Exhibit 10.12


 


PSA


THE BOND MARKET


TRADE ASSOCIATION


 


MASTER


REPURCHASE AGREEMENT


SEPTEMBER 1996 VERSION


 


Dated as of October
18, 2004


 


Between:


 


Aether Systems, Inc. by FBR Investment Management, Inc., as
Agent


 


and


 


Daiwa Securities America Inc. (“Counterparty”)


 


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 for such party or any substantial part
of its property, or the convening of any meeting of 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;


 


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(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 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 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.


 


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.


 


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(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 is customary in accordance with
market practice, by telephone or otherwise on or prior to the business day on
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


 


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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 the 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 be 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).


 


(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.


 


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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 in 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 a clearing corporation. All of Seller’s interest in the
Purchased Securities shall pass to Buyer on the Purchase 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 to 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.


 


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**          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 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 and
(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 Purchase Date,
(ii) Seller fails 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


 


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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 therefor 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 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 of selling 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


 


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(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
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
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.


 


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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 end agreement 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 party 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


 


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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
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


(a)                                  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


 


11





















 


such Transaction would render such definition
inapplicable), and a “securities contract” as that 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).


 


(b)                                 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.


 


(c)                                  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 type of assets subject to such
Transaction would render such definition inapplicable).


 


(d)                                 It
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 FDICIA (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 Securities and Exchange Commission (“SEC”) under Section 15
of the Securities Exchange Act of 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.


 


12





















 


	
  Aether Systems, Inc. by FBR
  Investment

  Management, Inc., as agent

  	
   

  	
  Daiwa Securities America Inc.  

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  



 


As
further specified in Annex IV hereto, FBR Investment Management, Inc. is acting
solely as agent for Aether Systems, Inc. (“Aether”) and not as principal in any
transactions.  Subject to Agent’s
representations set forth in the Letter of Trading Authorization issued to
Daiwa Securities America Inc. (“Daiwa”) and dated June 15, 2004, Agent, in such
capacity as ‘Agent’, shall have no liability to Daiwa whatsoever for any of
Aether’s obligations hereunder or otherwise, including without limitations for
any Transaction entered into by the Agent on Aether’s behalf hereunder, or for
margin calls, maintenance calls or settlement of Transactions.


 


13





















 


ANNEX I


 


Supplemental Terms
and Conditions


 


This
Annex I forms a part of the Master Repurchase Agreement dated as of October 18, 2004 (the “Agreement”)
between Aether Systems, Inc. by FBR
Investment Management, Inc., as Agent (“Party A”), and Daiwa Securities America Inc. (“Party B”).
Capitalized terms used but not defined in this Annex I shall have the meanings
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 a part of this Agreement and shall
be applicable thereunder:


 


(Please check as
appropriate)


o
Annex III (International Transactions)


ý
Annex IV (Party Acting as Agent)


o
Annex V (Margin for Forward Transactions)


o
Annex VI (Buy/Sell Transactions)


o
Annex VII (Transactions Involving Registered Investment Companies)


 


o
No additional annexes apply.


 


2.                                       The
parties agree that each may electronically record all telephone conversations
between them.


 


3.                                       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 am (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 am (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 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.


 


(d)                                 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.


 


15





















 


ANNEX II


 


NAMES AND
ADDRESSES FOR COMMUNICATIONS BETWEEN PARTIES


 


1)                                      All
communications with Daiwa Securities America Inc. will be directed to:


 


Daiwa Securities America Inc.


Financial Square, 32 Old Slip


New York, NY 10005


Attn: Repo Desk


Tel: 212-612-6540


Fax: 212-612-7129


 


2)                                      All communications with Aether Systems, Inc. by FBR
Investment Management, Inc., as Agent will be directed to:


 


Aether Systems, Inc.


11500 Cronridge Dr.


Owings Mills, MD 21117


Attn: Steven Bass


Tel: 443-394-5250


Fax: 443-356-8699


 


FBR Investment Management, Inc.


1001 Nineteenth Street North


Arlington, VA 22209


Attn: Brian Bowers


Tel: 703-469-1148


Fax: 703-312-9721


 





















 


ANNEX III


 


International
Transactions


 


This
Annex III (including any Schedules hereto) forms a part of the Master
Repurchase Agreement dated as of                  
(the “Agreement”) between                  
and Daiwa Securities America Inc. 
Capitalized terms used but not defined in this Annex III shall have the
meanings ascribed to them in the Agreement.


