eTrade 2005 Annual Report Download - page 509

(d) For purposes of determining compliance with this Section4.04, (x)the amount, if other than in cash, of any Restricted Payment shall
be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution
and (y)if a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described in the above clauses,
including the first paragraph of this Section4.04, the Company, in its sole discretion, may order and classify, and from time to time may
reclassify, such Restricted Payment if it would have been permitted at the time such Restricted Payment was made and at the time of
such reclassification.
Section4.05.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries or Regulated Subsidiaries
.
The Company will not, and will not permit any Restricted Subsidiary or Regulated Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary or
Regulated Subsidiary (other than any Subsidiary Guarantor) to
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary or
Regulated Subsidiary owned by the Company or any other Restricted Subsidiary or Regulated Subsidiary;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary or Regulated Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary or Regulated Subsidiary; or
(4) transfer any of its property or assets to the Company or any other Restricted Subsidiary or Regulated Subsidiary.
The foregoing provisions shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in any Credit Facility, the Indentures or any other agreements in effect on the Closing Date, and any
extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such
extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than
those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) existing under or by reason of applicable law including rules and regulations of and agreements with any regulatory authority
46

2006. EDGAR Online, Inc.