exv4w3






Exhibit 4.3




Execution Version







 

 












Indemnification Collateral Account Security 

and Control Agreement 




among



MetLife, Inc.,

as Secured Party



ALICO Holdings LLC,

as Pledgor



Deutsche Bank Trust Company Americas,

as Securities Intermediary and Pledge Collateral Agent



Deutsche Bank Trust Company Americas,

as Stock Purchase Contract Agent

and



American International Group, Inc.



Dated as of November 1, 2010



 

 














 









 
















Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.1 Certain Terms Defined; Interpretation

	 	 	2	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	Grant of Security Interests; Financing Statements
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.1 Grant of Security Interests

	 	 	6	 
	SECTION 2.2 Financing Statements

	 	 	6	 
	SECTION 2.3 Satisfaction of Obligation to Transfer Collateral

	 	 	7	 
	SECTION 2.4 Name and Address of Pledgor

	 	 	7	 
	SECTION 2.5 Secured Party and Pledge Collateral Agent May Perform

	 	 	7	 
	SECTION 2.6 Secured Party and Pledge Collateral Agent Appointed Attorneys-in-Fact

	 	 	8	 
	SECTION 2.7 Taxes

	 	 	8	 
	SECTION 2.8 Voting Rights

	 	 	9	 
	SECTION 2.9 Ability to Enforce Collateral

	 	 	9	 
	SECTION 2.10 Security Interest Absolute

	 	 	11	 
	SECTION 2.11 Further Assurances

	 	 	12	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	Appointment and Status of Securities Intermediary and Pledge Collateral Agent;

Indemnification Collateral Account
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.1 Appointment; Identification of Indemnification Collateral

	 	 	12	 
	SECTION 3.2 Status of Securities Intermediary

	 	 	13	 
	SECTION 3.3 Representations, Warranties and Covenants of Securities Intermediary

	 	 	13	 
	SECTION 3.4 Representations, Warranties and Covenants of Pledge Collateral Agent

	 	 	14	 
	SECTION 3.5 Representations, Warranties and Covenants of Pledgor

	 	 	15	 
	SECTION 3.6 Use of Depositories

	 	 	15	 
	SECTION 3.7 Merger, Conversion, Consolidation or Succession to Business

	 	 	15	 
	SECTION 3.8 Rights in Other Capacities

	 	 	15	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 Collateral Services
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.1 Delivery of Indemnification Collateral

	 	 	16	 
	SECTION 4.2 Release of Indemnification Collateral

	 	 	16	 
	SECTION 4.3 Substitutions

	 	 	17	 
	SECTION 4.4 Common Equity Units as Collateral

	 	 	18	 
	SECTION 4.5 Treatment of Proceeds

	 	 	20	 
	SECTION 4.6 Exclusive Control

	 	 	20	 
	SECTION 4.7 Statements

	 	 	21	 
	SECTION 4.8 Notice of Adverse Claims

	 	 	21	 
	SECTION 4.9 Subordination of Lien; Set-off

	 	 	21	 
	SECTION 4.10 No Release Without Consent

	 	 	21	 






i









 






	 	 	 	 	 
	 	 	Page
	ARTICLE V
	 	 	 	 
	General Terms and Conditions
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.1 Standard of Care; Limitation of Liability; Indemnification

	 	 	22	 
	SECTION 5.2 No Obligation Regarding Quality of Collateral

	 	 	23	 
	SECTION 5.3 No Responsibility Concerning Indemnification Provisions

	 	 	23	 
	SECTION 5.4 No Duty of Oversight

	 	 	23	 
	SECTION 5.5 Advice of Counsel

	 	 	23	 
	SECTION 5.6 No Collection Obligations

	 	 	24	 
	SECTION 5.7 Fees and Expenses

	 	 	24	 
	SECTION 5.8 Effectiveness of Instructions; Reliance; Risk Acknowledgements; Additional Terms

	 	 	24	 
	SECTION 5.9 Certain Rights

	 	 	25	 
	SECTION 5.10 Indemnification Collateral Account Disclosure

	 	 	26	 
	SECTION 5.11 Force Majeure

	 	 	26	 
	SECTION 5.12 No Implied Duties

	 	 	26	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.1 Resignation or Removal of Securities Intermediary and Pledge Collateral Agent

	 	 	26	 
	SECTION 6.2 Termination

	 	 	27	 
	SECTION 6.3 Certificates of Authorized Persons

	 	 	28	 
	SECTION 6.4 Notices

	 	 	28	 
	SECTION 6.5 Cumulative Rights; No Waiver

	 	 	29	 
	SECTION 6.6 Severability; Amendments; Assignment

	 	 	29	 
	SECTION 6.7 Governing Law; Jurisdiction; Waiver of Immunity; Jury Trial Waiver

	 	 	29	 
	SECTION 6.8 No Third Party Beneficiaries

	 	 	30	 
	SECTION 6.9 Counterparts

	 	 	30	 
	SECTION 6.10 USA PATRIOT ACT

	 	 	30	 
	SECTION 6.11 Agreement of Stock Purchase Contract Agent

	 	 	30	 
	 
	 	 	 	 
	SCHEDULE I Contact Persons for Confirmation

	 	SI-1	 






ii









 






     This Indemnification Collateral Account Security and Control Agreement, dated as of
November 1, 2010 (the “Agreement”), by and among MetLife, Inc., a Delaware corporation, as secured
party for its own benefit and for the benefit of all other Acquiror Indemnified Parties (as defined
in the Stock Purchase Agreement referred to below) (“Secured Party”), ALICO Holdings LLC, a
Delaware limited liability company (“Pledgor”), Deutsche Bank Trust Company Americas, a New York
banking corporation, in its capacity as securities intermediary hereunder (“Securities
Intermediary”) and Deutsche Bank Trust Company Americas, a New York banking corporation, as pledge
collateral agent hereunder (“Pledge Collateral Agent”), for certain limited purposes, Deutsche Bank
Trust Company Americas, a New York banking corporation, in its capacity as Stock Purchase Contract
Agent (“Stock Purchase Contract Agent”) under the Pledge Agreement described below, and, for
certain limited purposes, American International Group, Inc., a Delaware corporation (“AIG”).



W i t n e s s e t h:




     Whereas, Secured Party, American International Group, Inc., a Delaware corporation
(“Pledgor Parent”), and Pledgor have entered into a Stock Purchase Agreement, dated as of March 7,
2010 (as the same may be amended from time to time, the “Stock Purchase Agreement”), containing
provisions in Article XI thereof for the indemnification of Secured Party and the other Acquiror
Indemnified Parties (Article XI thereof, other than the provisions in Section 11.03 thereof, being
referred to as the “Indemnification Provisions”);



     Whereas, pursuant to the Stock Purchase Agreement, Secured Party, Pledgor Parent,
Pledgor and certain other parties named therein have entered into the Ancillary Agreements (as
defined below), in furtherance of the agreements and arrangements contemplated in the Stock
Purchase Agreement;



     Whereas, Secured Party and Deutsche Bank Trust Company Americas, a New York banking
corporation, as Stock Purchase Contract Agent, acting on behalf of all holders of Common Equity
Units (as defined below), including Pledgor, and Securities Intermediary in its capacity as
Collateral Agent (in such capacity, “Collateral Agent”), have entered into a Pledge Agreement,
dated as of November 1, 2010 (as the same may by amended from time to time, the “Pledge
Agreement”), in connection with the issuance of Common Equity Units to Pledgor as part of the
consideration paid to Pledgor by Secured Party pursuant to the Stock Purchase Agreement;



     Whereas, pursuant to this Agreement, Pledgor desires to pledge to Secured Party, for
the benefit of Secured Party and the other Acquiror Indemnified Parties, the Indemnification
Collateral (as defined below) and the Pledge Collateral (as defined below) in order to secure the
payment of Pledgor’s obligations to Secured Party and the other Acquiror Indemnified Parties under
the Indemnification Provisions, this Agreement, and the Ancillary Agreements;



     Whereas, Secured Party and Pledgor have requested Securities Intermediary to hold the
Indemnification Collateral (other than the Pledge Collateral) in custody and to perform certain
other functions as more fully described herein;



1









 





     Whereas, Secured Party and Pledgor have requested Pledge Collateral Agent to hold the
Pledge Collateral in custody and to perform certain other functions in its capacity as Pledge
Collateral Agent as more fully described herein, in addition and supplementary to, but not in
conflict with, its functions as Collateral Agent under the Pledge Agreement; and



     Whereas, Securities Intermediary and Pledge Collateral Agent are willing to act on
behalf of Secured Party and Pledgor in respect of Indemnification Collateral and Pledge Collateral
delivered to Securities Intermediary and Pledge Collateral Agent by Pledgor for the benefit of
Secured Party (both for its own benefit and the benefit of the other Acquiror Indemnified Parties),
subject to the terms hereof;



     Now, Therefore, in consideration of the mutual promises set forth herein and for
other good and valuable consideration, the parties hereto agree as follows:



ARTICLE I

Definitions



     SECTION 1.1 Certain Terms Defined; Interpretation. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:



     (a) the terms defined in this Article I shall have the meanings assigned to them in this
Article I and, where the context requires, include the plural as well as the singular, and nouns
and pronouns of the masculine gender include the feminine and neuter genders;



     (b) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other subdivision;



     (c) the terms “bank,” “chattel paper,” “deposit account,” “entitlement holder,” “entitlement
order,” “financial asset,” “general intangible,” “investment property,” “payment intangible,”
“proceeds,” “security,” “security entitlement” and “securities intermediary” shall have the
meanings set forth in Articles 8 and 9 of the UCC (as defined below);



     (d) Section headings are included in this Agreement for convenience only and shall have no
substantive effect on its interpretation; and



     (e) the following terms have the meanings given to them in this Section 1.1(e):



     “Acquiror Indemnified Parties” shall have the meaning set forth in the Stock Purchase
Agreement.



     “Acquiror Interim Preferred Stock” shall mean the Series B Contingent Convertible Junior
Participating Non-Cumulative Perpetual Preferred Stock, $0.01 per share, of Secured Party.



     “Ancillary Agreements” shall mean the Transition Services Agreement, the Investor Rights
Agreement and the Special Asset Protection Agreement.



2









 





     “Authorized Person” shall mean any person, whether or not an officer or employee of a Secured
Party or Pledgor, duly authorized by a Secured Party or Pledgor, respectively, to give Written
Instructions on behalf of a Secured Party or Pledgor, respectively; each such person to be
designated in a Certificate of Authorized Persons which contains a specimen signature of such
person.



     “Business Day” shall have the meaning set forth in the Stock Purchase Agreement.



     “Closing Date” shall have the meaning set forth in the Stock Purchase Agreement.



     “Code” shall have the meaning set forth in the Stock Purchase Agreement.



     “Collateral” shall have the meaning set forth in the Pledge Agreement.



     “Collateral Agent” shall have the meaning set forth in the Recitals hereto.



     “Common Equity Units” shall have the meaning set forth in the Stock Purchase Contract
Agreement.



     “Common Stock” shall mean the common stock, par value $0.01 per share, of Secured Party.



     “Depository” shall mean the Treasury/Reserve Automated Debt Entry System maintained at The
Federal Reserve Bank of New York for receiving and delivering securities, The Depository Trust
Company, Euroclear Bank S.A./N.V., Clearstream Banking, société anonyme, and any depository,
book-entry system or clearing agency (and their respective successors and assigns) authorized to
act as a securities depository or clearing agency, pursuant to applicable law and identified to
Pledgor from time to time.



     “Eligible Collateral” shall have the meaning set forth in the Indemnification Provisions.



     “Excess Collateral Amount” shall have the meaning set forth in Section 4.2 hereof.



