eTrade 2005 Annual Report Download - page 520

the foregoing clause (b)with respect to any fiscal year if such compliance would be contrary to the recommendations of the American
Institute of Certified Public Accountants so long as the Company delivers to the Trustee within 90 days after the end of such fiscal
year an Officer’s Certificate stating that such compliance would be so contrary and any facts particular to the Company that may have
caused such compliance to be so contrary.
Section4.18.
Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or
any usury law or other law wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
ARTICLE V
C
ONSOLIDATION
, M
ERGER
O
R
S
ALE
O
F
A
SSETS
Section5.01.
Consolidation, Merger and Sale of Assets.
The Company will not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in
one transaction or a series of related transactions) to, any Person or permit any Person to merge with or into it unless:
(1) it shall be the continuing Person, or the Person (if other than it) formed by such consolidation or into which it is merged or that
acquired or leased such property and assets of (the “Surviving Person”) shall be an entity organized and validly existing under the
laws of the United States of America or any jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the Company’s obligations under the Indenture and the Notes; provided, that if such continuing Person
or Person shall not be a corporation, such entity shall organize or have a wholly-owned Subsidiary in the form of a corporation
organized and validly existing under the laws of the United States or any jurisdiction thereof, and shall cause such corporation to
expressly assume, as a party to the supplemental indenture referenced above, as a co-obligor, each of such continuing Person or
Person’s obligations under the Indenture and the Notes;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a pro forma basis, the Company or the Surviving Person, as the case may be,
shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such
transaction;
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2006. EDGAR Online, Inc.