eTrade 2005 Annual Report Download - page 416

amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section11.11, Market
Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency published by the Federal
Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee
shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in
question, or such other quotations as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any
action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in
the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted
by law for all purposes and irrevocably binding upon the Issuer and all Holders.
Section11.12
. Judgment Currency.
The Issuer agrees, to the fullest extent that it may effectively do so under applicable law, that (a)if
for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on
the Securities of any series (the “
Required Currency
”) into a currency in which a judgment will be rendered (the “
Judgment
Currency
”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is entered, and (b)its obligations under this Indenture to make payments in the Required Currency (i)shall not
be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii)shall
be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii)shall
not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “
New York
Banking Day
” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or executive order to close.
62

2006. EDGAR Online, Inc.