AND,
PROVIDED, FURTHER, THAT MERRILL LYNCH SHALL NEITHER CAUSE NOR PERMIT THE REPO
RIGHTS AND OBLIGATIONS TO BE ASSIGNED OR SYNDICATED TO ANY TRANSFEREE IF SUCH
ASSIGNMENT OR SYNDICATION WOULD RESULT IN AGILENT OR WORLD TRADE BECOMING
OBLIGATED BOTH (I) TO WITHHOLD AMOUNTS IN RESPECT OF U.S. WITHHOLDING TAX AND
(II) TO GROSS-UP OR OTHERWISE COMPENSATE COUNTERPARTY OR ANY THIRD-PARTY
TRANSFEREE OF COUNTERPARTY IN RESPECT OF SUCH U.S. WITHHOLDING TAX.
AGILENT AND
WORLD TRADE ACKNOWLEDGE AND AGREE THAT THE SALE, PLEDGE OR OTHER TRANSFER OF
SECURITIES OR CERTIFICATES ISSUED BY COUNTERPARTY (SUCH SECURITIES OR
CERTIFICATES, "TRUST SECURITIES") SHALL NOT CONSTITUTE AN ASSIGNMENT OR
SYNDICATION OF THE REPO RIGHTS AND OBLIGATIONS FOR PURPOSES OF THIS SECTION 3 OR
REQUIRE THE CONSENT OF AGILENT OR WORLD TRADE; PROVIDED THAT SUCH SALE, PLEDGE
OR OTHER TRANSFER OF THE TRUST SECURITIES DOES NOT CAUSE THE COUNTERPARTY TO NO
LONGER BE CONSIDERED A US PERSON FOR U.S. FEDERAL INCOME TAX PURPOSES.
UPON (X) THE FULFILLMENT OF THE REQUISITE CONDITIONS SET FORTH IN CLAUSES
(A) AND (B) OF SUBSECTION 2(F)(II) OF THE CUSTODY AGREEMENT AND (Y) THE
DESIGNATION IN WRITING BY AGILENT OR WORLD TRADE TO MERRILL LYNCH OF THE
INFORMATION REQUIRED TO BE PROVIDED BY MERRILL LYNCH IN THE INSTRUCTIONS
DESCRIBED IN CLAUSE (C) OF SUCH SUBSECTION 2(F)(II), MERRILL LYNCH SHALL, WITHIN
ONE BUSINESS DAY, DELIVER AN MLCS REPURCHASE NOTICE (AS DEFINED IN THE CUSTODY
AGREEMENT) AND A RELATED SHARE TRANSFER FORM, IN EACH CASE, IN CONFORMITY WITH
THE FOREGOING INSTRUCTIONS, TO THE BANK OF NEW YORK (OR ANY REPLACEMENT
CUSTODIAN UNDER THE CUSTODY AGREEMENT) PURSUANT TO SUBSECTION 2(F)(II) OF THE
CUSTODY AGREEMENT.
In addition, Merrill Lynch agrees not to cause, permit or consent to any
amendment to or modification of Section 2(e) or (f) of the Custody Agreement
without the written consent of Agilent or World Trade (such consent not to be
unreasonably withheld).
4.
EXPENSE REIMBURSEMENT.
EACH OF AGILENT, WORLD TRADE AND MERRILL
LYNCH AGREES THAT ANY AND ALL EXPENSES INCURRED BY MERRILL LYNCH PURSUANT TO
SECTION 4(C) OF THE CUSTODY AGREEMENT SHALL BE PROMPTLY REIMBURSED BY AGILENT
UPON PRESENTATION BY MERRILL LYNCH OF AN ITEMIZED ACCOUNTING THEREOF.
5.
INDEMNIFICATION; CONTRIBUTION.
AGILENT AND WORLD TRADE JOINTLY
AND SEVERALLY AGREE TO INDEMNIFY AND HOLD HARMLESS MERRILL LYNCH AND ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND CONTROLLING PERSONS
(MERRILL LYNCH AND EACH SUCH OTHER PERSON BEING AN "INDEMNIFIED PARTY") FROM AND
AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES AND LIABILITIES, JOINT OR SEVERAL,
TO WHICH SUCH INDEMNIFIED PARTY BECOMES SUBJECT UNDER ANY APPLICABLE LAW, OR
OTHERWISE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH (A) ANY TRANSACTION
CONTEMPLATED BY THIS AGREEMENT, AND (B) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT CONTAINED IN ANY INFORMATION (WHETHER ORAL OR
WRITTEN) OR DOCUMENTS FURNISHED OR MADE AVAILABLE BY WORLD TRADE OR AGILENT OR
ANY OF THEIR AFFILIATES IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED PURSUANT
TO THIS AGREEMENT OR THE OMISSION OR THE ALLEGED OMISSION TO STATE THEREIN A
MATERIAL FACT NECESSARY IN