 


1.                                      Definitions.  For purposes of the Agreement and this Annex
III:


 


(a)          The
following terms shall have the following meanings:


 


“Base
Currency”, United States dollars or such other currency as Buyer and Seller may
agree in the Confirmation with respect to any International Transaction or
otherwise in writing;


 


“Business
Day” or “business day”:


 


(i)                                     in
relation to any International Transaction which (A) involves an International
Security and (B) is to be settled through CEDEL or Euroclear, a day on which
CEDEL or, as the case may be, Euroclear is open to settle business in the
currency in which the Purchase Price and the Repurchase Price are denominated;


 


(ii)                                  in
relation to any International Transaction which (A) involves an International
Security and (B) is to be settled through a settlement system other than CEDEL
or Euroclear, a day on which that settlement system is open to settle such
International Transaction;


 


(iii)                               in
relation to any International Transaction which involves a delivery of
Securities not falling within (i) or (ii) above, a day on which banks are open
for business in the place where delivery of the relevant Securities is to be
effected; and


 


(iv)                              in
relation to any International Transaction which involves an obligation to make
a payment not falling within (1) or (ii) above, a day other than a Saturday or
Sunday on which banks are open for business in the principal financial center
of the country of which the currency in which the payment is denominated is the
official currency and, if different, in the place where any account designated
by the parties for the making or receipt of the payment is situated (or, in the
case of ECU, a day on which ECU clearing operates);


 


“CEDEL”, CEDEL Bank,
société anonyme;


 


“Contractual Currency”,
the currency in which the International Securities subject to any International
Transaction are denominated or such other


 





















 


currency as may be
specified in the Confirmation with respect to any International Transaction;


 


“Euroclear”, Morgan
Guaranty Trust Company of New York, Brussels Branch, as operator of the
Euroclear System;


 


“International. Security”,
any Security that (i) is denominated in a currency other than United States
dollars or (ii) is capable of being cleared through a clearing facility outside
the United States or (iii) is issued by an issuer organized under the laws of a
jurisdiction other than the United Stales (or any political subdivision thereof
);


 


“International
Transaction”, any Transaction involving (i) an International Security or (ii) a
party organized under the laws of a jurisdiction other than the United States
(or any political subdivision thereof) or having its principal place of
business outside the United States or (iii) a branch or office outside the
United States designated in Annex I by a party organized under the laws of the
United Status (or any political subdivision thereof) as an office through which
that party may act;


 


“LIBOR”, in relation to
any sum in any currency, the offered rate for deposits for such sum in such
currency for a period of three months which appears on the Reuters Screen LIBO
page as of 11:00 A.M., London time, on the date on which it is to be determined
(or, if more than one such rate appears, the arithmetic mean of such rates);


 


“Spot Rate”, where an
amount in one currency is to be converted into a second currency on any date,
the spot rate of exchange of a comparable amount quoted by a major money-center
bank in the New York interbank market, as agreed by Buyer and Seller, for the
sale by such bank of such second currency against a purchase by it of such
first currency.


 


(b)                                 Notwithstanding
Paragraph 2 of the Agreement, the term “Prime Rate” shall mean, with respect to
any International Transaction, LIBOR plus a spread, as may be specified in the
Confirmation with respect to any International Transaction or otherwise in
writing.


 


2.                                      Manner
of Transfer.  All transfers of
International Securities (i) shall be in suitable form for transfer and
accompanied by duly executed instruments of transfer or assignment in blank
(where required for transfer) and such other documentation as the transferee
may reasonably request, or (ii) shall be transferred through the book-entry
system of Euroclear or CEDEL, or (iii) shall be transferred through any other
agreed securities clearing system or (iv) shall be transferred by any other
method mutually acceptable to Seller and Buyer.


 


18





















 


3.                                      Contractual
Currency.


 


(a)                                  Unless
otherwise mutually agreed, all funds transferred in respect of the Purchase
Price or the Repurchase Price in any International Transaction shall be in the
Contractual Currency.


 


(b)                                 Notwithstanding
subparagraph (a) of this Paragraph 3, the payee of any payment may, at its
option, accept tender thereof in any other currency; provided, however, that,
to the extent permitted by applicable law, the obligation of the payor to make
such payment will be discharged only to the extent of the amount of the
Contractual Currency that such payee may, consistent with normal banking
procedures, purchase with such other currency (after deduction of any premium
and costs of exchange) for delivery within the customary delivery period for spot
transactions in respect of the relevant currency.


