eTrade 2005 Annual Report Download - page 292

(a) either the Company shall be the continuing corporation, or the successor Person (if other than the Company) or Person that
acquires all or substantially all of its assets shall be a corporation organized and existing under the laws of the United States of
America or a state thereof or the District of Columbia and such corporation shall expressly assume the due and punctual performance
and observance of all the obligations of the Company under the Purchase Contracts, this Agreement (including the Pledge provided
for herein), the Indenture (including any supplement thereto) and the Remarketing Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Purchase Contract Agent and the Collateral Agent, executed and delivered to the
Purchase Contract Agent and the Collateral Agent by such corporation or limited liability company, as the case may be; and
(b) the Company or such successor corporation shall not, immediately after such merger or consolidation, or such sale, conveyance,
transfer or other disposition, be in default in the performance of the covenants and conditions under the Purchase Contracts, this
Agreement, the Indenture (including any supplement thereto) or the Remarketing Agreement. In the event of any such merger,
consolidation, sale, conveyance (other than by way of lease), transfer or other disposition, the predecessor company may be
dissolved, wound up and liquidated at any time thereafter.
Section9.02
Rights and Duties of Successor Corporation
. In case of any such merger, consolidation, sale, conveyance (other than by
way of lease), transfer, or other disposition and upon any such assumption by a successor Person in accordance with Section9.01,
such successor corporation shall succeed to and be substituted for the Company with the same effect as if it had been named herein as
the Company, and the Company shall be relieved of any for their obligations under this Agreement and under the Units. Such
successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of E*TRADE Financial
Corporation any or all of the Certificates evidencing Units issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Purchase Contract Agent; and, upon the order of such successor instead of the Company, and subject
to all the terms, conditions and limitations in this Agreement prescribed, the Purchase Contract Agent shall authenticate and execute
on behalf of the Holders and deliver any Certificates which previously shall have been signed and delivered by the officers of the
Company to the Purchase Contract Agent for authentication and execution, and any Certificate evidencing Units which such
successor corporation thereafter shall cause to be signed and delivered to the Purchase Contract Agent for that purpose. All the
Certificates issued shall in all respects have the same legal rank and benefit under this Agreement as the Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all of such Certificates had been issued at the date of the
execution hereof.
In case of any such merger, consolidation, sale, conveyance, transfer, or other disposition such change in phraseology and form (but
not in substance) may be made in the Certificates evidencing Units thereafter to be issued as may be appropriate.
Section9.03
Officers’ Certificate and Opinion of Counsel Given to Purchase Contract Agent
. The Purchase Contract Agent, subject
to Section7.01 and Section7.03, shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such
merger, consolidation, sale, conveyance, transfer, or other disposition, and any such assumption, complies with the provisions of this
Article and that all conditions precedent to the consummation of any such merger, consolidation, sale, conveyance, transfer or other
disposition have been met.
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