to Agent in connection with such Transaction; provided, however,that (A) the other party shall promptly (and in any event within one businessday) notify Agent of its determination to reject and rescind such Transactionand (B) to the extent that any performance was rendered by any party under anyTransaction rejected by the other party, such party shall remain entitled toany Price Differential or other amounts that would have been payable to it withrespect to such performance if such Transaction had not been rejected. Theother party acknowledges that Agent shall not have any obligation to provide itwith confidential information regarding the financial status of its Principals:Agent agrees, however, that it will assist the other party in obtaining fromAgent’s Principals such information regarding the financial status of suchprincipals as the other party any reasonably request.

 

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

 

**4.****                                      MultiplePrincipals.**

 

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

 

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

 

(c)                                  Inthe event that Agent and the other party elect to treat Transactions under theAgreement as if they were transactions by a single Principal, the parties agreethat (i) Agent’s notice under Paragraph 2(b) of this Annex IV need onlyidentify the names of its Principals but not the portion of each Transactionallocable to each Principal’s account; (ii) the margin maintenance obligationsof Buyer and Seller under Paragraph 4 of the Agreement shall, subject to anygreater requirement imposed by applicable law, be determined on an aggregatebasis 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 ofDefault shall be determined as if all Principals were a single Seller or Buyer,as the case may be.

 

17

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(d)                                 Notwithstandingany other provision of the Agreement (including, without limitation, this AnnexIV), the parties agree that any Transactions by Agent on behalf of an employeebenefit plan under ERISA shall be treated as Transactions on behalf of separatePrincipals in accordance with Paragraph 4(b) of this Annex IV (and all marginmaintenance obligations of the parties shall be determined on aTransaction-by-Transaction basis).

 

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

 

Both Agent and itsPrincipals 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 anyof Insolvency with respect to Agent or any other Event of Default by Agentunder Paragraph 11 of the Agreement shall be deemed an Event of default bySeller 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

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**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 purposeof the purchase and sale of exempted securities (as that term is defined in theSecurities Exchange Act of 1934, as amended) in all forms, including withoutlimitation forward and standby contracts, over-the-counter options and TBAs(collectively, the “Contracts”). The Client hereby agrees with UBS FinancialServices Inc. as follows:

 

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

 

2.                                       Alltransactions shall be for the Client’s account and risk and subject toapplicable law and regulation as well as customs and usages of the marketplacewhere affected.

 

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

 

4.                                       UBSFinancial Services Inc. shall mark-to-market the Contracts carried for theaccount of the Client each week as follows: (a) For Contracts in which theClient has either contracted to purchase in the future or obligated itself topurchase in the future if UBS Financial Services Inc. so elects, the Deficitshall be computed by subtracting the market value of the securities from thecontract price or the strike price, as the case may be. (b) For Contracts inwhich the Client has either contracted to sell in the future or obligateditself to sell in the future if UBS Financial Services Inc. so elects, theDeficit shall be an amount equal to the current market value of the underlyingsecurities less the sale price or the strike price, as the case may be. (c) TheDeficit for standby commitments shall be computed by subtracting the marketvalue of the subject securities from their commitment price. (d) Contracts withyield maintenance provisions shall be marked to the market by using the couponwhich 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 againstDeficits in the Client’s account to establish the “Aggregate Deficit.”

 

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

 

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

 

7.                                       UBSFinancial Services Inc. reserves the right to change the Deficit Tolerance atany time or to eliminate it so as to require Collateral in the full amount ofthe Aggregate Deficit

 

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

 

9.                                       Ifthe parties hereto so agree, the Client may vary or substitute the form of itsCollateral delivered, but in all cases UBS Financial Services Inc. willdetermine the percentage of market value, not to exceed 100%, at whichsubstituted Acceptable Securities shall be carried, and total Collateral mustbe maintained in the amount required by the Firm. Collateral being replacedpursuant to this Section 9 shall be returned to the Client in the mannerprovided in Section 12.

 

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

 

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

 

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

 

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anycase if demand or notice of return, as the case may be, is made on or before10:00 A.M. New York City time, by 5:00 P.M. New York City time on the day somade or, if demand or notice of return, as the case may be, is made after 10:00A.M. New York City time, by 1:00 P.M. New York City time on the next BusinessDay. Collateral shall be provided or returned, as the case may be, on the thirdBusiness Day following the day on which UBS Financial Services Inc. notifiesthe 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 theform of an irrevocable letter of credit, trust receipt, escrow receipt, orpledge agreement.