 


(c)                                  If
for any reason the amount in the Contractual Currency so received, including
amounts received after conversion of any recovery under any judgment or order
expressed in a currency other than the Contractual Currency, falls short of the
amount in the Contractual Currency due in respect of the Agreement, the party
required to make the payment shall (unless an Event of Default has occurred and
such party is the nondefaulting party) as a separate and independent obligation
(which shall not merge with any judgment or any payment or any partial payment
or enforcement of payment) and to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be necessary
to compensate for the shortfall.


 


(d)                                 If
for any reason the amount of the Contractual Currency received by one party
hereto exceeds the amount in the Contractual Currency due such party in respect
of the Agreement, then (unless an Event of Default has occurred and such party
is the nondefaulting party) the party receiving the payment shall refund
promptly the amount of such excess.


 


4.                                      Notices.  Any and all notices, statements, demands or
other communications with respect to International Transactions shall be given
in accordance with Paragraph 13 of the Agreement and shall be in the English
language.


 


5.                                      Taxes.


 


(a)                                  Transfer
taxes, stamp taxes and all similar costs with respect to the transfer of
Securities shall be paid by Seller.


 


(b)                                 (i)                                     Unless
otherwise agreed, all money payable by one party (the “Payor”) to the other
(the “Payee”) in respect of any International Transaction shall be paid free
and clear of, and without withholding or deduction for, any taxes or duties of
whatsoever nature imposed, levied, collected, withheld or assessed by any
authority having power to tax (a “Tax”), unless the withholding or deduction of
such Tax is required by law. In that event, unless otherwise agreed, Payor
shall pay such additional amounts as will


 


19





















 


result in the net amounts receivable by Payee (after
taking account of such withholding or deduction) being equal to such amounts as
would have been received by Payee had no such Tax been required to be withheld
or deducted; provided that for purposes of Paragraphs 5 and 6 the term “Tax”
shall not include any Tax that would not have been imposed but for the
existence of any present or former connection between Payee and the
jurisdiction imposing such Tax other than the mere receipt of payment from
Payor or the performance of Payee’s obligations under an International
Transaction. The parties acknowledge and agree, for the avoidance of doubt,
that the amount of Income required to be transferred, credited or applied by
Buyer for the benefit of Seller under Paragraph 5 of the Agreement shall be
determined without taking into account any Tax required to be withheld or
deducted from such Income, unless otherwise agreed.


 


(ii)                                  In
the case of any Tax required to be withheld or deducted from any money payable
to a party hereto acting as Payee by the other party hereto acting as Payor,
Payee agrees to deliver to Payor (or, if applicable, to the authority imposing
the Tax) any certificate or document reasonably requested by Payor that would
entitle Payee to an exemption from, or reduction in the rate of, withholding or
deduction of Tax from money payable by Payor to Payee.


 


(iii)                               Each
party hereto agrees to notify the other party of any circumstance known or
reasonably known to it (other than a Change of Tax Law, as defined in Paragraph
6 hereof) that causes a certificate or document provided by it pursuant to
subparagraph (b)(ii) of this Paragraph to fail to be true.


 


(iv)                              Notwithstanding
subparagraph (b)(i) of this Paragraph, no additional amounts shall be payable
by Payor to Payee in respect of an International Transaction to the extent that
such additional amounts are payable as a result of a failure by Payee to comply
with its obligations under subparagraph (b)(ii) or (b)(iii) of this Paragraph
with respect to such International Transaction.


 


6.                                      Tax
Event.


 


(a)                                  This
Paragraph 6 shall apply if either party notifies the other, with respect to a
Tax required to be collected by withholding or deduction, that —


 


(i)                                     any
action taken by a taxing authority or brought in a court of competent
jurisdiction after the date an International Transaction is entered into,
regardless of whether such action is taken or brought with respect to a party
to the Agreement; or


 


20





















 


(ii)                                  a
change in the fiscal or regulatory regime after the date an International
Transaction is entered into,


 


(each,
a “Change of Tax Law”) has or will, in the notifying party’s reasonable
opinion, have a material adverse effect on such party in the context of an
International Transaction.


 


(b)                                 If
so requested by the other party, the notifying party will furnish the other
party with an opinion of a suitably qualified adviser that an event referred to
in subparagraph (a)(i) or (a)(ii) of this Paragraph 6 has occurred and affects
the notifying party.


 


(c)                                  Where
this Paragraph 6 applies, the party giving the notice referred to in
subparagraph (a) above may, subject to subparagraph (d) below, terminate the
International Transaction effective from a date specified in the notice, not
being earlier (unless so agreed by the other party) than 30 days after the date
of such notice, by nominating such date as the Repurchase Date.


