eTrade 2005 Annual Report Download - page 503

the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which
such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes
or the Note Guarantee, or (y)in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or a Note
Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new
Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee
at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, (b)such new
Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average
Life of the Indebtedness to be refinanced or refunded and (c)such new Indebtedness is Incurred by the Company or a Subsidiary
Guarantor or by the Restricted Subsidiary that is the obligor on the Indebtedness to be refinanced or refunded;
(4) Indebtedness of the Company, to the extent the net proceeds thereof are promptly (A)used to purchase Notes, 2013 Notes or 2011
Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B)deposited to defease the Notes, 2013 Notes or
2011 Notes as set forth in Article 8; and
(5) Guarantees of Indebtedness of the Company or of any Restricted Subsidiary by any Restricted Subsidiary provided the Guarantee
of such Indebtedness is permitted by and made in accordance with Section4.07.
(b) Notwithstanding any other provision of this Section4.03, the maximum amount of Indebtedness that may be Incurred pursuant to
this Section4.03 will not be deemed to be exceeded, with respect to any outstanding Indebtedness due solely to the result of
fluctuations in the exchange rates of currencies or due to fluctuations in the value of commodities or securities which underlie such
Indebtedness. For the purposes of determining compliance with any restriction on the Incurrence of Indebtedness (x), the U.S dollar
equivalent principal amount of any Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency
exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed, in the case of
revolving credit debt and (y)the principal amount of any Indebtedness which is calculated by reference to any underlying security or
commodity shall be calculated based on the relevant closing price of such commodity or security on the date such Indebtedness was
incurred.
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