eTrade 2005 Annual Report Download - page 297

or with respect to the Collateral Account, any financial asset credited thereto or any security entitlement in respect thereof. Neither the
financial assets credited to the Collateral Account nor the security entitlements in respect thereof will be subject to deduction, set-off,
banker’s lien, or any other right in favor of any person other than the Company.
ARTICLE 13
RIGHTS AND REMEDIES OF THE COLLATERAL AGENT
Section13.01
Rights and Remedies of the Collateral Agent
. (a)In addition to the rights and remedies set forth herein or otherwise
available at law or in equity, after a collateral event of default (as specified in Section13.01(b) below) hereunder, the Collateral Agent
shall have all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not the UCC is in
effect in the jurisdiction where the rights and remedies are asserted) and the TRADES Regulations and such additional rights and
remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted. Without limiting the generality of the foregoing, such remedies may include, to the extent permitted by applicable law,
(1)retention of the Subordinated Notes underlying Pledged Applicable Ownership Interests in Subordinated Notes, the Pledged
Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio in full satisfaction of the Holders’
obligations under the Purchase Contracts and the Purchase Contract Agreement or (2)sale of the Subordinated Notes underlying
Pledged Applicable Ownership Interests in Subordinated Notes, the Pledged Treasury Securities or the Pledged Applicable Ownership
Interests in the Treasury Portfolio in one or more public or private sales.
(b) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, in the event the Collateral
Agent is unable to make payments to the Company on account of Proceeds of (i)the Subordinated Notes underlying Pledged
Applicable Ownership Interests in Subordinated Notes (other than any interest payments thereon), (ii)Pledged Applicable Ownership
Interests in the Treasury Portfolio, or (iii)the Pledged Treasury Securities as provided in this Agreement in satisfaction of the
Obligations of the Holder of the Units of which such applicable Pledged Applicable Ownership Interests in the Treasury Portfolio or
such Pledged Treasury Securities are a part under the related Purchase Contracts, the inability to make such payments shall constitute
a “
collateral event of default
” hereunder and the Collateral Agent shall have and may exercise, with reference to such Subordinated
Notes underlying Pledged Applicable Ownership Interests in Subordinated Notes, Pledged Treasury Securities or Pledged Applicable
Ownership Interests in the Treasury Portfolio, as applicable, any and all of the rights and remedies available to a secured party under
the UCC and the TRADES Regulations after default by a debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, the Collateral Agent is hereby
irrevocably authorized to receive, collect and apply to the satisfaction of the Obligations all payments with respect to (i)the
Subordinated Notes underlying Pledged Applicable Ownership Interests in Subordinated Notes (other than any interest payments
thereon), (ii)the Pledged Treasury Securities and (iii)the Pledged Applicable Ownership Interests in the Treasury Portfolio, subject, in
each case, to the provisions of this Agreement, and as otherwise provided herein.
(d) The Purchase Contract Agent and each Holder agrees that, from time to time, upon the written request of the Collateral Agent, the
Purchase Contract Agent, on behalf of such Holder, shall execute and deliver such further documents and do such other acts and
things as the Collateral Agent may reasonably request in order to maintain the Pledge, and the perfection and priority thereof, and to
confirm the rights of the Collateral Agent hereunder. The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Collateral Agent hereunder, except for liability for its own negligent acts, its
own negligent failure to act or its own willful misconduct.
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