 


(d)                                 If
the party receiving the notice referred to in subparagraph (a) of this
Paragraph 6 so elects, it may override such notice by giving a counter-notice
to the other party. If a counter-notice is given, the party which gives such
counter-notice will be deemed to have agreed to indemnify the other party against
the adverse effect referred to in subparagraph (a) of this Paragraph 6 so far
as it relates to the relevant International Transaction and the original
Repurchase Date will continue to apply.


 


(e)                                  Where
an International Transaction is terminated as described in this Paragraph 6,
the party which has given the notice to terminate shall indemnify the other
party against any reasonable legal and other professional expenses incurred by
the other party by reason of the termination, but the other party may not claim
any sum constituting consequential loss or damage in respect of a termination
in accordance with this Paragraph 6.


 


(f)                                    This
Paragraph 6 is without prejudice to Paragraph 5 of this Annex III; but an
obligation to pay additional amounts pursuant to Paragraph 5 of this Annex III
may, where appropriate, be a circumstance which causes this Paragraph 6 to
apply.


 


7.                                      Margin.  In the calculation of “Margin Deficit” and “Margin
Excess” pursuant to Paragraph 4 of the Agreement, all sums not denominated in
the Base Currency shall be deemed to be converted into the Base Currency at the
Spot Rate on the date of such calculation.


 


8.                                      Events
of Default.


 


(a)                                  In
addition to the Events of Default set forth in Paragraph 11 of the Agreement,
it shall be an additional “Event of Default” if either party fails, after one
business day’s notice, to perform any covenant or obligation required to be
performed by it


 


21





















 


under this Annex III,
including, without limitation, the payment of taxes or additional amounts as
required by Paragraph 5 of this Annex III.


 


(b)                                 In
addition to the other rights of a nondefaulting party under Paragraph 11 of the
Agreement, following an Event of Default, the nondefaulting party may, at any
time at its option, effect the conversion of any currency into a different
currency of its choice at the Spot Rate on the date of the exercise of such
option and offset obligations of the defaulting party denominated in different
currencies against each other.


 


22





















 


Schedule III.A


 


International
Transactions Relating to [Relevant Country]


 


This
Schedule III.A forms a part of Annex III to the Master Repurchase Agreement
dated as of (the “Agreement”) between                   
and Daiwa Securities America Inc. 
Capitalized terms used but not defined in this Schedule III.A shall have
the meanings ascribed to them in Annex III.


 


[Insert provisions applicable to relevant country.]


 





















 


ANNEX IV


 


Party Acting as
Agent


 


This
Annex IV forms a part of the Master Repurchase Agreement dated as of October 18, 2004 (the “Agreement”) between Aether Systems, Inc. by FBR Investment Management,
Inc., as Agent and Daiwa
Securities America Inc.  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 meanings 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 Principal
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, previously transferred to the other party and refuse any further performance
under such Transaction, and Agent shall immediately return to the other party
any portion of 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 may 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 of
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.


 


25





















 


(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
Principal or 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 Act 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).


 


26





















 


ANNEX V


 


Margin for Forward
Transactions


 


This
Annex V forms a part of the Master Repurchase Agreement dated as of                     
(the “Agreement”) between                    
and Daiwa Securities America Inc. 
Capitalized terms used but not defined in this Annex V shall have the
meanings ascribed to them in the Agreement.


 


1.                                       Definitions.  For purposes of the Agreement and this Annex
V, the following terms shall have the following meanings:


 


“Forward Exposure”, the amount of loss a party would
incur upon canceling a Forward Transaction and entering into a replacement
transaction, determined in accordance with market practice or as otherwise
agreed by the parties;


 


“Forward Transaction”, any Transaction agreed to by
the parties as to which the Purchase Date has not yet occurred;


 


“Net Forward Exposure”, the aggregate amount of a
party’s Forward Exposure to the other party under all Forward Transactions
hereunder reduced by the aggregate amount of any Forward Exposure of the other
party to such party under all Forward Transactions hereunder;


 


“Net Unsecured Forward Exposure”, a party’s Net
Forward Exposure reduced by the Market Value of any Forward Collateral
transferred to such party (and not returned) pursuant to Paragraph 2 of this
Annex V.