     “Fair Value” shall have the meaning set forth in Section 11.05 of the Stock Purchase
Agreement.



     “Includible Amounts” shall have the meaning set forth in Section 2.7 hereof.



     “Indemnification Collateral” shall mean all of Pledgor’s right, title and interest, now or
hereafter existing, in and to the Indemnification Collateral Account, the Initial Collateral, the
Pledge Collateral, all investment property, financial assets and securities entitlements credited
or required or agreed to be credited to the securities account constituting part of the
Indemnification Collateral Account, any and all funds credited to the deposit account constituting
part of the Indemnification Collateral Account, all dividends, interest, cash, securities,
instruments (as defined in Article 9 of the UCC), general and payment intangibles (each as defined
in Article 9 of the UCC), account (as defined in Article 9 of the UCC), security entitlements,
investment property and other financial assets at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for, or as a renewal of, or reinvestment
for, or



3









 




 substitution of, amounts or property in the Indemnification Collateral Account, all rights,
powers, remedies and privileges of Pledgor under or with respect to the Indemnification Collateral
Account or any of the foregoing and under or with respect to the Stock Purchase Contract Agreement,
all deposit accounts, general and payment intangibles (each as defined in Article 9 of the UCC),
accounts (as defined in Article 9 of the UCC) and chattel paper related to or associated with any
of the foregoing, and all proceeds and returns of and from any of the foregoing.




     “Indemnification Collateral Account” shall mean the securities account (Account No. S54232.6)
established and maintained by Securities Intermediary and designated “MetLife, Inc.,
Indemnification Coll A/C” (as the same may be redesignated, renumbered or otherwise modified), and
the non-interest bearing deposit account (Account No. S54232.7), identically designated,
established and maintained by Securities Intermediary in its capacity as a bank in connection with
the securities account.



     “Indemnification Provisions” shall have the meaning set forth in the Recitals hereto.



     “Initial Collateral” shall mean Eligible Collateral required by the Indemnification Provisions
to be credited to the Indemnification Collateral Account on the Closing Date, the particular
composition of such Eligible Collateral for these purposes to be determined pursuant to the Stock
Purchase Agreement.



     “Investor Rights Agreement” shall mean the Investor Rights Agreement, dated as of November 1,
2010, by and among Pledgor, Pledgor Parent and Secured Party, as the same may be amended from time
to time.



     “Law” shall have the meaning set forth in the Stock Purchase Agreement.



     “Losses” shall have the meaning set forth in Section 5.1 hereof.



     “Notice of Enforcement” shall mean a notice pursuant to Section 2.9 hereof that a Secured
Party is enforcing its rights against all or any portion of the Indemnification Collateral.



     “Obligations” shall mean all present and future obligations and liabilities (whether actual or
contingent) of Pledgor to Secured Party and the other Acquiror Indemnified Parties under this
Agreement, the Indemnification Provisions and the Ancillary Agreements.



     “Person” shall mean a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any
other entity of whatever nature.



     “Pledge Agreement” shall have the meaning set forth in the Recitals hereto.



     “Pledge Collateral” shall mean all Pledgor’s right, title and interest, now or hereafter
existing, in and to the Collateral that is credited, or required under this Agreement and the
Pledge Agreement to be credited, to (or that is otherwise related to) the Pledge Collateral



4









 




Accounts established under the Pledge Agreement, all dividends, interest, cash, securities, instruments
(as defined in Article 9 of the UCC), security entitlements, investment property and other
financial assets at any time and from time to time received, receivable or otherwise distributed in
respect of or in exchange for, or as a renewal of, or reinvestment for, or substitution of, amounts
or property in the Pledge Collateral Accounts, all rights, powers, remedies and privileges of
Pledgor under or with respect to the Collateral, the Pledge Collateral Accounts or any of the
foregoing, the Stock Purchase Contracts associated with the Common Equity Units from time to time
credited or required to be credited to the Indemnification Collateral Account, all deposit
accounts, general or payment intangibles, accounts (as defined in Article 9 of the UCC),
instruments (as defined in Article 9 of the UCC) and chattel paper related to or associated with
any of the foregoing, and all proceeds and returns of and from any of the foregoing.




     “Pledge Collateral Accounts” shall mean the Pledged Unit Subaccounts established under Section
11.11 of the Pledge Agreement to hold the Collateral that secures the performance of Pledgor
(referred to as the “Initial Holder” in the Pledge Agreement) under the Stock Purchase Contracts
that relate to and form part of the Common Equity Units constituting a portion of the
Indemnification Collateral and under the Pledge Agreement.



     “Pledge Collateral Agent” shall have the meaning set forth in the Preamble hereto.



     “Pledgor” shall have the meaning set forth in the Preamble hereto.



     “Pledgor Parent” shall have the meaning set forth in the Recitals hereto.



     “Secured Party” shall have the meaning set forth in the Preamble hereto.



     “Securities Intermediary” shall have the meaning set forth in the Preamble hereto.



     “Special Asset Protection Agreement” shall mean the Special Asset Protection Agreement, dated
as of November 1, 2010, by and among Secured Party, Pledgor, Pledgor Parent and American Life
Insurance Company, a Delaware-domiciled insurance company, as the same may be amended from time to
time.



     “Stock Purchase Agreement” shall have the meaning set forth in the Recitals hereto.



     “Stock Purchase Contract” shall have the meaning set forth in the Stock Purchase Contract
Agreement.



     “Stock Purchase Contract Agent” shall have the meaning set forth in the Preamble hereto.



     “Stock Purchase Contract Agreement” shall mean the Stock Purchase Contract Agreement, to be
dated as of November 1, 2010, between Secured Party and Stock Purchase Contract Agent, as the same
may be amended from time to time.



     “Tax” shall have the meaning set forth in the Stock Purchase Agreement.



5









 





     “Tax Authority” shall have the meaning set forth in the Stock Purchase Agreement.



     “Tax Law” shall have the meaning used in the Stock Purchase Agreement.



     “Tax Returns” shall have the meaning set forth in the Stock Purchase Agreement.



     “Transition Services Agreement” shall mean the Transition Services Agreement, dated as of
November 1, 2010, by and between Secured Party and Pledgor Parent, as the same may be amended from
time to time.



     “Treasury Security” has the meaning set forth in the Stock Purchase Contract Agreement.



     “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of
New York.



     “Unpaid Obligation Amount” shall have the meaning set forth in Section 2.9 hereof.



     “Written Instructions” shall mean written communications received by Securities Intermediary
or Pledge Collateral Agent via letter, facsimile transmission, or other method or system specified
by Securities Intermediary or Pledge Collateral Agent, as the case may be, as available for use in
connection with this Agreement.



ARTICLE II

Grant of Security Interests; Financing Statements



     SECTION 2.1 Grant of Security Interests. As security for the Obligations, Pledgor hereby
pledges to Secured Party (for its own benefit and the benefit of the other Acquiror Indemnified
Parties), and grants to Secured Party (for its own benefit and the benefit of the other Acquiror
Indemnified Parties) a security interest in, the Indemnification Collateral. For the protection of
such security interest and pledge and as further security for the Obligations, Pledgor also pledges
to Pledge Collateral Agent for the benefit of Secured Party, and grants to Pledge Collateral Agent
for the benefit of Secured Party a security interest in, the Pledge Collateral.



     SECTION 2.2 Financing Statements. Pledgor agrees to take all actions which may be necessary
or advisable under all applicable laws to perfect the security interests created and granted by
this Agreement in favor of Secured Party (for its own benefit and the benefit of the other Acquiror
Indemnified Parties) and Pledge Collateral Agent against Pledgor, to ensure that the security
interest of Secured Party (for its own benefit and the benefit of the other Acquiror Indemnified
Parties) in the Indemnification Collateral is a first priority lien, senior and prior in right of
claim to any creditors claiming an interest in and to the Indemnification Collateral (except as
provided below with respect to the Pledge Collateral), and to ensure that the security interest of
Secured Party (for its own benefit and the benefit of the other Acquiror Indemnified Parties) in
the Pledge Collateral granted to Pledge Collateral Agent for the benefit of Secured Party (for its
own benefit and the benefit of the other Acquiror Indemnified Parties) pursuant to




6









 





 this Agreement
for the purpose of securing the Obligations ranks pari passu with the security
interest in the Pledge Collateral granted to Collateral Agent pursuant to the Pledge Agreement
for the benefit of Secured Party. In furtherance thereof, Pledgor hereby authorizes the Secured
Party to record and file with the appropriate filing office, at Pledgor’s own expense, UCC-1
financing statements (including any continuation statements with respect to such financing
statements when applicable) with respect to the security interests in the Indemnification
Collateral and the Pledge Collateral granted to Secured Party (for its own benefit and the benefit
of the other Acquiror Indemnified Parties) and Pledge Collateral Agent, respectively, pursuant to
this Agreement, and Secured Party shall deliver a file-stamped copy of such financing statements or
continuation statements to Pledgor. Secured Party hereby acknowledges on its own behalf and on
behalf of the other Acquiror Indemnified Parties that portions of the Pledge Collateral are subject
to the lien created under, and the rights in favor of the Collateral Agent granted by, the terms of
the Pledge Agreement and agrees (i) not to exercise any of its remedies hereunder with respect to
any Common Equity Unit that is not a Pledged Unit and (ii) not to take any action under this
Agreement with respect to the Pledge Collateral relating to any Pledged Unit with respect to which
its remedies hereunder are not being exercised.




     SECTION 2.3 Satisfaction of Obligation to Transfer Collateral. Pledgor will be required to
deliver Indemnification Collateral as follows: (i) in the case of cash, payment or delivery to the
Indemnification Collateral Account; (ii) in the case of certificated securities that cannot be
delivered by book-entry, delivery in appropriate physical form to Securities Intermediary
accompanied by duly executed instruments of transfer properly completed and executed in blank; and
(iii) in the case of securities that can be delivered in book-entry form, the giving of written
instructions to the issuer or the appropriate securities intermediary sufficient if complied with
to result in a legally effective transfer of the relevant interest to Securities Intermediary. In
the case of Pledge Collateral, Stock Purchase Contract Agent, Pledgor, Secured Party, Securities
Intermediary and Pledge Collateral Agent agree to take such actions as may be necessary to ensure
that the Pledge Collateral required to be credited to the Pledge Collateral Accounts under the
Pledge Agreement is properly so credited in the manner required by the Pledge Agreement.



     SECTION 2.4 Name and Address of Pledgor. Pledgor represents that its exact legal name is
ALICO Holdings LLC and that it is a Delaware limited liability company and its mailing address is:
ALICO Holdings LLC, c/o American International Group, Inc., 80 Pine Street, New York, New York
10270. Pledgor covenants with Secured Party (for its own benefit and the benefit of the other
Acquiror Indemnified Parties) as follows:



          (i) without providing at least ten (10) days’ prior written notice to Secured Party (or such
shorter period as may be agreed at any time by Secured Party in writing), it will not change its
name or its mailing address, and



          (ii) without the prior written consent of Secured Party, not to be unreasonably withheld, it
will not change its type of organization, jurisdiction of organization or other legal structure.



     SECTION 2.5 Secured Party and Pledge Collateral Agent May Perform. If Pledgor fails to
perform any of its obligations under this Agreement, Secured Party may itself perform, or



7









 




cause performance of, such obligations with respect to the Indemnification Collateral, and
Pledge Collateral Agent, pursuant to instructions from Secured Party, may itself perform, or cause
performance of, such obligations with respect to the Pledge Collateral, and the expense of Secured
Party or Pledge Collateral Agent incurred in connection with such performance shall be payable by
Pledgor.




