eTrade 2005 Annual Report Download - page 571

furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Remarketing Agent to such person at
or prior to the written confirmation of the sale of the Remarketed Notes to such person, and if the applicable Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is
the result of noncompliance by the Company with Section5(a)(6) hereof.
(b) The Remarketing Agent agrees to indemnify and hold harmless the Company, its directors and its officers who sign the
Registration Statement and each person, if any, who controls the Company within the meaning of either Section15 of the Securities Act
or Section20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any
Preliminary Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference to information relating to the Remarketing Agent
furnished to the Company in writing by the Remarketing Agent expressly for use in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section7(a) or 7(b), such person (the “
indemnified party
”) shall promptly notify the person
against whom such indemnity may be sought (the “
indemnifying party
”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party unless (i)the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii)the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the
Remarketing Agent, in the case of parties indemnified pursuant to Section7(a), and by the Company, in the case of parties indemnified
pursuant to Section7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
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2006. EDGAR Online, Inc.