 


2.                                       Margin
Maintenance.


 


(a)                                  If
at any time a party (the “In-the-Money Party”) shall have a Net Unsecured Forward
Exposure to the other party (the “Out-of-the-Money Party”) under one or more
Forward Transactions, the In-the-Money Party may by notice to the
Out-of-the-Money Party require the Out-of-the-Money Party to transfer to the
In-the-Money Party Securities or cash reasonably acceptable to the
In-the-Money-Party (together with any Income thereon and proceeds thereof, “Forward
Collateral”) having a Market Value sufficient to eliminate such Net Unsecured
Forward Exposure. The Out-of-the-Money Party may by notice to the In-the-Money
Party require the In-the-Money Party to transfer to the Out-of-the-Money Party
Forward Collateral having a Market Value that exceeds the In-the-Money Party’s
Net Forward Exposure (“Excess Forward Collateral Amount”). The rights of the parties
under this subparagraph shall be in addition to their rights under
subparagraphs (a) and (b) of Paragraph 4 and any other provisions of the
Agreement.


 


(b)                                 The
parties may agree, with respect to any or all Forward Transactions hereunder,
that the respective rights of the parties under subparagraph (a) of this
Paragraph


 





















 


may be exercised only
where a Net Unsecured Forward Exposure or Excess Forward Collateral Amount, as
the case may be, exceeds a specified dollar amount or other specified threshold
for such Forward Transactions (which amount or threshold shall be agreed to by
the parties prior to entering into any such Forward Transactions).


 


(c)                                  The
parties may agree, with respect to any or all Forward Transactions hereunder,
that the respective rights of the parties under subparagraph (a) of this
Paragraph to require the elimination of a Net Unsecured Forward Exposure or
Excess Forward Collateral Amount, as the case may be, may be exercised whenever
such a Net Unsecured Forward Exposure or Excess Forward Collateral Amount
exists with respect to any single Forward Transaction hereunder (calculated
without regard to any other Forward Transaction outstanding hereunder).


 


(d)                                 The
parties may agree, with respect to any or all Forward Transactions hereunder,
that (i) one party shall transfer to the other party Forward Collateral having
a Market Value equal to a specified dollar amount or other specified threshold
no later than the Margin Notice Deadline on the day such Forward Transaction is
entered into by the parties or (ii) one party shall not be required to make any
transfer otherwise required to be made under this Paragraph if, after giving
effect to such transfer, the Market Value of the Forward Collateral held by
such party would be less than a specified dollar amount or other specified
threshold (which amount or threshold shall be agreed to by the parties prior to
entering into any such Forward Transactions).


 


(e)                                  If
any notice is given by a party to the other under subparagraph (a) of this
Paragraph at or before the Margin Notice Deadline on any business day, the
party receiving such notice shall transfer Forward Collateral as provided in
such subparagraph no later than the close of business in the relevant market on
such business day. If any such notice is given after the Margin Notice
Deadline, the party receiving such notice shall transfer such Forward
Collateral no later than the close of business in the relevant market on the
next business day.


 


(f)                                    Upon
the occurrence of the Purchase Date for any Forward Transaction and the
performance by the parties of their respective obligations to transfer cash and
Securities on such date, any Forward Collateral in respect of such Forward
Transaction, together with any Income thereon and proceeds thereof, shall be
transferred by the party holding such Forward Collateral to the other party;
provided, however, that neither party shall be required to transfer such
Forward Collateral to the other if such transfer would result in the creation
of a Net Unsecured Forward Exposure of the transferor.


 


(g)                                 The
Pledgor (as defined below) of Forward Collateral may, subject to agreement with
and acceptance by the Pledgee (as defined below) thereof, substitute other
Securities reasonably acceptable to the Pledgee for any Securities Forward
Collateral.  Such substitution shall be
made by transfer to the Pledgee of such


 


28





















 


other Securities and transfer to the Pledgor of such
Securities Forward Collateral. After substitution, the substituted Securities
shall constitute Forward Collateral.


 


3.                                       Security
Interest.


 


(a)                                  In
addition to the rights granted to the parties under Paragraph 6 of the
Agreement, each party (“Pledgor”) hereby pledges to the other party (“Pledgee”)
as security for the performance of its obligations hereunder, and grants
Pledgee a security interest in and right of setoff against, any Forward
Collateral and any other cash, Securities or property, and all proceeds of any
of the fore-going, transferred by or on behalf of Pledger to Pledgee or due
from Pledgee to Pledgor in connection with the Agreement and the Forward
Transactions hereunder.


 


(b)                                 Unless
otherwise agreed by the parties, a party to whom Forward Collateral has been
transferred shall have the right to engage in repurchase transactions with
Forward Collateral or otherwise sell, transfer, pledge or hypothecate Forward
Collateral, including in respect of loans or other extensions of credit to such
party that may be in amounts greater than the Forward Collateral such party is
entitled to as security for obligations hereunder, and that may extend for
periods of time longer than the periods during which such party is entitled to
Forward Collateral as security for obligations hereunder; provided, however,
that no such transaction shall relieve such party of its obligations to
transfer Forward Collateral pursuant to Paragraph 2 or 4 of this Annex V or
Paragraph 11 of the Agreement.


