eTrade 2005 Annual Report Download - page 535

defeasance and discharge had not occurred, which Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling
of the Internal Revenue Service to the same effect unless there has been a charge in applicable federal income tax law after the Closing
Date such that a ruling is no longer required or (y)a ruling directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel; and
(B) the defeasance trust is not required to register as an investment company under the Investment Company Act of 1940 and, after the
passage of 123 days following the deposit, the trust fund will not be subject to the effect of Section547 of the United States
Bankruptcy Code or Section15 of the New York Debtor and Creditor Law.
(4) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance have been complied with.
Prior to the end of the 123-day period, none of the Company’s obligations under the Indenture will be discharged. Thereafter, the
Trustee upon request will acknowledge in writing the discharge of the Company’s obligations under the Notes and the Indenture
except for the surviving obligations specified above.
Section8.03.
Covenant Defeasance
. The Company may, subject as provided herein, be released from their respective obligations to
comply with, and shall have no liability in respect of any term, condition or limitation, set forth in Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10, 4.11 and 4.13, clauses (3)and (4)of Section5.01, clause (c)of Section6.01 with respect to such clauses (3)and (4)of
Section5.01, clause (d)of Section6.01 with respect to the covenants contained in Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11
and 4.13, and clauses (e)and (f)of Section6.01 shall not constitute an Event of Default under Section6.01 (“Covenant Defeasance”) if:
(i) The Company has complied with clauses (1), (2), 3(B), and (4)of Section8.02; and
(ii) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would otherwise have been the case if such deposit and defeasance had not
occurred.
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