eTrade 2005 Annual Report Download - page 521

(4) immediately after giving effect to such transaction on a pro forma basis the Company or the Surviving Person, as the case may be,
could Incur at least $1.00 of Indebtedness under the first paragraph of Section4.03;
(5) it delivers to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clauses
(3)and (4))and Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent provided for herein relating to such transaction have been complied
with; and
(6) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with which the Company has entered into a transaction
under this Section5.01, shall have by amendment to its Note Guarantee confirmed that its Note Guarantee shall apply to the obligations
of the Company or the Surviving Person in accordance with the Notes and the Indenture;
provided
,
however
, that clauses (3)and (4)above do not apply if, in the good faith determination of the Board of Directors of the
Company, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the
state of organization or convert the form of organization of the Company to another form, and any such transaction shall not have as
one of its purposes the evasion of the foregoing limitations.
Section5.02.
Successor Substituted.
Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition of
all or substantially all of the property and assets of the Company in accordance with Section5.01 of this Indenture, the successor
Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein; provided that the Company shall
not be released from its obligation to pay the principal of, premium, if any, or interest on the Notes in the case of a lease of all or
substantially all of its property and assets.
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2006. EDGAR Online, Inc.