 


4.                                       Events
of Default.


 


(a)                                  In
addition to the Events of Default set forth in Paragraph 11 of the Agreement,
it shall be an additional “Event of Default” if either party fails, after one
business day’s notice, to perform any covenant or obligation required to be
performed by it under Paragraph 2 or any other provision of this Annex.


 


(b)                                 In
addition to the other rights of a nondefaulting party under Paragraphs 11 and
12 of the Agreement, if the nondefaulting party exercised or is deemed to have
exercised the option referred to in Paragraph 11(a) of the Agreement:


 


(i)                                     The
nondefaulting party, without prior notice to the defaulting party, may (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 Forward Collateral subject to any or
all Forward Transactions hereunder and apply the proceeds thereof to any
amounts owing by the defaulting party hereunder or (B) in its sole discretion
elect, in lieu of selling all or a portion of such Forward Collateral, to give
the defaulting party credit for such Forward Collateral 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 any amounts
owing by the defaulting party hereunder.


 


29





















 


(ii)                                  Any
Forward Collateral held by the defaulting party, together with any Income
thereon and proceeds thereof, shall be immediately transferred by the
defaulting party to the nondefaulting party. 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), and without prior notice to the
defaulting party, (i) immediately purchase, in a recognized market (or
other-wise 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 Securities Forward Collateral
that is not delivered by the defaulting party to the nondefaulting party as
required hereunder or (ii) 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, whereupon the
defaulting party shall be liable for the price of such Replacement Securities
together with the amount of any cash Forward Collateral not delivered by the
defaulting party to the nondefaulting party as required hereunder.


 


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


 


5.                                       No
Waivers, Etc.  Without limitation of
the provisions of Paragraph 17 of the Agreement, the failure to give a notice
pursuant to subparagraph (a), (b), (c) or (d) of Paragraph 2 of this Annex V
will not constitute a waiver of any right to do so at a later date.


 


30





















 


ANNEX VI


 


Buy/Sell Back
Transactions


 


This
Annex VI forms a part of the Master Repurchase Agreement dated as of                       
(the “Agreement”) between                         
and Daiwa Securities America Inc. 
Capitalized terms used but not defined in this Annex VI shall have the
meanings ascribed to them in the Agreement.


 


1.                                      In
the event of any conflict between the terms of this Annex VI and any other term
of the Agreement, the terms of this Annex VI shall prevail.


 


2.                                      Each
‘Transaction shall be identified at the time it is entered into and in the
relevant Confirmation as either a Repurchase Transaction or a Buy/Sell Back
Transaction.


 


3.                                      In
the case of A Buy/Sell Back Transaction, the Confirmation delivered in
accordance with Paragraph 3 of the Agreement may consist of a single document
in respect of both of the transfers of funds against Securities which together
form the Buy/Sell Back Transaction or separate Confirmations may be delivered
in respect of each such transfer.


 


4.                                      Definitions.
The following definitions shall apply to Buy/Sell Back Transactions:


 


(a)                                  “Accrued
Interest”, with respect to any Purchased Securities subject to a Buy/Sell Back
Transaction, unpaid Income that has accrued during the period from (and
including) the issue date or the last Income payment date (whichever is later)
in respect of such Purchased Securities to (but excluding) the date of
calculation.  For these purposes unpaid
Income shall be deemed to accrue on a daily basis from (and including) the
issue date or the last Income payment date (as the case may be) to (but
excluding) the next Income payment date or the maturity date (whichever is
earlier);


 


(b)                                 “Sell
Back Differential”, with respect to any Buy/Sell Back Transaction as of any
date, The aggregate amount obtained by daily application of the Pricing Rate
for such Buy/Sell Back Transaction to the Purchase Price for such Buy/Sell Back
Transaction on a 360 day per year basis (unless otherwise agreed by the parties
for the Transaction) for the actual number of days during the period commencing
on (and including) the Purchase Date for such Buy/Sell Back Transaction and
ending on (but excluding) the date of determination;


 


(c)                                  “Sell
Back Price”, with respect to any Buy/Sell Back Transaction:


 


(i)                                     in
relation to the date originally specified by the parties as the Repurchase Date
pursuant to Paragraph 2(q) of the Agreement, the price agreed by the Parties in
relation to such Buy/Sell Back Transaction, and


 





















 


(ii)                                  in
any other case (including for the purposes of the application of Paragraph 4 or
Paragraph 11 of the Agreement), the product of the formula (P + D) - (IR + C),
where —


 


P                                         =
the Purchase Price


 


D                                       =
the Sell Back Differential


 


IR                                    =
the amount of any Income in respect of the Purchased Securities paid by the
issuer on any date falling between the Purchase Date and the Repurchase Date


 


C                                        =
the aggregate amount obtained by daily application of the Pricing Rate for such
Buy/Sell Back Transaction to any such Income from (and including) the date of
payment by the issuer to (but excluding) the date of calculation.