 

13.                                 Ifany of the following events shall occur:

 

(a)                                  theClient fails to deliver Collateral to UBS Financial Services Inc. as requiredabove;

 

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

 

(c)                                  (i)the commencement by the Client as debtor of any case or proceeding under anybankruptcy, insolvency, reorganization, liquidation, dissolution or similarlaw, 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 itsproperty, or the appointment of such an official, (ii) the commencement of anysuch case or proceeding against the Client by another seeking such anappointment, or the filing against the Client of any application for aprotective decree under the provisions of the Securities Investor ProtectionAct of 1970, as amended which (A) is consented to or not timely contested bythe Client, (B) results in the entry of an order for relief, such anappointment, the issuance of such a protective decree or the entry of an orderhaving a similar effect, or (C) is not dismissed within 15 days, or (iii) themaking 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 debtsas they become due;

 

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

 

21

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(e)                                  theClient, if subject to regulation by the Office of Thrift Supervision (“OTS”),the Federal Deposit Insurance Corporation (“FDIC”), or any state bankingauthority, enters into a supervisory agreement, consent order or similar decreewith, or is the subject of any directive or order by, its Principal SupervisoryAgent, the Federal Home Loan Bank Board, the OTS, the FDIC, or any statebanking authority, any of which would, in any case, require the Client to makeany material change in the method of conducting its business or wouldmaterially adversely affect the performance by the Client of any term of thisAgreement or any other agreement between the Client and UBS Financial ServicesInc. or any affiliate of UBS Financial Services Inc. or the consummation by theClient of any transaction with UBS Financial Services Inc. or any affiliate ofUBS Financial Services Inc.;

 

(f)                                    Clienthas its license, charter or any other authorization necessary to conduct amaterial portion of its business withdrawn, suspended or revoked by any federalor state government or agency having jurisdiction;

 

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

 

(h)                                 anyinformation provided by or on behalf of the Client to UBS Financial ServicesInc. with respect to financial condition was not correct in any materialrespect when provided; or

 

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

 

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

 

14.                                 Asfurther security for the performance by the Client of its obligations incurredfrom time to time under this Agreement, UBS Financial Services Inc. shall havea lien on all of the Client’s property at any time held for any purpose by UBSFinancial Services Inc. or any affiliate of UBS Financial Services Inc.,including, but not limited to, property held in any other accounts of theClient with UBS Financial Services Inc. or any affiliate of UBS FinancialServices Inc, whether or not UBS Financial Services Inc. has made advances inconnection with such property. UBS Financial Services Inc. may, without notice,transfer and retransfer from time to time any money or other property betweenany such accounts. The Client shall execute

 

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suchdocuments and take such other actions as UBS Financial Services Inc. shallreasonably request in order to perfect UBS Financial Services Inc. rights withrespect to any security referred to in this paragraph (collectively, the “FurtherSecurity”).

 

15.                                 Ifafter a liquidation referred to in Section 13, an Aggregate Deficit remains inthe Client’s account, UBS Financial Services Inc. may, without prior notice ordemand, sell on the open market or otherwise all or any part of the Collateraland/or Further Security, and apply the proceeds to the Deficit. The Clientshall be liable to UBS Financial Services Inc. for any Aggregate Deficitremaining 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 andapplication of such Collateral and/or Further Security relating to suchContract or Contracts, such sale and application shall be effected pursuant tothe terms of such agreement.

 

16.                                 a)                                      ARBITRATIONIS FINAL AND BINDING ON THE PARTIES.

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

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

d)                                     THEARBITRATOR’S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGALREASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BYTHE ARBITRATORS IS STRICTLY LIMITED.

e)                                      THEPANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WEREOR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.

 

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

 

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

 

NOPERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NORSEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHOHAS INITIATED IN COURT A PUTATIVE CLASS ACTION; WHO IS A MEMBER OF A PUTATIVECLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSEDBY 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 BYTHE COURT.  SUCH FORBEARANCE TO ENFORCEAN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDERTHIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.

 

17.                                 ThisAgreement and its enforcement shall be governed by the laws of the State of NewYork applicable to agreements made and to be performed therein.

 

18.                                 ThisAgreement supersedes all prior agreements entered into between the partieshereto with respect to the transactions contemplated herein.

 

19.                                 Byexecuting this Agreement, Client acknowledges that Client has received a copyof this Agreement.

 

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**THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGE4 AT PARAGRAPH 16.**

 

IN WITNESSWHEREOF, the Parties hereto have caused this Agreement to be duly executed bytheir 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:                       |   |
|        |                              |  |  |  |  |

 

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**ANNEX I**

 

**Supplemental Termsand Conditions**

 

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**ANNEX II**

 

**Names andAddresses for Communications between Parties**

 

 

UBS Financial Services Inc.

Credit Department

1000 Harbor Blvd., 9th Floor

Weehawken, NJ 07086

 

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