     SECTION 2.6 Secured Party and Pledge Collateral Agent Appointed Attorneys-in-Fact. Pledgor
hereby irrevocably constitutes and appoints Secured Party, Pledge Collateral Agent and any officer
or agent thereof, with full power of substitution, as its true and lawful attorneys-in-fact with
full irrevocable power and authority in the place and stead of Pledgor or in Secured Party’s or
Pledge Collateral Agent’s own name (but for the benefit of Secured Party and the other Acquiror
Indemnified Parties), for the purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute any and all documents and instruments that may be necessary
or useful to accomplish the purposes of this Agreement, including, without limitation, taking any
action which may be necessary in any applicable jurisdiction to perfect and to maintain the
perfection and priority of Secured Party’s interest in the Indemnification Collateral Account and
the Indemnification Collateral and Pledge Collateral Agent’s security interest (for the benefit of
Secured Party and the other Acquiror Indemnified Parties) in the Pledge Collateral and the Pledge
Collateral Accounts, including, without limitation, the filing of any financing and continuation
statements in any applicable jurisdiction and to take any action and to execute any instrument,
representing any dividend, interest payment or other distribution in respect of the Indemnification
Collateral or the Pledge Collateral or any part thereof and to give full discharge for the same as
Secured Party or Pledge Collateral Agent (for the benefit of Secured Party and the other Acquiror
Indemnified Parties) may deem necessary or advisable to accomplish the purpose of this Agreement.
To the extent permitted by law, Pledgor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest
and is irrevocable.



     SECTION 2.7 Taxes. Pledgor will include all income and gain, including any accrued income or
gain, to the extent any such income or gain is required to be taken into account for Tax purposes
pursuant to applicable Tax Law, on or with respect to the Eligible Collateral and Indemnification
Collateral held in the Indemnification Collateral Account and the Pledge Collateral held in any
Pledge Collateral Account including all gains, dividends, interest, proceeds, returns and other
amounts (such amounts, the “Includible Amounts”) in Pledgor’s gross income for federal, state,
local and other Tax purposes, whether or not the Includible Amounts have been distributed, and the
Includible Amounts shall be reported, as and to the extent required by Law, by the Securities
Intermediary and Pledge Collateral Agent to the IRS, or any other relevant Tax Authority, on IRS
Form 1099 or 1042S (or other appropriate form) as income and gain earned by the Pledgor, and
Pledgor shall duly pay any Taxes resulting therefrom. Any other Tax Returns required to be filed
will be prepared and filed by Pledgor with the IRS and any other relevant Tax Authority as required
by law. Pledgor shall indemnify the Secured Party against any and all Taxes relating to the
Eligible Collateral, Indemnification Collateral or Pledge Collateral, including all Taxes imposed
on a Secured Party to the extent that the Secured Party is required by applicable Tax Law
(including section 468B of the Code and any temporary or final regulations issued thereunder) to
include any Includible Amounts in the Secured Party’s gross income for federal, state, local or
other Tax purposes and all Taxes



8









 




resulting from the disposition or transfer of the Eligible Collateral, Indemnification
Collateral or Pledge Collateral (including any transfer or disposition that is made in order to
satisfy the payment of an Unpaid Obligation Amount), and Pledgor’s right to indemnity with respect
to such Taxes shall be considered an Unpaid Obligation Amount for purposes of this Agreement. The
Securities Intermediary and the Pledge Collateral Agent are holding the Indemnification Collateral
Account and the Pledge Collateral Accounts for the benefit of the Secured Party and not for their
own account. Pledgor shall pay or reimburse the Stock Purchase Contract Agent, the Pledge
Collateral Agent and the Securities Intermediary upon request for any transfer taxes or other taxes
relating to the Indemnification Collateral or the Pledge Collateral incurred in connection herewith
and shall indemnify and hold harmless the Stock Purchase Contract Agent, the Pledge Collateral
Agent and the Securities Intermediary from any amounts that they are obligated to pay in the way of
such taxes. Any payments of income from the Indemnification Account or the Pledge Collateral
Accounts shall be subject to withholding regulations then in force with respect to United States
taxes. The Pledgor shall provide the Stock Purchase Contract Agent, the Pledge Collateral Agent and
the Securities Intermediary with appropriate W-9 forms for tax identification number
certifications, or W-8 forms for non-resident alien certifications. Except as otherwise provided
herein, the Pledgor shall be entitled to any interest earnings in the Indemnification Account and
the Pledge Collateral Accounts. It is understood that the Pledge Collateral Agent and the
Securities Intermediary shall only be responsible for income reporting with respect to income
earned on the Pledge Collateral Accounts and the Indemnification Account and will not be
responsible for any other reporting. This paragraph shall survive notwithstanding any termination
of this Agreement or the resignation or removal of the Stock Purchase Contract Agent, the Pledge
Collateral Agent or the Securities Intermediary.




     SECTION 2.8 Voting Rights. Pledgor shall be entitled to exercise any and all voting and
other consensual rights, if any, pertaining to the Indemnification Collateral, the Pledge
Collateral or any part thereof for any purpose, subject to the limitations set forth in the
Investor Rights Agreement. Neither Pledge Collateral Agent nor Securities Intermediary shall have
any obligation to or responsibilities with respect to the exercise of voting or any other
consensual rights pertaining to the Indemnification Collateral, the Pledge Collateral or any part
thereof.



     SECTION 2.9 Ability to Enforce Collateral. In accordance with the terms of this Agreement,
the Indemnification Provisions and the Ancillary Agreements, from time to time, Secured Party may
determine that it or any of the other Acquiror Indemnified Parties is owed an amount in respect of
the Obligations, which amount may be equal in value to all or any part of the amount to the credit
of the Indemnification Collateral Account. In such event, which may occur multiple times as
provided in the agreements or provisions constituting the Obligations, Secured Party is entitled in
accordance with the Indemnification Provisions to make a demand upon Pledgor for, or otherwise
receive, payment for such Obligations (for its own benefit or the benefit of the other applicable
Acquiror Indemnified Parties). Pursuant to Section 11.05(a) of the Stock Purchase Agreement,
Pledgor may in some instances satisfy such demand by delivering Eligible Collateral that is
credited to the Indemnification Collateral Account with a Fair Value equal to the amount demanded.
Upon receipt from Pledgor of a request complying with the requirements of such Section 11.05(a)
that some or all of the amount demanded be paid using Eligible Collateral constituting
Indemnification Collateral, Secured Party agrees to instruct Securities Intermediary to debit the
requested number of Common Equity Units or shares of



9









 




Common Stock or Acquiror Interim Preferred Stock and/or withdraw the requested amount of cash
from the Indemnification Collateral Account and transfer such Common Equity Units, Common Stock,
Acquiror Interim Preferred Stock and/or cash to such account as Secured Party may designate in
payment of Obligations with a Fair Value represented by such transferred Common Equity Units,
Common Stock, Acquiror Interim Preferred Stock and/or cash. Securities Intermediary may
conclusively assume, in complying with such instructions from the Secured Party, that Secured Party
has received the foregoing request from Pledgor and that the amount of Eligible Collateral to be
withdrawn is in the proper amount and shall comply with such instructions as soon as practicable.
The failure of Pledgor to satisfy such demand or make such payment in full (in either case,
regardless of whether such demand is permitted by the Indemnification Provisions to be satisfied by
Pledgor prior to default by delivering a request to Secured Party in the manner described above
that Secured Party debit Eligible Collateral from the Indemnification Collateral Account), after
compliance by Secured Party with the terms of the applicable provisions or agreement constituting
the relevant Obligations and the terms of the Indemnification Provisions, including, without
limitation, any terms relating to the resolution of disagreements regarding the amount or existence
of any indemnification or other Obligation, shall constitute a default hereunder. It shall also
constitute a default hereunder if, in the case of any payment required to be made under Article II,
Section 6.12, Sections 11.02(a)(vii),(viii) or (ix) of the Stock Purchase Agreement or the
non-indemnification provisions of any Ancillary Agreement, or pursuant to the Special Asset
Protection Agreement, the Pledgor and Pledgor Parent shall fail to make such payment in full in
accordance with Sections 6.24 and 11.05(a)(i) and (ii). Upon the occurrence of a default for any
of the reasons set forth above, Secured Party may exercise in respect of the Indemnification
Collateral, and Pledge Collateral Agent may, for the benefit of Secured Party (whether for Secured
Party’s benefit or for the benefit of other Acquiror Indemnified Parties) and upon the instructions
of Secured Party, exercise in respect of the Pledge Collateral (subject to the last sentence of
Section 2.2), in addition to other rights and remedies provided for herein or in Section 11.05(a)
of the Stock Purchase Agreement or otherwise available to it, all the rights and remedies of a
secured party on default under the UCC, or under other applicable law, with respect to such
portions of the Indemnification Collateral having in the aggregate a value equal to the amount of
the Obligations then due to Secured Party but unpaid (the “Unpaid Obligation Amount”), such value
to equal, to the extent Eligible Collateral is applied, the Fair Value of such Eligible Collateral
and otherwise to equal such other amount as shall be determined in a manner consistent with
applicable law. Such instructions from Secured Party shall specify the portions of the
Indemnification Collateral with respect to which such remedies shall be exercised and shall certify
that such Indemnification Collateral has the value required by the preceding sentence. Secured
Party may also, without notice except as required by law, upon the occurrence and during the
continuance of any such default direct Securities Intermediary from time to time, to the extent
permitted by law, to (i) transfer, deliver, and pay over to Secured Party, or as Secured Party
directs, all or any part of the Indemnification Collateral and the proceeds thereof (including,
without limitation, any distributions of cash and securities made in respect of the Indemnification
Collateral, including Pledge Collateral to the extent it relates to Pledged Units being applied to
the payment of any Unpaid Obligation Amount) in an amount up to the Unpaid Obligation Amount and
Secured Party may apply any cash received from Securities Intermediary to the payment of the
Obligations then due to Secured Party but unpaid, and (ii) sell the Indemnification Collateral in
an amount up to the Unpaid Obligation Amount or any part thereof in one or more parcels at public or private sale, at






10









 







any exchange, broker’s board or at any of Secured Party’s or Securities Intermediary’s offices or
elsewhere, for cash, on credit or for future delivery, and upon such other terms as Secured Party
may deem commercially reasonable, and Secured Party may instruct Pledge Collateral Agent, as
secured party for the benefit of Secured Party (for its own benefit and the benefit of the other
Acquiror Indemnified Parties), to take such action with respect to the Pledge Collateral (subject
to the last sentence of Section 2.2), including, without limitation, the transfer at the time
specified by Secured Party of any such Pledge Collateral out of any Pledged Unit Subaccount to the
appropriate other subaccount under the Pledge Agreement, as may be necessary or desirable to
effectuate the transfer or sale of Indemnification Collateral described above; provided that the
aggregate value (calculated as provided in the Stock Purchase Agreement and herein) of the
Indemnification Collateral, any such transferred Pledge Collateral and the proceeds of the
disposition thereof applied to the payment of the Obligations at any time shall not exceed the
Unpaid Obligation Amount at such time, the amount of the Unpaid Obligations to be certified to
Securities Intermediary and Pledge Collateral Agent; and provided, further, that Secured Party
shall not exercise, or cause Pledge Collateral Agent to exercise, any rights with respect to the
Pledge Collateral that would breach the covenant set forth in the last sentence of Section 2.2 or
that would adversely affect the operation of the Pledge Agreement, any Stock Purchase Contract or
the Stock Purchase Contract Agreement. Pledgor acknowledges that to the extent the Indemnification
Collateral credited to the Indemnification Collateral Account or the Pledge Collateral credited to
the Pledge Collateral Accounts under the Pledge Agreement is of a type sold in a recognized market,
no notice by Secured Party or Pledge Collateral Agent to Pledgor shall be required prior to the
sale of any Indemnification Collateral or Pledge Collateral hereunder. In the event such notice is
given, neither Secured Party nor Pledge Collateral Agent shall be obligated to make any sale of
Indemnification Collateral or Pledge Collateral regardless of such notice having been given.
Secured Party or Pledge Collateral Agent, as the case may be, may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so adjourned. Upon any sale
or transfer of any Common Equity Units contained in the Indemnification Collateral, whether upon
Secured Party’s exercise of its rights as a secured party hereunder or upon the instructions of
Pledgor in connection with a substitution of Indemnification Collateral, the Pledge Collateral
associated with such Common Equity Units being sold shall, if such Common Equity Units shall
continue to be outstanding after such sale or other transfer, be transferred from the Pledge
Collateral Accounts to the other appropriate subaccounts with the Collateral Agent under the Pledge
Agreement.