 


5.                                      When
entering into a Buy/Sell Back Transaction the parties shall also agree on the
Sell Back Price and the Pricing Rate to apply in relation to such Buy/Sell Back
Transaction on the scheduled Repurchase Date. 
The parties shall record the Pricing Rate in at least one Confirmation
applicable to such Buy/Sell Back Transaction.


 


6.                                      Termination
of a Buy/Sell Back Transaction shall be effected on the Repurchase Date by
transfer to Seller or its agent of Purchased Securities against the payment by
Seller of (i) in a case where the Repurchase Date is the date originally agreed
to by the parties pursuant to Paragraph 2(q) of the Agreement, the Sell Back
Price referred to in Paragraph 4(c)(i) of this Annex; and (ii) in any other
case, the Sell Back Price referred to in Paragraph 4(c)(ii) of this Annex.


 


7.                                      For
the avoidance of doubt, the parties acknowledge and agree that the Purchase
Price and the Sell Back Price in Buy/Sell Back Transactions shall include
Accrued Interest (except to the extent contrary to market practice with respect
to the Securities subject to such Buy/Sell Back Transaction, in which event (i)
an amount equal to the Purchase Price plus Accrued Interest to the Purchase
Date shall be paid to Seller on the Purchase Date and shall be used, in lieu of
the Purchase Price, for calculating the Sell Back Differential, (ii) an amount
equal to the Sell Back Price plus the amount of Accrued Interest to the
Repurchase Date shall be paid to Buyer on the Repurchase Date, and (iii) the
formula in Paragraph 4(c)(ii) of this Annex VI shall be replaced by the formula
“(P + AI + D) - (IR + C)”, where “AI” equals Accrued Interest to the Purchase
Date).


 


8.                                      Unless
the parties agree in Annex I to the Agreement that a Buy/Sell Back Transaction
is not to be repriced, they shall at the time of repricing agree on the
Purchase Price, the Sell Back Price and the Pricing Rate applicable to such
Transaction.


 


9.                                      Paragraph
5 of the Agreement shall not apply to Buy/Sell Back Transactions. Seller
agrees, on the date such Income is received, to pay to Buyer any Income
received by Seller in respect of Purchased Securities that is paid by the
issuer on any date falling between the Purchase Date and the Repurchase Date.


 


32





















 


10.                               References
to “Repurchase Price” throughout the Agreement shall be construed as references
to “Repurchase Price or the Sell Back Price, as the case may be.”


 


11.                               In
11 of the Agreement, references to the “Repurchase Prices” shall be construed
as references to “Repurchase Prices and Sell Back Prices.”


 


33





















 


ANNEX VII


 


Transactions
Involving Registered Investment Companies


 


This
Annex VII (including any Schedules hereto) forms a part of the Master
Repurchase Agreement dated as of                  
(the “Agreement”) between                      
(“Counterparty”) and each investment company identified on Schedule VII.A
hereto (as such schedule may be amended from time to time) acting on behalf of
its respective series or portfolios identified on such Schedule VII.A, or in
the case of those investment companies for which no separate series or
portfolios are identified on such Schedule VII.A, acting for and on behalf of
itself (each such series, portfolio or investment company, as the case may be,
hereinafter referred to as a “Fund”).  In
the event of any conflict between the terms of this Annex VII and any other
term of the Agreement, the terms of this Annex VII shall prevail. Capitalized
terms used but not defined in this Annex VII shall have the meanings ascribed
to them in the Agreement.


