Exhibit 10.14


 


Master Repurchase

Agreement


 


September 1996 Version


 


	
  Dated as of

  	
   

  	
  June 22, 2004

  
	
   

  	
   

  	
   

  
	
  Between:

  	
   

  	
  Countrywide Securities Corporation

  
	
   

  	
   

  	
   

  
	
  and

  	
   

  	
  Aether Systems, Inc. (‘Seller’)

  
	
   

  	
   

  	
  by: FBR Investment Management Inc.,
  as Agent

  



 


1.                                      Applicability


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


 


2.                                      Definitions


(a)                                  “Act
of Insolvency”, with respect to any party, (i) the commencement by such party
as debtor of any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, moratorium, dissolution, delinquency or similar
law, or such party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official 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 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
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.


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


 


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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, bylaw 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 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,


 


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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


 


(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 


 


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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 1, 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. 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.


 


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


 


12.                               Single Agreement


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


 


13.                               Notices and Other Communications


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


 


14.                               Entire Agreement; Severability


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


 


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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 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


 


11





















 


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





















 


	
  Countrywide Securities Corporation

  	
  Aether Systems, Inc. (‘Seller’) by:
  FBR

  
	
   

  	
   

  
	
   

  	
  Investment Management Inc., as
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Patrick Hildreth

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Senior Vice
  President

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
						



 


13





















 


Annex
I

Supplemental Terms and Conditions


 


This Annex I forms a part
of the Master Repurchase Agreement dated as of June 22, 2004 (the “Agreement”) between Countrywide Securities Corporation and Aether Systems,
Inc. (‘Seller’) by: FBR Investment Management Inc., as Agent.
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:


 


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


 


(c)                                  In
the case of any Transaction for which the Repurchase Date is other than the
business day immediately following the Purchase Date and with respect to which
Seller does not have any existing right to substitute substantially the same
Securities for the Purchased Securities, Seller shall have the right, subject
to the proviso to this sentence, upon notice to Buyer, which notice shall be
given at or prior to 10 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 such substitution,
the substituted Securities shall be deemed to be Purchased Securities. In the
event Buyer elects not to accept such substitution, Buyer shall offer Seller
the right to terminate the Transaction.


 


(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.


 





















 


	
  Countrywide Securities Corporation

  	
  Aether Systems, Inc. (‘Seller’) by:
  FBR

  
	
   

  	
   

  
	
   

  	
  Investment Management Inc., as
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Patrick Hildreth

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Senior Vice
  President

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  



 


15





















 


Annex
II

Names and Addresses for Communication Between the
Parties


 


If to Countrywide
Securities Corporation:


 


Countrywide Securities
Corporation

26745 Malibu hills Road, Mail Stop MH-9

Calabasas Hills, CA 91301-5355

Attn:  Patrick Hildreth

(818) 871-2410

(818) 871-2600 Fax


 


If to Aether Systems,
Inc. (‘Seller’) by:  FBR Investment
Management Inc., as Agent:


 


 


 


 


 


FBR Investment
Management, Inc. is acting solely as agent for Seller and not as principal in
any transactions. Subject to Agent’s representations set forth in the Letter of
Trading Authorization Issued to Buyer and dated June 15, 2004, Agent in such
capacity as ‘Agent’, shall have no liability to Buyer whatsoever for any of
Seller’s obligations hereunder or otherwise, including without limitations for
any Transaction entered into by the Agent on Seller’s behalf hereunder, or for
margin calls, maintenance calls or settlement of Transactions.