     SECTION 2.10 Security Interest Absolute. All rights of Secured Party and Pledge Collateral
Agent for benefit of the Secured Party and the security interests granted hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional irrespective of: (i) any
change in time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure from the
Indemnification Provisions; (ii) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any guaranty, for all or any
of the Obligations; or (iii) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor in respect of the Obligations other than full and
final payment thereof.



11









 





     SECTION 2.11 Further Assurances. Pledgor, Secured Party, Securities Intermediary and Pledge
Collateral Agent agree that, at any time and from time to time at the expense of Pledgor, Pledgor
shall promptly execute and deliver all further instruments and documents and take all further
action that may be necessary or desirable or that Secured Party, Securities Intermediary or Pledge
Collateral Agent (upon the instructions of Secured Party, in the case of Securities Intermediary or
Pledge Collateral Agent) may reasonably request in order to create, perfect, and protect any pledge
or security interest granted or purported to be granted hereby or to enable Secured Party to
exercise and enforce its rights and remedies hereunder with respect to the Indemnification
Collateral and to enable Pledge Collateral Agent to exercise and enforce for the benefit of Secured
Party its rights and remedies hereunder with respect to the Pledge Collateral. If Pledgor shall
fail to execute such instruments or documents or to take such further action, Securities
Intermediary or Pledge Collateral Agent, upon the instructions of Secured Party, may do so in
Pledgor’s stead in their own names or as Pledgor’s attorneys-in-fact, and at Pledgor’s expense.



ARTICLE III

Appointment and Status of Securities Intermediary and

Pledge Collateral Agent;

Indemnification Collateral Account




     SECTION 3.1 Appointment; Identification of Indemnification Collateral. Secured Party and
Pledgor hereby appoint Securities Intermediary and Pledge Collateral Agent to perform their
respective duties as set forth herein and authorize Securities Intermediary to hold that portion of
the Indemnification Collateral consisting of cash or securities in the Indemnification Collateral
Account and Pledge Collateral Agent to hold that portion of the Pledge Collateral required to be so
held in the Pledge Collateral Accounts established under the Pledge Agreement in the name of the
Securities Intermediary or the name of its nominees, except as otherwise provided in the Pledge
Agreement. Securities Intermediary and Pledge Collateral Agent hereby accept such appointments and
agree to establish and maintain the Indemnification Collateral Account and the Pledge Collateral
Accounts under the Pledge Agreement and this Agreement and maintain appropriate records identifying
the Indemnification Collateral in the Indemnification Collateral Account as pledged by Pledgor to
Secured Party and the Pledge Collateral in the Pledge Collateral Accounts as pledged by Pledgor to
Pledge Collateral Agent for benefit of Secured Party. Pledgor hereby authorizes Securities
Intermediary to, and Securities Intermediary agrees with Pledgor, Secured Party and Pledge
Collateral Agent that Securities Intermediary will, comply with all Written Instructions, including
entitlement orders relating to the securities account that is part of the Indemnification
Collateral Account and instructions relating to the disposition of funds in the deposit account
that is part of the Indemnification Collateral Account, originated by Secured Party with respect to
the Indemnification Collateral, and that it will comply with all Written Instructions of Pledge Collateral Agent with respect to the Pledge Collateral
Accounts, without further consent or direction from Pledgor or any other party. Pledge Collateral
Agent agrees with Secured Party that it will act as secured party for benefit of




12











 




Secured Party with
respect to the Pledge Collateral and the Pledge Collateral Accounts under the Pledge Agreement and
will comply with all Written Instructions originated by Secured Party with respect to the Pledge
Collateral and the Pledge Collateral Accounts without further consent or direction from Pledgor or
any other party.




     SECTION 3.2 Status of Securities Intermediary; Funds not to be Invested. Securities
Intermediary represents that it is a securities intermediary within the meaning of Section
8-102(a)(14) of the UCC with respect to the Indemnification Collateral Account and Pledge
Collateral Accounts. Pledgor, Secured Party, Pledge Collateral Agent and Securities Intermediary
intend that all assets, including cash, held in the securities account constituting part of the
Indemnification Collateral Account and in the Pledge Collateral Accounts under the Pledge Agreement
shall be treated as financial assets, but agree that any funds being held in the Indemnification
Collateral Account shall be held in the deposit account of the Securities Intermediary that
comprises part of the Indemnification Collateral Account. The parties agree that Securities
Intermediary is a bank with respect to any deposit account comprising part of the Indemnification
Collateral Account. The parties further agree that any cash held in the Indemnification Collateral
Account shall not be invested and shall not earn interest.



     SECTION 3.3 Representations, Warranties and Covenants of Securities Intermediary. Securities
Intermediary represents and warrants to, and covenants with, Secured Party and Pledgor as follows:



          (i) While it is acting as Securities Intermediary hereunder, Securities Intermediary will
remain qualified as a securities intermediary and as a bank. Securities Intermediary, in the
ordinary course of its business, maintains and, while it is acting as Securities Intermediary
hereunder, will continue to maintain securities accounts for others, and, while it is acting as
Securities Intermediary hereunder, will continue to make deposit accounts available to customers.



          (ii) The portion of the Indemnification Collateral Account that is intended to be a
securities account and the Pledge Collateral Accounts are and will be maintained by Securities
Intermediary as securities accounts to which financial assets are or may be credited, and the
portion of the Indemnification Collateral Account that is intended to be a deposit account will be
maintained as a deposit account by Securities Intermediary in its capacity as a bank.



          (iii) Except for the rights and interests of Secured Party, Pledge Collateral Agent and
Pledgor described in this Agreement and the Pledge Agreement, Securities Intermediary has not been
advised of any right or claim (including any adverse claim) to, or interest in, the Indemnification
Collateral Account, the Indemnification Collateral, the Pledge Collateral or the Pledge Collateral
Accounts.



          (iv) All property delivered to Securities Intermediary to be credited to the securities
account constituting part of the Indemnification Collateral Account or to the Pledge
Collateral Accounts will be in the possession of Securities Intermediary or to its credit on
the books of other securities intermediaries or Depositories in a quantity corresponding to the
types and aggregate amounts credited to such securities account and all other securities accounts
maintained by Securities Intermediary.



13









 





          (v) Securities Intermediary will not change the names or account numbers of either the
securities account or the deposit account constituting part of the Indemnification Collateral
Account, or of the Pledge Collateral Accounts, without the prior written consent of Secured Party.



          (vi) Other than this Agreement and the Pledge Agreement, Securities Intermediary has not
entered into and will not enter into any agreement with any person relating to the Indemnification
Collateral, the Indemnification Collateral Account or any financial asset or cash credited to it or
to the Pledge Collateral, and the Pledge Collateral Accounts or any financial asset or cash
credited to them, including any control agreement or any agreement that purports to limit or
condition the obligation of Securities Intermediary to comply with entitlement orders or
instructions of Secured Party or the entitlement orders of Pledge Collateral Agent. Securities
Intermediary has not agreed to comply, will not comply and will not agree to comply with
entitlement orders or instructions of any Person other than Secured Party with respect to the
Indemnification Collateral Account or the Indemnification Collateral and Pledge Collateral Agent
with respect to the Pledge Collateral and the Pledge Collateral Accounts.



          (vii) The “securities intermediary’s jurisdiction” (within the meaning of Section 8-110 of
the UCC) of Securities Intermediary is and will remain for the term of this Agreement the State of
New York.



     SECTION 3.4 Representations, Warranties and Covenants of Pledge Collateral Agent. Pledge
Collateral Agent represents and warrants to, and covenants with, Secured Party as follows:



     (a) Except for the rights and interests of Secured Party and Pledgor described in this
Agreement and the Pledge Agreement, Pledge Collateral Agent has not been advised of any right or
claim (including any adverse claim) to or interest in the Pledge Collateral or the Pledge
Collateral Accounts.



     (b) All property delivered to Pledge Collateral Agent to be credited to the Pledge
Collateral Accounts will be in the possession of Securities Intermediary or to its credit on the
books of other securities intermediaries or Depositories in a quantity corresponding to the types
and aggregate amounts credited to such securities account and all other securities accounts
maintained by Securities Intermediary.



     (c) Pledge Collateral Agent will not change the names or account numbers of the Pledge
Collateral Accounts without the prior written consent of Secured Party.



     (d) Other than this Agreement and the Pledge Agreement, Pledge Collateral Agent has not
entered into and will not enter into any agreement with any Person relating to the Pledge
Collateral Accounts, including any control agreement or any agreement that purports to limit
or condition the obligation of Pledge Collateral Agent to follow the instructions of Secured Party
or of Securities Intermediary to comply with entitlement orders or instructions of Pledge
Collateral Agent with respect to the Pledge Collateral Accounts. Pledge Collateral Agent has not
agreed to comply, will not comply and will not agree to comply with entitlement orders or any other



14









 




instructions of any person other than Secured Party with respect to the Pledge Collateral and the
applicable Collateral Accounts, except as set forth in the Pledge Agreement.




     SECTION 3.5 Representations, Warranties and Covenants of Pledgor. Pledgor represents and
warrants to, and covenants with, Secured Party, Pledge Collateral Agent and Securities Intermediary
as follows:



     (a) It has not granted and will not grant, or permit to exist, any security or other
interest in or any right or claim (including any adverse claim) to the Indemnification Collateral
Account, the Indemnification Collateral, the Pledge Collateral or the Pledge Collateral Accounts
except those contemplated by this Agreement and the Pledge Agreement; and



     (b) Other than this Agreement, the Pledge Agreement and any customary funds transfer,
account or other customer agreement with Securities Intermediary not inconsistent with this
Agreement, Pledgor has not entered into and will not enter into any agreement with any person
relating to the Indemnification Collateral Account, the Indemnification Collateral, the Pledge
Collateral or the Pledge Collateral Accounts.



     SECTION 3.6 Use of Depositories. Secured Party and Pledgor hereby authorize Securities
Intermediary to utilize Depositories in connection with its performance hereunder. Indemnification
Collateral or Pledge Collateral held by Securities Intermediary in a Depository will be held
subject to the rules, terms and conditions of such Depository. Where Indemnification Collateral or
Pledge Collateral is held in a Depository, Securities Intermediary shall identify on its records as
belonging to Pledgor and pledged to Secured Party or Pledge Collateral Agent for the benefit of
Secured Party, as appropriate, a quantity of securities as part of a fungible bulk of securities
held in Securities Intermediary’s account at such Depository. Securities deposited in a Depository
will be represented in accounts which include only assets held by Securities Intermediary for its
customers.