 


1.                                      Multiple
Funds. For any Transaction in which a Fund is acting as Buyer (or Seller,
as the case may be), each reference in the Agreement and this Annex VII to
Buyer (or Seller, as the case may be) shall be deemed a reference solely to the
particular Fund to which such Transaction relates, as identified to Seller (or
Buyer, as the case may be) by the Fund and as may be specified in the
Confirmation therefor. In no circumstances shall the rights, obligations or
remedies of either party with respect to a particular Fund constitute a right,
obligation or remedy applicable to any other Fund.  Specifically, and without otherwise limiting
the scope of this Paragraph:(a) the margin maintenance obligations of Buyer and
Seller specified in Paragraph 4 or any other provisions of the Agreement and
the single agreement provisions of Paragraph 12 of the Agreement shall be
applied based solely upon Transactions entered into by a particular Fund, (b)
Buyer’s and Seller’s remedies under the Agreement upon the occurrence of an
Event of Default shall be determined as if each Fund had entered into a
separate Agreement with Counterparty, and (c) Seller and Buyer shall have no
right to set off claims related to Transactions entered into by a particular
Fund against claims related to Transactions entered into by any other Fund.


 


2.                                      Margin
Percentage. For any Transaction in which a Fund is acting as Buyer, the
Buyer’s Margin Percentage shall always be equal to at least        %,
or such other percentage as the parties hereto may from time to time mutually
determine; provided, that in no event shall such percentage be less than
100%.  For any Transaction in which a
Fund is acting as Seller, the Buyer’s Margin Percentage shall be such
percentage as the parties hereto may from time to time mutually determine;
provided, that in no event shall such percentage be less than 100%.


 


3.                                      Confirmations.
Unless otherwise agreed, Counterparty shall promptly issue a Confirmation to
the Fund pursuant to Paragraph 3 of the Agreement. Upon the transfer of
substituted or Additional Purchased Securities by either party, Counterparty
shall promptly provide notice to the Fund confirming such transfer.


 


4.                                      Financial
Condition. Each party represents that it has delivered the following
financial information to the other party to the Agreement: in the case of a
party that is a registered


 





















 


broker-dealer, its most
recent statements required to be furnished to customers by Rule 17a-5 (c) under
the 1934 Act; in the case of a party that is a Fund, its most recent audited or
unaudited financial statements required to be furnished to its shareholders by
Rule 30d-1 under the Investment Company Act of 1940; in the case of any other
party, its most recent audited or unaudited statements of financial condition
or other comparable information concerning its financial condition.


 


Each party represents that the financial statements or
information so delivered fairly reflect its financial condition and, if
applicable, its net capital ratio, on the date as of which such financial
statements or information were prepared. Each party agrees that it will make
available and deliver to the other party, promptly upon request, all such
financial statements that subsequently are required to be delivered to its
customers or shareholders pursuant to Rule 17a-5(c) or Rule 30d-1, as the case
may be, or, in the case of a party that is neither a registered broker-dealer
nor a Fund, all such financial information that subsequently becomes available
to the public.


 


Each Fund acknowledges and agrees that it has made an
independent evaluation of the creditworthiness of the other party that is
required pursuant to the Investment Company Act of 1940 or the regulations
thereunder.  Each Fund agrees that its
agreement to enter into each Transaction hereunder shall constitute an
acknowledgment and agreement that it has made such an evaluation.


 


5.                                      Segregation
of Purchased Securities. Unless otherwise agreed by the parties, any transfer
of Purchased Securities to a Fund shall be effected by delivery or other
transfer (in the manner agreed upon pursuant to Paragraph 7 of the Agreement)
to the custodian or subcustodian designated for such Fund in Schedule VILA
hereto (“Custodian”) for credit to the Fund’s custodial account with such
Custodian.  If the party effecting such
transfer is the Fund’s Custodian, such party shall, unless otherwise directed
by the Fund, (a) transfer and maintain such Purchased Securities to and in the
Fund’s custodial account with such party and (b) so indicate in a notice to the
Fund.


 


35





















 


Schedule VII.A


 


Supplemental
Tennis and Conditions of Transactions

Involving Registered Investment Companies


 


This
Schedule VII.A forms a part of Annex VII to the Master Repurchase Agreement
dated as of (the “Agreement”) between                       
and Daiwa Securities America Inc. Capitalized terms used but not defined in
this Schedule VII.A shall have the meanings ascribed to them in Annex VII.


 


1.                                      This
Agreement is entered into by or on behalf of the following Funds, and unless
otherwise indicated by the appropriate Fund in connection with a Transaction,
the following Custodians are designated to receive transfers of Purchased
Securities on behalf of such Funds for credit to the appropriate Fund’s
custodial account:


 


	
  Name of Fund

  	
   

  	
  Custodian

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


o.  Limitation of Liability. If the Fund is
organized as a business trust (or a series thereof), the parties agree as
follows: [insert appropriate language limiting liability of trustees, officers
and others].