eTrade 2005 Annual Report Download - page 265

Agent pursuant to the Remarketing Agreement to sell such Subordinated Notes. The Purchase Contract Agent, based on the notices
specified pursuant to Section5.02(a)(iv), shall notify the Remarketing Agent, promptly after 5:00 p.m. (New York City time) on the sixth
Business Day immediately preceding the Purchase Contract Settlement Date, of the aggregate principal amount of Subordinated Notes
attributable to the Pledged Applicable Ownership Interests in Subordinated Notes that are to be remarketed. Concurrently, the
Custodial Agent, based on the notices specified in clause (ii)below of this Section5.02(b), will present for Remarketing the Separate
Subordinated Notes to the Remarketing Agent.
(ii) Prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately preceding the Purchase Contract Settlement Date,
but no earlier than the Payment Date immediately preceding such date, holders of Separate Subordinated Notes may elect to have their
Separate Subordinated Notes remarketed in all Remarketings under the Remarketing Agreement by delivering their Separate
Subordinated Notes, along with a notice of such election, substantially in the form of Exhibit L attached hereto, to the Custodial Agent.
After such time, such election shall become an irrevocable election to have such Separate Subordinated Notes remarketed in all
Remarketings. The Custodial Agent shall hold the Separate Subordinated Notes in an account separate from the Collateral Account in
which the Subordinated Notes underlying the Pledged Applicable Ownership Interests in Subordinated Notes shall be held. Holders of
Separate Subordinated Notes electing to have their Separate Subordinated Notes remarketed will also have the right to withdraw that
election by written notice to the Custodial Agent, substantially in the form of Exhibit M hereto, on or prior to 5:00 p.m. (New York City
time) on the seventh Business Day immediately preceding the Purchase Contract Settlement Date, and following such notice the
Custodial Agent shall return such Separate Subordinated Notes to such holder.
(iii) Upon receipt of notice from the Purchase Contract Agent as set forth in Section5.02(b)(i) above and receipt of the Separate
Subordinated Notes (if any) from the Custodial Agent, the Remarketing Agent shall, on the Initial Remarketing Date, use reasonable
efforts to remarket such Subordinated Notes and such Separate Subordinated Notes at a price (the “
Remarketing Price
”) equal to
100% of the aggregate principal amount of such Subordinated Notes and such Separate Subordinated Notes being remarketed, as
provided in the Remarketing Agreement, for settlement on the Purchase Contract Settlement Date. If, in spite of using its reasonable
efforts, the Remarketing Agent cannot remarket such Subordinated Notes and such Separate Subordinated Notes at the Remarketing
Price (other than to the Company) for any reason, or the remarketing has not occurred because a condition precedent to the
remarketing has not been fulfilled (in each case, a “
Failed Remarketing
”) on the Initial Remarketing Date, the Remarketing Agent
shall, on the Second Remarketing Date, use its reasonable efforts to remarket such Subordinated Notes and such Separate
Subordinated Notes at the Remarketing Price for settlement on the Purchase Contract Settlement Date. If, in spite of the Remarketing
Agent’s reasonable efforts, a Failed Remarketing shall have occurred on the Second Remarketing Date, the Remarketing Agent shall,
on the Final Remarketing Date, use reasonable efforts to remarket such Subordinated Notes and such Separate Subordinated Notes at
the Remarketing Price for settlement on the Purchase Contract Settlement Date.
(iv) If the Remarketing Agent is able to remarket such Subordinated Notes and such Separate Subordinated Notes (if any) in any
Remarketing (to parties other than the Company) in accordance with the Remarketing Agreement (a “
Successful Remarketing
”), the
Collateral Agent shall:
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