eTrade 2005 Annual Report Download - page 572

indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and (ii)such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of
such proceeding.
Section8.
Contribution.
(a) To the extent the indemnification provided for in Section7(a) or Section7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to under such paragraph, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)if the indemnifying party is the Company, in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the indemnified party or
parties on the other hand from the Remarketing of the Remarketed Notes, (ii)if the Remarketing Agent is the indemnifying party, in
such proportion as is appropriate to reflect the relative fault of the Remarketing Agent on the one hand and the indemnified party or
parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities or
(iii)if the allocation provided by Section8(a)(i) or Section8(a)(ii) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits received by the Company on the one hand and the Remarketing Agent on the other
hand from the Remarketing of the Remarketed Notes but also the relative fault of the Company on the one hand and of the Remarketing
Agent on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the Company, on one hand, and the Remarketing
Agent, on the other hand, in connection with the Remarketing shall be deemed to be in the same respective proportions as the
aggregate principal amount of the Remarketed Notes less the Remarketing Fee on the one hand and the Remarketing Fee on the other
hand bear to the aggregate principal amount of the Remarketed Notes. The relative fault of the Company on the one hand and the
Remarketing Agent on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company
or by the Remarketing Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
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2006. EDGAR Online, Inc.