     SECTION 3.7 Merger, Conversion, Consolidation or Succession to Business. Any Person into
which Pledge Collateral Agent or Securities Intermediary may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or consolidation to
which Pledge Collateral Agent or Securities Intermediary shall be a party, or any person succeeding
to all or substantially all of the corporate trust business of Pledge Collateral Agent or
Securities Intermediary shall be the successor of Pledge Collateral Agent or Securities
Intermediary, respectively, hereunder without the execution or filing of any paper with any party
hereto or any further act on the part of any of the parties hereto except where an instrument of
transfer or assignment is required by law to effect such succession, anything herein to the
contrary notwithstanding; provided, however, that if Pledge Collateral Agent and Securities
Intermediary are no longer the same corporate entity, such merger,
conversion, consolidation or succession to business shall instead be treated as a simultaneous
resignation of Pledge Collateral Agent and Securities Intermediary hereunder.



     SECTION 3.8 Rights in Other Capacities. Pledge Collateral Agent and Securities Intermediary
and their affiliates may (without having to account therefor to Pledgor, Secured Party or Stock
Purchase Contract Agent) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with Pledgor, Secured



15









 




Party or Stock
Purchase Contract Agent, any other person interested herein and any holder of Common Equity Units
(and any of their respective subsidiaries or affiliates) as if it were not acting as Pledge
Collateral Agent or Securities Intermediary, as the case may be, and Pledge Collateral Agent,
Securities Intermediary and their affiliates may accept fees and other consideration from Pledgor,
Secured
Party, Stock Purchase Contract Agent and any holder of Common Equity Units without having
to account for the same to the Pledgor or Secured Party, subject to its other representations and
covenants herein.




ARTICLE IV

Collateral Services




     SECTION 4.1 Delivery of Indemnification Collateral. At the Closing (as defined in the Stock
Purchase Agreement), Pledgor shall deliver or cause to be delivered in the method specified in
Section 2.3 to Securities Intermediary the Initial Collateral for credit to and/or deposit in the
Indemnification Collateral Account, and Pledge Collateral Agent shall establish the Pledge
Collateral Accounts and credit the Pledge Collateral thereto as provided in the Pledge Agreement.



     SECTION 4.2 Release of Indemnification Collateral. At any time on or after each of the dates
which is the 12-month, 24-month and 30-month anniversary of the Closing Date (or if, in each case,
such date is not a Business Day, on the next succeeding Business Day), or as otherwise provided in
Section 11.05(c) of the Stock Purchase Agreement, Pledgor shall be entitled to withdraw
Indemnification Collateral from the Indemnification Collateral Account to the extent and in the
amount and manner set forth in such Section 11.05(c) (the amount permitted to be withdrawn being
the “Excess Collateral Amount”); provided, however, that Pledgor has delivered written notice to
Secured Party, with a copy to Securities Intermediary, at least ten (10) Business Days in advance
of the proposed date of withdrawal detailing the Indemnification Collateral proposed to be
withdrawn and specifying the account or address to which the withdrawn Collateral should be
delivered; provided, further, that Securities Intermediary has received a Written Instruction
and/or entitlement order from Secured Party at least five (5) Business Days in advance of the
requested withdrawal authorizing the withdrawal of such Excess Collateral Amount; and provided,
further, that upon the occurrence of a Parent Bankruptcy, no Indemnification Collateral shall be
released hereunder pursuant to Sections 11.05(c) except to the extent, in the manner and at
the time or times permitted thereby; provided, that in connection with each such withdrawal all of
the conditions in this Section 4.2 have been complied with. Secured Party hereby agrees
that it will timely deliver an appropriate entitlement order to the Securities Intermediary
adequate to permit a permitted transfer of any Excess Collateral Amount. If any Common Equity
Units are withdrawn from the Indemnification Collateral Account, the corresponding Pledge
Collateral shall be transferred from the Pledge Unit Subaccounts to the
appropriate other subaccounts under the Pledge Agreement. In order to facilitate the
withdrawal hereunder of Indemnification Collateral and Pledge Collateral while such Collateral is
evidenced by securities, the Secured Party shall provide the appropriate registrar for such
Collateral a sufficient supply of securities for purposes of issuance and exchange and shall cause
such registrars to coordinate and cooperate with the Securities Intermediary and Pledge Collateral
Agent to effect such withdrawal. The Securities Intermediary



16









 




and the Pledge Collateral Agent, as
such, shall have no responsibility for any delay by any registrar to provide securities to effect
any such withdrawal or the related issuance and exchange.




     If any Indemnification Collateral is required to remain in the Indemnification Collateral
Account after the 30-month anniversary of the Closing Date, Pledgor similarly shall be entitled
thereafter to withdraw any Excess Collateral Amount; provided, however, that Pledgor has delivered
written notice to Secured Party and Securities Intermediary at least ten (10) Business Days in
advance of the proposed date of withdrawal detailing the Indemnification Collateral proposed to be
withdrawn and specifying the account or address to which the withdrawn Collateral should be
delivered; and provided, further, that Securities Intermediary has received a Written Instruction
and/or entitlement order from Secured Party at least five (5) Business Days in advance of the
requested withdrawal authorizing the withdrawal of such Excess Collateral Amount. Secured Party
hereby agrees that it will timely deliver an appropriate entitlement order to Securities
Intermediary adequate to permit a permitted transfer of any Excess Collateral Amount. If any
Common Equity Units are withdrawn from the Indemnification Collateral Account, the corresponding
Pledge Collateral shall be transferred from the Pledge Collateral Accounts to the appropriate other
Collateral Accounts under the Pledge Agreement.



     If Secured Party does not intend to deliver an instruction and/or entitlement order to
Securities Intermediary authorizing a withdrawal under the circumstances described above, Secured
Party shall deliver to Pledgor a notice providing detail of the defects in Pledgor’s withdrawal
request not later than five (5) Business Days prior to the proposed date of withdrawal. Secured
Party will give written notice to Securities Intermediary and Pledge Collateral Agent upon the
satisfaction in full of the Obligations. If any Common Equity Units remain in the Indemnification
Collateral Account upon such satisfaction in full (and provided such notice has been received by
the Securities Intermediary and the Pledge Collateral Agent), such Common Equity Units will be
transferred to Pledgor or upon its order and the corresponding Pledge Collateral shall be
transferred from the Pledge Collateral Accounts to the other appropriate subaccounts under the
Pledge Agreement.



     SECTION 4.3 Substitutions. Subject to the provisions of this Section 4.3, Pledgor may
substitute Eligible Collateral for any Indemnification Collateral then held in the Indemnification
Collateral Account. As a condition to effecting a substitution, at least ten (10) Business Days in
advance of the proposed date of substitution, Pledgor shall be required to deliver written notice
to Secured Party, with a copy to Securities Intermediary, specifying: (i) the proposed date of
substitution, (ii) the Eligible Collateral proposed to be transferred to the Indemnification
Collateral Account and (iii) the Indemnification Collateral proposed to be withdrawn from the
Indemnification Collateral Account. Pledgor shall be entitled to effect the proposed substitution;
provided, that Securities Intermediary has received a Written Instruction and/or entitlement order
from Secured Party at least five (5) Business Days in advance of the requested withdrawal
authorizing Securities Intermediary to effect the substitution and that, prior to such
substitution, the Pledgor shall have delivered to the Secured Party a written opinion of outside
counsel for the Pledgor, in form and substance reasonably acceptable to the Secured Party stating
that (i) this Agreement is effective to create a security interest in the Eligible Collateral in
favor of the Secured Party; (ii) by virtue of this Agreement, the Secured Party’s security interest
in the Eligible Collateral has been perfected; and (iii) no adverse claim to a financial asset
credited to a



17









 




securities account constituting part of the Indemnification Collateral Account may be
asserted against the Secured Party’s security interest in the Eligible Collateral. Securities
Intermediary shall be entitled to conclusively assume that such opinion has been delivered unless
Secured Party gives it written notice to the contrary. Secured Party hereby agrees that it will
timely deliver an appropriate entitlement order to the Securities Intermediary adequate to permit a
permitted substitution of Indemnification Collateral; provided, however, that it shall not be
required to deliver such an instruction and/or entitlement order unless the Fair Value of the
Eligible Collateral proposed to be transferred to the Indemnification Collateral Account is at
least equal to the Fair Value of the Indemnification Collateral proposed to be withdrawn from the
Indemnification Collateral Account. If Secured Party does not intend to deliver an instruction
and/or entitlement order to Securities Intermediary authorizing a substitution of Indemnification
Collateral under the circumstances described above Secured Party shall deliver to Pledgor a notice,
not later than five (5) Business Days prior to the proposed date of withdrawal, providing details
of the shortfall in the Fair Value of the Eligible Collateral to be transferred as compared to the
Fair Value of the Indemnification Collateral proposed to be withdrawn. If any substitution
involves the withdrawal of Common Equity Units from the Indemnification Collateral Account, the
Pledge Collateral corresponding to such Common Equity Units shall be transferred from the Pledge
Collateral Accounts to the other appropriate subaccounts under the Pledge Agreement. Substitutions
of Pledge Collateral pursuant to the terms of Sections 5.1(c), 5.2 and 5.3 of the Pledge Agreement
shall be effected in accordance with such terms and Section 4.4(a) hereof. Notwithstanding the
foregoing, Pledgor will be permitted to substitute any proceeds of a sale or transfer of Eligible
Collateral permitted under the Investor Rights Agreement following reasonable notice to Secured
Party with a copy to Securities Intermediary, and Secured Party hereby agrees that it will timely
deliver an appropriate securities entitlement order to Securities Intermediary adequate to permit
such substitution of Indemnification Collateral.




     SECTION 4.4 Common Equity Units as Collateral.



     (a) Collateral Substitutions. If Pledgor effects a Collateral Substitution (as such term
is defined in the Stock Purchase Contract Agreement) with respect to any Stock Purchase Contracts
forming part of Common Equity Units credited to the Indemnification Collateral Account by
exercising its right to do so under the Stock Purchase Contract Agreement, the Stock Purchase
Contracts and the Pledge Agreement, the Normal Common Equity Units or Stripped Common Equity Units
(as such terms are defined in the Stock Purchase Contract Agreement) created pursuant to such
Collateral Substitution, but not the Debt Securities or Treasury Securities (as such terms are
defined in the Stock Purchase Contact Agreement) released from the security interest created
pursuant to the Pledge Agreement, shall, unless otherwise agreed by Secured Party, be credited to
the Indemnification Collateral Account as additional Indemnification Collateral, and the Debt
Securities or Treasury Securities released from the security interest created pursuant to the
Pledge Agreement shall be released from the security
interest created pursuant to this Agreement and delivered to the Pledgor. Secured Party shall
be entitled to retain the Normal Common Equity Units or Stripped Common Equity Units created
pursuant to such Collateral Substitution without there being any reduction in the Obligations as a
result of such retention.



18









 





     (b) Cash Settlement. If Pledgor effects an Early Settlement, Cash Settlement or Cash
Merger Early Settlement (as such terms are defined in the Stock Purchase Contract Agreement) other
than as described in Section 4.4(d) below of any Stock Purchase Contracts forming part of Common
Equity Units credited to the Indemnification Collateral Account for cash by exercising its right to
do so under the Stock Purchase Contract Agreement, the Stock Purchase Contracts and the Pledge
Agreement, or duly elects not to exercise its Put Right upon a Final Failed Remarketing (as such
terms are defined in the Stock Purchase Contract Agreement and Pledge Agreement, respectively), the
Common Stock so acquired, but not the cash paid therefor, shall, unless otherwise agreed by Secured
Party, be credited to the Indemnification Collateral Account as additional Indemnification
Collateral. Secured Party shall be entitled to retain the cash paid as the purchase price for such
Common Stock without there being any reduction in the Obligations as a result of such retention.
The Debt Securities or Treasury Securities in the Pledge Collateral Accounts relating to the Stock
Purchase Contracts pursuant to which such cash purchase was made shall be released from the Pledge
Collateral Accounts to Pledgor upon such purchase pursuant to the terms of the Pledge Agreement.



