eTrade 2009 Annual Report Download - page 199

SECOND SUPPLEMENTAL INDENTURE, dated as of January 18, 2008 (the “Second Supplemental Indenture”) to the
Indenture dated as of November 29, 2007 (the “Base Indenture,” and as supplemented by the First Supplemental Indenture, dated as
of December 27, 2007 (the “First Supplemental Indenture”), the “Indenture”), between E*TRADE FINANCIAL
CORPORATION (the “Company”), a Delaware corporation, and THE BANK OF NEW YORK, a New York banking corporation,
as trustee (the “Trustee”).
WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture, the First Supplemental
Indenture and up to $1,936,000,000 (plus any Capitalized Interest) aggregate principal amount of the Company’s 12.5% Springing
Lien Notes due 2017 (the “Notes”);
WHEREAS, the Company now wishes to issue $150,000,000 aggregate principal amount of the Company’s 12.5% Springing
Lien Notes due 2017 (the “Additional Notes”) as provided for under the Base Indenture;
WHEREAS, Section 2.02 of the Base Indenture provides that the Company may not issue and the Trustee may not authenticate
the Additional Notes unless the Final Closing has occurred;
WHEREAS, the Final Closing has not occurred;
WHEREAS, Section 9.02(a) of the Base Indenture provides that the Company and the Trustee may amend the indenture with
the consent of the Holders of a majority in aggregate principal amount of the outstanding Notes, provided certain conditions are met;
WHEREAS, the Holders of a majority in aggregate principal amount of the outstanding Notes have consented to the issuance of
the Additional Notes in advance of the Final Closing;
WHEREAS, the Company desires and has requested the Trustee to join it in the execution and delivery of this Second
Supplemental Indenture in order to remove the limitation preventing the issuance of the Additional Notes unless the Final Closing has
occurred;
WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this Second Supplemental Indenture have
been complied with; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement of the Company and the
Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture have been done;
NOW, THEREFORE:
The Company agrees with the Trustee, for the equal and ratable benefit of the holders of the Notes, that the Indenture is
supplemented and amended, to the extent expressed herein, as follows:
ARTICLE 1
S COPE O F S UPPLEMENTAL I NDENTURE ; G ENERAL
Section 1.01. Scope Of Supplemental Indenture; General. This Second Supplemental Indenture supplements the provisions of
the Indenture, to which provisions specific reference is hereby made.