eTrade 2005 Annual Report Download - page 573

(b) The Company and the Remarketing Agent agree that it would not be just or equitable if contribution pursuant to this Section8 were
determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations
referred to in Section8(a). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section8, the Remarketing Agent shall not be required to contribute any amount in excess of
the amount by which the Remarketing Fee exceeds the amount of any damages that the Remarketing Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section11(f) of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in Section7 and Section8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(c) The indemnity and contribution provisions contained in Section7 and Section8 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i)any
termination of this Agreement, (ii)any investigation made by or on behalf of the Remarketing Agent, any person controlling the
Remarketing Agent or any affiliate of the Remarketing Agent or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii)acceptance of and payment for any of the Remarketed Notes.
Section9.
Resignation and Removal of the Remarketing Agent.
The Remarketing Agent may resign and be discharged from its duties and obligations hereunder, and the Company may remove the
Remarketing Agent, by giving 30 days’ prior written notice, in the case of a resignation, to the Company and the Purchase Contract
Agent and, in the case of a removal, to the removed Remarketing Agent and the Purchase Contract Agent; provided, however, that no
such resignation nor any such removal shall become effective until the Company shall have appointed at least one nationally
recognized broker-dealer as successor Remarketing Agent and such successor Remarketing Agent shall have entered into a
remarketing agreement with the Company, in which it shall have agreed to conduct the Remarketing in accordance with the Transaction
Documents in all material respects.
In any such case, the Company will use commercially reasonable efforts to appoint a successor Remarketing Agent and enter into such
a remarketing agreement with
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2006. EDGAR Online, Inc.