     (c) Remarketing. If Pledgor purchases Common Stock with the cash proceeds of any
remarketing, in accordance with the terms of the Stock Purchase Contract Agreement, the Stock
Purchase Contracts and the Pledge Agreement, of Debt Securities forming part of the Common Equity
Units credited to the Indemnification Collateral Account, the Common Stock so acquired, but not the
cash received therefore, shall, unless otherwise agreed by Secured Party, be credited to the
Indemnification Collateral Account as additional Indemnification Collateral. Secured Party shall
be entitled to retain cash proceeds as the purchase price for such Common Stock without there being
any reduction in the Obligations as a result of such retention. The Debt Securities sold in such
remarketing that were credited to the Pledge Collateral Accounts shall be released from the Pledge
Collateral Accounts pursuant to the terms of the Pledge Agreement.



     If Pledgor purchases Common Stock pursuant to Stock Purchase Contracts relating to any Common
Equity Units credited to the Indemnification Collateral Account in consideration for the cash
proceeds of Treasury Securities, the Common Stock so acquired shall, unless otherwise agreed by
Secured Party, be credited to the Indemnification Collateral Account as additional Indemnification
Collateral. Secured Party shall be entitled to retain such consideration as the purchase price for
such Common Stock without there being any reduction in the Obligations as a result of such
retention.



     (d) Put Right; Settlement in Kind. If Pledgor purchases Common Stock pursuant to Stock
Purchase Contracts relating to any Common Equity Units credited to the Indemnification Collateral
Account in consideration for any Debt Securities pursuant to its deemed exercise of the Put Right
or in connection with a Cash Merger Early Settlement (each as defined in the Stock Purchase
Contract Agreement), the Common Stock so acquired, but not such Debt Securities, shall, unless
otherwise agreed by Secured Party, be credited to the Indemnification Collateral
Account as additional Indemnification Collateral. Secured Party shall be entitled to retain
such consideration as the purchase price for such Common Stock without there being any reduction in
the Obligations as a result of such retention, and such Debt Securities or Treasury Securities
shall be released from the Pledge Collateral Accounts pursuant to the Pledge Agreement.



19









 





     (e) Termination Events. If, pursuant to Stock Purchase Contracts relating to any Common
Equity Units credited to the Indemnification Collateral Account, Pledgor takes Debt Securities or
Treasury Securities free and clear of the lien of the Pledge Agreement rather than Common Stock as
a result of a Termination Event (as defined in the Stock Purchase Contract Agreement), such Debt
Securities or Treasury Securities so acquired, shall, unless otherwise agreed by Secured Party, be
credited to the Indemnification Collateral Account as additional Indemnification Collateral and
shall be released from the Pledge Collateral Accounts pursuant to the Pledge Agreement.



     (f) Cooperation. So long as no default has occurred and is continuing, upon request of
Pledgor to exercise any of its rights with respect to Common Equity Units credited to the
Indemnification Collateral Account as set forth in Sections 4.4(a) through (d) above, Secured Party
and Securities Intermediary shall cooperate with Pledgor, including by delivering any appropriate
instruction or notice required pursuant to the terms of the Stock Purchase Contract Agreement and
Pledge Agreement, to effect the exercise of such rights.



     SECTION 4.5 Treatment of Proceeds. Except as set forth in Sections 2.9 and 4.4 hereof, all
dividends, interest, distributions, amounts received in respect of redemption and all other
proceeds of the Indemnification Collateral shall be released from the security interest created
pursuant to this Agreement and Securities Intermediary shall promptly upon receipt thereof (i)
credit to the Collateral Agent for distribution to the Pledgor as provided in the Pledge Agreement
all such proceeds relating to the Pledge Collateral and (ii) deliver to Pledgor all such proceeds
not relating to the Pledge Collateral.



     SECTION 4.6 Exclusive Control. Securities Intermediary is authorized to act upon any Written
Instructions, including entitlement orders with respect to the securities account that is part of
the Indemnification Collateral Account and instructions relating to the deposit account that is
part of the Indemnification Collateral Account, solely and exclusively from Secured Party.
Securities Intermediary is authorized to act upon any Written Instructions, including entitlement
orders with respect to the Pledge Collateral Accounts, solely and exclusively from Pledge
Collateral Agent. Secured Party hereby covenants for the benefit of Pledgor that Secured Party
will not originate entitlement orders or instructions concerning the Indemnification Collateral
Account or the Indemnification Collateral or cause Pledge Collateral Agent to take any action with
respect to the Pledge Collateral or the Pledge Collateral Accounts except as provided in Sections
2.9, 4.2, 4.3 and 4.4 hereof with respect to payment of Obligations when due, the substitution,
withdrawal, release or transfer of Indemnification Collateral or Pledge Collateral, the treatment
of proceeds and the exercise its rights as a secured party upon default. The foregoing covenant is
for the benefit of Pledgor only and will not be deemed to constitute a limitation on Secured
Party’s right, as between Securities Intermediary and Secured Party, to originate entitlement
orders and instructions with respect to the Indemnification Collateral Account and the
Indemnification Collateral, on Securities Intermediary’s obligation to comply
with those entitlement orders and instructions without further consent by Pledgor, on Secured
Party’s right, as between Secured Party and Pledge Collateral Agent, to instruct Pledge Collateral
Agent to take action with respect to the Pledge Collateral or the Pledge Collateral Accounts, or on
Pledge Collateral Agent’s obligation to comply with those instructions without further consent by
Pledgor. Securities Intermediary agrees that it will, without inquiry or



20









 




consent of Pledgor or any
person acting or purporting to act on behalf of Pledgor, comply with Written Instructions
(including entitlement orders and instructions relating to the deposit account that is part of the
Indemnification Collateral Account) from Secured Party with respect to the Indemnification
Collateral Account. Without prejudice to the exclusive right of Secured Party to give entitlement
orders, if Securities Intermediary receives conflicting directions with respect to the
Indemnification Collateral Account or the Indemnification Collateral from Pledgor and Secured
Party, Securities Intermediary will act at the direction of Secured Party and will be fully
protected in so acting. Pledge Collateral Agent agrees to comply with instructions given pursuant
to the Pledge Agreement and with instructions given by Secured Party pursuant to this Agreement
without further consent from Pledgor. If instructions of Secured Party to Pledge Collateral Agent
pursuant to this Agreement conflict with the obligations of the Pledge Collateral Agent under the
Pledge Agreement, Pledge Collateral Agent shall be entitled to comply with the Pledge Agreement and
not to comply with such conflicting instructions given pursuant to this Agreement.




     SECTION 4.7 Statements. Securities Intermediary shall furnish Pledgor and Secured Party with
monthly Indemnification Collateral Account statements in accordance with its customary procedures.
Securities Intermediary shall also furnish Pledgor and Secured Party with monthly statements with
respect to the Pledge Collateral Accounts in accordance with its customary procedures. The
requirements of this Section 4.7 shall be performed by the Securities Intermediary by granting each
of the Pledgor and the Secured Party on-line read only access to the Indemnification Collateral
Account and the Pledge Collateral Accounts.



     SECTION 4.8 Notice of Adverse Claims. Upon receipt of written notice of any lien,
encumbrance or adverse claim against the Indemnification Collateral Account, the Pledge Collateral
Accounts or any portion of the Indemnification Collateral or Pledge Collateral, Securities
Intermediary shall use reasonable efforts to notify Secured Party and Pledgor as promptly as
practicable under the circumstances.



     SECTION 4.9 Subordination of Lien; Set-off. The parties agree that any security interest in
or lien on, or right of set-off with respect to, any of the Indemnification Collateral or the
Pledge Collateral that Securities Intermediary or Pledge Collateral Agent may now or in the future
may have is hereby subordinated to the security interest of Secured Party hereunder, except to the
extent of any fees, charges, expenses and other amounts owed to Securities Intermediary or Pledge
Collateral Agent and incurred in connection with the performance of the duties of Securities
Intermediary hereunder and the maintenance and operation of the Indemnification Collateral Account
and the Indemnification Collateral, for which Securities Intermediary shall have a prior claim to
the Indemnification Collateral.



     SECTION 4.10 No Release Without Consent. Securities Intermediary and Pledge Collateral
Agent agree that they will not extend any credit nor make any loans secured by the
Indemnification Collateral, the Indemnification Collateral Account, the Pledge Collateral or
the Pledge Collateral Accounts, including without limitation any so-called “margin loans.” Except
as provided in Sections 2.9, 4.2, 4.3 and 4.4 hereof or in the Pledge Agreement, no payments of
principal or interest, or addition, substitution, sale, transfer, release, withdrawal or other



21









 




alienation of Indemnification Collateral or the Pledge Collateral shall be made except upon the
written consent of Secured Party.




ARTICLE V

General Terms and Conditions




     SECTION 5.1 Standard of Care; Limitation of Liability; Indemnification.



     (a) Except as otherwise expressly provided herein, Securities Intermediary and Pledge
Collateral Agent shall not be liable for any costs, expenses, damages, liabilities or claims,
including attorneys’ fees (“Losses”) incurred by or asserted against Pledgor or Secured Party,
except those Losses arising out of the gross negligence or willful misconduct of Securities
Intermediary or Pledge Collateral Agent, respectively. Neither Securities Intermediary nor Pledge
Collateral Agent shall have any liability whatsoever for the action or inaction of any Depository.
In no event shall Securities Intermediary or Pledge Collateral Agent be liable to Pledgor, Secured
Party or any third party for special, indirect or consequential damages, or lost profits or loss of
business, arising in connection with this Agreement, nor shall Securities Intermediary or Pledge
Collateral Agent be liable:




     (i) for acting in accordance with any Written Instructions actually received by
Securities Intermediary or Pledge Collateral Agent and reasonably believed by Securities
Intermediary or Pledge Collateral Agent, respectively, to have been given by an
Authorized Person of Secured Party;




     (ii) for conclusively presuming that all disbursements of cash or deliveries of
securities directed by Secured Party by a Written Instruction are in accordance with
this Agreement, the Pledge Agreement or the Indemnification Provisions, as the case may
be,




     (iii) for holding property in any particular country, including, but not
limited to, losses resulting from nationalization, expropriation or other governmental
actions; regulation of the banking or securities industry; exchange or currency controls
or restrictions, devaluations or fluctuations; availability of cash or securities or
market conditions which prevent the transfer of property or execution of securities
transactions or affect the value of property; or




     (iv) for the insolvency of any depository or for any Indemnification
Collateral or Pledge Collateral held by such depository;


provided, however, that Securities Intermediary or Pledge Collateral Agent has not acted with gross
negligence or engaged in willful misconduct with respect to the specific Loss against which
indemnification is sought.




     (b) Securities Intermediary and Pledge Collateral Agent each shall have the right to
appoint agents in connection with any of their respective duties hereunder, and the Securities
Intermediary and Pledge Collateral Agent shall not be liable for any action taken or omitted by
such agents selected in good faith and with due care in accordance with the terms of this



22









 




Agreement; provided, however, that neither the Securities Intermediary nor the Pledge Collateral
Agent shall be permitted to appoint any subcustodian in connection with any of their respective
duties hereunder. The appointment of agents pursuant to this Section 5.1(b) shall be subject to
prior written consent of the Secured Party, which consent shall not be unreasonably withheld.




     (c) AIG agrees to indemnify Securities Intermediary and Pledge Collateral Agent and hold
Securities Intermediary and Pledge Collateral Agent harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties and expenses sustained or incurred by or asserted
against Securities Intermediary or Pledge Collateral Agent, as the case may be, by reason of or as
a result of any action or inaction, or arising out of the performance of Securities Intermediary
or Pledge Collateral Agent, respectively, hereunder, including reasonable fees and expenses of
counsel incurred by Securities Intermediary or Pledge Collateral Agent, as the case may be, in a
defense of claims by AIG, Pledgor or Secured Party; provided, AIG shall not indemnify either
Securities Intermediary or Pledge Collateral Agent for those losses arising out of Securities
Intermediary’s or Pledge Collateral Agent’s gross negligence or willful misconduct. This
indemnity shall be a continuing obligation of AIG and its successors and assigns, notwithstanding
the resignation or removal of Securities Intermediary or Pledge Collateral Agent or the
termination of this Agreement.



     SECTION 5.2 No Obligation Regarding Quality of Collateral. Without limiting the generality
of Section 5.1, neither Securities Intermediary nor Pledge Collateral Agent shall be under any
obligation to inquire into, and shall not be liable for, any losses incurred by Pledgor, Secured
Party or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid
Indemnification Collateral or Pledge Collateral, or Indemnification Collateral or Pledge Collateral
which otherwise is not freely transferable or deliverable without encumbrance in any relevant
market. Neither Securities Intermediary nor Pledge Collateral Agent shall be required to advise any
party as to selling or retaining, or taking or refraining from taking any action with respect to,
any securities or other property deposited hereunder.



     SECTION 5.3 No Responsibility Concerning Indemnification Provisions. It is understood and
agreed that, notwithstanding references to the Indemnification Provisions in this Agreement,
neither Securities Intermediary nor Pledge Collateral Agent has any interest in, or any duty,
responsibility or obligation with respect to, the Indemnification Provisions (including without
limitation, any duty, responsibility or obligation to monitor Pledgor’s or Secured Party’s
compliance with the Indemnification Provisions or to know the terms of the Indemnification
Provisions).



     SECTION 5.4 No Duty of Oversight. Securities Intermediary is not at any time under any duty
to monitor the value of any Indemnification Collateral in the Indemnification Collateral Account or
whether the Indemnification Collateral is of a type required or permitted to be held in the
Indemnification Collateral Account.



     SECTION 5.5 Advice of Counsel. Securities Intermediary and Pledge Collateral Agent may, with
respect to questions of law, obtain the advice of counsel selected in good faith and shall be fully
protected with respect to anything done or omitted by it in good faith in conformity with such
advice.



23









 





     SECTION 5.6 No Collection Obligations. Securities Intermediary and Pledge Collateral Agent
shall be under no obligation to take action to collect any amount payable on Indemnification
Collateral in default, or if payment is refused after due demand and presentment.



     SECTION 5.7 Fees and Expenses. AIG agrees to pay to Securities Intermediary and Pledge
Collateral Agent the fees as may be agreed upon from time to time. AIG shall reimburse Securities
Intermediary and Pledge Collateral Agent for all reasonable costs associated with transfers of
Indemnification Collateral and Pledge Collateral to Securities Intermediary and records kept in
connection with this Agreement. AIG shall also reimburse Securities Intermediary and Pledge
Collateral Agent for reasonable out-of-pocket expenses (including reasonable attorneys’ fees and
expenses) which are a normal incident of the services provided hereunder. The obligations of AIG
under this Section shall be a continuing obligation of AIG, its successors and assigns,
notwithstanding the resignation or removal of Securities Intermediary or Pledge Collateral Agent or
the termination of this Agreement.



     SECTION 5.8 Effectiveness of Instructions; Reliance; Risk Acknowledgements; Additional Terms.



     (a) Secured Party shall have the right, by one or more written instruments executed and
delivered to Securities Intermediary or Pledge Collateral Agent, to direct the time, method and
place of conducting any proceeding for the realization of any right or remedy available to
Securities Intermediary or Pledge Collateral Agent, or of exercising any power conferred on
Securities Intermediary or Pledge Collateral Agent, or to direct the taking or refraining from
taking of any action authorized by this Agreement; provided, however, that (i) such direction shall
not conflict with the provisions of any law or of this Agreement or involve Securities Intermediary
or Pledge Collateral Agent in personal liability and (ii) Securities Intermediary or Pledge
Collateral Agent shall be indemnified to its satisfaction as provided herein. Subject to the terms
below, Securities Intermediary and Pledge Collateral Agent shall be entitled, in the absence of bad
faith, to rely upon any Written Instructions actually received by Securities Intermediary or Pledge
Collateral Agent, respectively, and reasonably believed by it to have been duly authorized and
delivered by Secured Party.



     (b) In each case that Securities Intermediary or Pledge Collateral Agent may or is
required hereunder to take any action, including without limitation to make any
determination or judgment, to give consents, to exercise rights, powers or remedies, to
release or sell Indemnification Collateral or Pledge Collateral or otherwise to act
hereunder, the Securities Intermediary or Pledge Collateral Agent may seek direction from
Secured Party. Securities Intermediary or Pledge Collateral Agent shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction from Secured Party. Unless direction is otherwise expressly provided herein,
if Securities Intermediary or Pledge Collateral Agent shall
request direction from Secured Party with respect to any action, Securities
Intermediary or Pledge Collateral Agent shall be entitled to refrain from such action
unless and until such agent shall have received direction from Securities Intermediary or
Pledge Collateral Agent, and the agent shall not incur liability to any Person by reason of
so refraining.




24












 





     (c) If Securities Intermediary or Pledge Collateral Agent receives Written
Instructions which appear on their face to have been transmitted via (i) computer
facsimile, email, the Internet or other insecure electronic method, or (ii) secure
electronic transmission containing applicable authorization codes, passwords and/or
authentication keys, Secured Party understands and agrees that neither Securities
Intermediary nor Pledge Collateral Agent can determine the identity of the actual sender of
such Written Instructions and that Securities Intermediary or Pledge Collateral Agent, as
the case may be, shall conclusively presume that such Written Instructions have been sent
by an Authorized Person. Secured Party shall be responsible for ensuring that only its
Authorized Persons transmit such Written Instructions to Securities Intermediary and Pledge
Collateral Agent and that all of its Authorized Persons treat applicable user and
authorization codes, passwords and/or authentication keys with extreme care.



     (d) Secured Party acknowledges and agrees that it is fully informed of the protections
and risks associated with the various methods of transmitting Written Instructions to
Securities Intermediary and Pledge Collateral Agent and that there may be more secure
methods of transmitting Written Instructions than the method(s) selected by it. Secured
Party agrees that the security procedures (if any) to be followed in connection with its
transmission of Written Instructions provide to it a commercially reasonable degree of
protection in light of its particular needs and circumstances.



     SECTION 5.9 Certain Rights.



     (a) Whenever in the administration of the provisions of this Agreement Securities Intermediary
and Pledge Collateral Agent shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of Securities Intermediary and Pledge Collateral Agent, be
deemed to be conclusively proved and established by a certificate signed by one of the Secured
Party’s officers, and delivered to Securities Intermediary and Pledge Collateral Agent and such
certificate, in the absence of gross negligence or bad faith on the part of the Securities
Intermediary and Pledge Collateral Agent, shall be full warrant to the Securities Intermediary and
Pledge Collateral Agent for any action taken, suffered or omitted by it under the provisions of
this Agreement upon the faith thereof.



     (b) The Securities Intermediary and Pledge Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper
or document, may conclusively rely and shall be fully protected in acting or refraining from acting
thereon if believed to be genuine and to have been signed or presented by the proper party or
parties and may conclusively rely on the truth of the statements and the correctness of the
opinions expressed therein.



     (c) Neither Securities Intermediary nor Pledge Collateral Agent shall have any responsibility,
other than complying with the express terms and provisions of this Agreement, for perfecting or
maintaining the perfection of any security interest granted to it or to the Secured



25











 




Party hereunder
or for filing or re-filing any financing statement or continuation statement in any public office
at any time or times.




     (d) In the event funds or securities transfer instructions are given (other than in writing at
the time of execution of this Agreement), whether in writing, by telecopier or otherwise,
Securities Intermediary and Pledge Collateral Agent are authorized to seek confirmation of such
instructions by telephone call-back to the person or persons designated on Schedule I hereto, and
Securities Intermediary and Pledge Collateral Agent may rely upon the confirmations of anyone
purporting to be the person or persons so designated. The persons and telephone numbers for
call-backs may be changed only in writing actually received and acknowledged by Securities
Intermediary and Pledge Collateral Agent. The parties to this Agreement acknowledge that such
security procedure is commercially reasonable.



     SECTION 5.10 Indemnification Collateral Account Disclosure. Securities Intermediary and
Pledge Collateral Agent are authorized to supply any information regarding the Indemnification
Collateral Account or the Pledge Collateral Accounts which is required by any law or governmental
regulation now or hereafter in effect.



     SECTION 5.11 Force Majeure. Neither Securities Intermediary nor Pledge Collateral Agent
shall be responsible or liable for any failure or delay in the performance of its obligations under
this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications service; accidents; labor disputes;
acts of civil or military authority; governmental actions; inability to obtain labor, material,
equipment or transportation.



     SECTION 5.12 No Implied Duties. Neither Securities Intermediary nor Pledge Collateral Agent
shall have any duties or responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation shall be implied against
Securities Intermediary or Pledge Collateral Agent in connection with this Agreement. No provision
of this Agreement shall require the Securities Intermediary or Pledge Collateral Agent to expend or
risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.



ARTICLE VI

Miscellaneous




     SECTION 6.1 Resignation or Removal of Securities Intermediary and Pledge Collateral Agent.
Subject to the appointment and acceptance of a successor Pledge Collateral Agent or Securities
Intermediary as provided below:




     (i) Pledge Collateral Agent and Securities Intermediary may resign at any time by
giving notice thereof to Secured Party; provided, that Pledge Collateral Agent



26









 







may
resign only if it also resigns as Collateral Agent under and in accordance with the
Pledge Agreement; and




     (ii) Pledge Collateral Agent and Securities Intermediary may be removed at any time
by Secured Party; provided, that any such removal of the Pledge Collateral Agent is also
effected in connection with the removal of the Collateral Agent under and in accordance
with the Pledge Agreement.


Secured Party shall promptly notify Pledgor of any resignation or removal of Pledge Collateral
Agent or Securities Intermediary pursuant to this Section 6.1. Upon any such resignation or
removal, Secured Party shall have the right to appoint a successor Pledge Collateral Agent or
Securities Intermediary, as the case may be, provided, such appointment of the Pledge Collateral
Agent also complies with the Pledge Agreement. If no successor Pledge Collateral Agent or
Securities Intermediary shall have been so appointed and shall have accepted such appointment
within thirty (30) days after the retiring Pledge Collateral Agent’s or Securities Intermediary’s
giving of notice of resignation or Secured Party’s giving notice of such removal, then the retiring
or removed Pledge Collateral Agent or Securities Intermediary may petition any court of competent
jurisdiction, at the expense of Secured Party, for the appointment of a successor Pledge Collateral
Agent or Securities Intermediary. Pledge Collateral Agent and Securities Intermediary shall each
be a bank, trust company or national banking association with a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any appointment as Pledge Collateral Agent or Securities
Intermediary hereunder by a successor Pledge Collateral Agent or Securities Intermediary, as the
case may be, such successor Pledge Collateral Agent or Securities Intermediary, as the case may be,
shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Pledge Collateral Agent or Securities Intermediary, as the case may be, and the
retiring Pledge Collateral Agent or Securities Intermediary, as the case may be, shall take all
appropriate action, subject to payment of any amounts then due and payable to it hereunder, to
transfer any money and property held by it hereunder (including the Indemnification Collateral or
the Pledge Collateral) to such successor. The retiring Pledge Collateral Agent or Securities
Intermediary shall, upon such succession, be discharged from its duties and obligations as Pledge
Collateral Agent or Securities Intermediary hereunder. After any retiring Pledge Collateral
Agent’s or Securities Intermediary’s resignation hereunder as Pledge Collateral Agent or Securities
Intermediary, the provisions of Article V shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as the Pledge Collateral Agent
or Securities Intermediary. Any resignation or removal of Pledge Collateral Agent or Securities
Intermediary hereunder, at a time when such person is acting as Pledge Collateral Agent or
Securities Intermediary, shall be deemed for all
purposes of this Agreement as the simultaneous resignation or removal of Pledge Collateral Agent
and Securities Intermediary.




     SECTION 6.2 Termination. This Agreement shall terminate upon (a) the receipt by Security
Intermediary and Pledge Collateral Agent of Written Instructions from Secured Party expressly
stating that Secured Party no longer claims any security interest in either the Indemnification
Collateral or the Pledge Collateral, the subsequent transfer of the Indemnification Collateral from
the Indemnification Collateral Account pursuant to Section 4.2 and the corresponding transfers of
the Pledge Collateral under the Pledge Agreement, or (b) the



27









 




transfer of all of the Indemnification
Collateral and Pledge Collateral to Secured Party pursuant to an entitlement order delivered to
Securities Intermediary and an instruction delivered to Pledge Collateral Agent. Except as
otherwise provided herein, all obligations of the parties to each other hereunder shall cease upon
termination of this Agreement.




     SECTION 6.3 Certificates of Authorized Persons. Secured Party and Pledgor agree to furnish
to Securities Intermediary and Pledge Collateral Agent a new Certificate of Authorized Persons in
the event of any change in the then present Authorized Persons. Until such new Certificate is
received, Securities Intermediary and Pledge Collateral Agent shall be fully protected in acting
upon Written Instructions of such present Authorized Persons.



     SECTION 6.4 Notices.



     (a) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to Securities Intermediary, shall be sufficiently given if addressed
to Securities Intermediary and received by it at its offices at Deutsche Bank Trust Company
Americas, Trust and Securities Services, 60 Wall Street, 27th Floor, MS: NYC60-2710, New
York, NY 10005, Fax: 732-578-4635, Attention: Corporates Team / MetLife, Inc., with a copy
to Deutsche Bank National Trust Company Trust & Securities Services, 100 Plaza One, 6th
Floor, MS: JCY03-0699, Jersey City, NJ 07311-3901, Fax: 732-578-4635, Attention:
Corporates Team / MetLife, Inc., or at such other place as Securities Intermediary may from
time to time designate in writing.



     (b) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to Pledge Collateral Agent, shall be sufficiently given if addressed
to Pledge Collateral Agent and received by it at its offices at Deutsche Bank Trust Company
Americas, Trust and Securities Services, 60 Wall Street, 27th Floor, MS: NYC60-2710, New
York, NY 10005, Fax: 732-578-4635, Attention: Corporates Team / MetLife, Inc., with a copy
to Deutsche Bank National Trust Company Trust & Securities Services, 100 Plaza One, 6th
Floor, MS: JCY03-0699, Jersey City, NJ 07311-3901, Fax: 732-578-4635, Attention:
Corporates Team / MetLife, Inc., or at such other place as Pledge Collateral Agent may from
time to time designate in writing.



     (c) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to Secured Party shall be sufficiently given if addressed to Secured
Party and received by it at its offices at MetLife, Inc., 1095 Avenue of the
Americas, New York, NY 10036; Attention: General Counsel; Facsimile: (212) 578-4992,
or at such other place as Secured Party may from time to time designate in writing.



     (d) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to Pledgor shall be sufficiently given if addressed to Pledgor and
received by it at its offices at ALICO Holdings LLC, c/o American International Group,
Inc., 70 Pine Street, New York, NY 10270; Attention: General Counsel; Facsimile: (212)
425-2175, or at such other place as Pledgor may from time to time designate in writing.



     (e) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to Stock Purchase Contract Agent shall be sufficiently given if



28









 




addressed to Stock Purchase Contract Agent and received by it at its offices at Deutsche
Bank Trust Company Americas, Trust and Securities Services, 60 Wall Street, 27th Floor, MS:
NYC60-2710, New York, NY 10005, Fax: 732-578-4635, Attention: Corporates Team / MetLife,
Inc., with a copy to Deutsche Bank National Trust Company Trust & Securities Services, 100
Plaza One, 6th Floor, MS: JCY03-0699, Jersey City, NJ 07311-3901, Fax: 732-578-4635,
Attention: Corporates Team / MetLife, Inc., or at such other place as Stock Purchase
Contract Agent may from time to time designate in writing.



Any such notice or other instrument in writing may be delivered by first class mail, personal
delivery or telecopy.




     SECTION 6.5 Cumulative Rights; No Waiver. Each and every right granted to Secured Party,
Pledgor, Securities Intermediary or Pledge Collateral Agent hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity, shall be cumulative
and may be exercised from time to time. No failure on the part of Secured Party, Pledgor,
Securities Intermediary or Pledge Collateral Agent to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise by Secured Party,
Pledgor, Securities Intermediary or Pledge Collateral Agent of any right preclude any other future
exercise thereof or the exercise of any other right.



     SECTION 6.6 Severability; Amendments; Assignment. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected thereby.
This Agreement may not be waived, amended or modified in any manner except by a written agreement
executed by the parties hereto. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided, however, that, except
pursuant to Section 3.7 or Section 6.1, this Agreement shall not be assignable by
any party without the written consent of the other parties and any purported assignment in
violation of this provision shall be null and void.



     SECTION 6.7 Governing Law; Jurisdiction; Waiver of Immunity; Jury Trial Waiver. This
Agreement and the Indemnification Collateral Account shall be governed by and construed in
accordance with the local law of the State of New York. The State of New York shall be deemed to
be the jurisdiction of Securities Intermediary in its capacity as securities intermediary hereunder
and in its capacity as bank with respect to any deposit account comprising part of the
Indemnification Collateral Account governed by this Agreement. Secured Party, Pledgor, Pledge
Collateral Agent, Securities Intermediary and Stock Purchase Contract Agent hereby consent to the
jurisdiction of a state or federal court situated in New York City, New York in connection with any
dispute arising hereunder. To the extent that in any jurisdiction Secured Party, Pledgor,
Securities Intermediary, Pledge Collateral Agent or Stock Purchase Contract Agent may now or
hereafter be entitled to claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, they each irrevocably agree not to claim, and
hereby waives, such immunity. Secured Party, Pledgor, Securities Intermediary, Pledge Collateral
Agent and Stock Purchase Contract Agent each hereby irrevocably waive any and all rights to trial
by jury in any legal proceeding arising out of or relating to this Agreement.



29









 





     SECTION 6.8 No Third Party Beneficiaries. In performing hereunder, Securities Intermediary
and Pledge Collateral Agent are acting solely on behalf of Secured Party and Pledgor and no
contractual or service relationship shall be deemed to be established hereby between Securities
Intermediary or Pledge Collateral Agent and any other person.



     SECTION 6.9 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall, together, constitute only
one instrument.



     SECTION 6.10 USA PATRIOT ACT. Pledgor and Secured Party hereby acknowledge that Securities
Intermediary and Pledge Collateral Agent are subject to federal laws, including the Customer
Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing
regulations, pursuant to which Securities Intermediary and Pledge Collateral Agent must obtain,
verify and record information that allows Securities Intermediary or Pledge Collateral Agent, as
the case may be, to identify each of Pledgor and Secured Party. Accordingly, prior to opening the
Indemnification Collateral Account hereunder and the Collateral Accounts under the Pledge Agreement
Securities Intermediary and Pledge Collateral Agent will ask Pledgor and/or Secured Party to
provide certain information including, but not limited to, Pledgor’s and/or Secured Party’s name,
physical address, tax identification number and other information that will help Securities
Intermediary to identify and verify each of Pledgor’s and Secured Party’s identity such as
organizational documents, certificate of good standing, license to do business, or other pertinent
identifying information. Pledgor and Secured Party agree that Securities Intermediary and Pledge
Collateral Agent cannot open the Indemnification Collateral Account hereunder or the Collateral
Accounts under the Pledge Agreement unless and until Securities Intermediary and Pledge Collateral
Agent verify Pledgor’s and/or Secured Party’s identity in accordance with its CIP.



     SECTION 6.11 Agreement of Stock Purchase Contract Agent. Stock Purchase Contract Agent
agrees that, to the extent that Pledgor must take actions or give instructions pursuant to this
Agreement that must be taken or given by Stock Purchase Contract Agent under the Pledge Agreement,
Stock Purchase Contract Agent shall take those actions or give those instructions when, if and in
the manner requested by Pledgor. In taking any such actions or giving any such instructions, Stock
Purchase Contract Agent shall incur no liability to any other party to this Agreement for taking
such actions or giving such instructions in the manner instructed by Pledgor. In connection with
its execution and performance hereunder the Stock Purchase
Contract Agent is entitled to all rights, privileges, protections, immunities, benefits and
indemnities provided to it under the Stock Purchase Contract Agreement.



30









 





     In Witness Whereof, the parties hereto have caused this Agreement to be executed by
their respective officers, thereunto duly authorized, as of the day and year first above written.



	 	 	 	 	 
	 	MetLife, Inc.

as Secured Party

 	 
	 	By:  	/s/ Steven J. Goulart	 
	 	 	Name:  	Steven J. Goulart	 
	 	 	Title:  	Senior Vice President and Treasurer	 
	 
	 	ALICO Holdings LLC,

as Pledgor

 	 
	 	By:  	/s/ Alain Karaoglan	 
	 	 	Name:  	Alain Karaoglan	 
	 	 	Title:  	Manager	 
	 
	 	Deutsche Bank Trust Company

Americas,

as Securities Intermediary and Pledge

Collateral Agent

 	 
	 	By:  	/s/ Annie Jaghatspanyan	 
	 	 	Name:  	Annie Jaghatspanyan	 
	 	 	Title:  	Vice President	 
	 
	 	 	 
	 	By:  	/s/ Carol Ng	 
	 	 	Name:  	Carol Ng	 
	 	 	Title:  	Vice President	 
	 



Indemnification Collateral Account, Security

and Control Agreement







 









 








	 	 	 	 	 
	 	For the limited purpose set forth in

Section 6.11:

Deutsche Bank Trust Company

Americas,

as Stock Purchase Contract Agent

 	 
	 	By:  	/s/ Annie Jaghatspanyan	 
	 	 	Name:  	Annie Jaghatspanyan	 
	 	 	Title:  	Vice President	 
	 
	 	 	 
	 	By:  	/s/ Carol Ng	 
	 	 	Name:  	Carol Ng	 
	 	 	Title:  	Vice President	 
	 
	 	For the limited purposes set forth in

Section 5.1(c) and Section 5.7

American International Group, Inc.



 	 
	 	By:  	/s/ Alain Karaoglan	 
	 	 	Name  Alain Karaoglan	 
	 	 	Title  Attorney-in-Fact	 
	 



Indemnification Collateral Account, Security

and Control Agreement






 









 








SCHEDULE I




Contact Persons for Confirmation




	 	 	 
	Name

	 	Phone Number
	Don Anderson

	 	(973) 355-4783 (Office);
	 

	 	(973) 886-4040 (Cell)
	Morita Fullwood

	 	(212) 578-8851







SI-1