LPL Financial Holdings Inc.
LPL HOLDINGS INC (Form: S-3ASR, Received: 02/10/2017 06:12:16)

As filed with the Securities and Exchange Commission on February 9, 2017
Registration No. 333 -



SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
 
 
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
 
 
 
LPL Financial Holdings Inc.
(Exact name of registrant as specified in its charter)
 
 
 
 
 
 
 
                                            Delaware  
 
20-3717839  
(State or other jurisdiction of
incorporation or organization)
 
 
(I.R.S. Employer
Identification Number)
 

LPL Holdings, Inc.
(Exact name of registrant as specified in its charter)

 
 
 
 
Massachusetts
 
04-3046611
(State or other jurisdiction of
incorporation or organization)
 
 
(I.R.S. Employer
Identification Number)
 


75 State Street
Boston, MA 02109
(800) 877-7210
(Address, including zip code, and telephone number, including area code of principal executive offices)
 
 
 
 
David P. Bergers
LPL Financial Holdings Inc.
75 State Street, Boston, MA 02109
(800) 877-7210
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 
 
 
 
Please send copies of all communications to:
 
Julie H. Jones
Marko S. Zatylny
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199
Telephone (617) 951-7000
Fax (617) 951-7050
 
 
 
 



Approximate date of commencement of proposed sale to the public: From time to time after the effectiveness of the Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
 
 
 
 
Large accelerated filer þ  
Accelerated filer o  
Non-accelerated filer o  
Smaller reporting company o  
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
 
 
 
 
 
 
 
 
 
 
 
 
Amount to be Registered/
 
 
Amount of
 
Title of Each Class of
 
 
Proposed Maximum Offering Price per Unit/
 
 
Registration
 
Securities to be Registered  
 
 
Proposed Maximum Aggregate Offering Price  
 
 
Fee
 
Common Stock, $.001 par value per share
 
 
(1)
 
 
(2)
 
Debt Securities of LPL Holdings, Inc.
 
 
(1)
 
 
(2)
 
Guarantees Issued by LPL Financial Holdings Inc. of LPL Holdings, Inc. Debt Securities
 
 
(3)
 
 
(3)
 
 
 
 
 
 
 
 
 
 
 
 
 
(1)
An indeterminate aggregate amount and initial offering price of the securities of each identified class is being registered hereunder, as may from time to time be offered, at indeterminate prices.
 
(2)
In accordance with Rules 456(b) and 457(r) of the Securities Act of 1933, as amended, the registrant is deferring payment of all of the registration fee.
 
(3)
No separate consideration will be received for the guarantees. Pursuant to Rule 457(n) under the Securities Act, no registration fee is required with respect to the guarantees.
 
 
 




 
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Common Stock
Debt Securities
Guarantees
 
 
 
 
LPL Financial Holdings Inc. and/or one or more selling stockholders may offer and sell shares of our common stock from time to time in amounts, at prices and on terms that will be determined at the time of any such offering.
LPL Holdings, Inc. may, from time to time, offer to sell debt securities consisting of senior or subordinated notes and debentures and/or other evidences of indebtedness in one or more series, which may be convertible or non-convertible, and which may be guaranteed by LPL Financial Holdings Inc.
This prospectus describes the general manner in which these securities may be offered using this prospectus. Each time we or the selling stockholders sell these securities, the specific terms will be determined at the time of the offering and will be included in a supplement to this prospectus. Information about the selling stockholders, including the relationship between the selling stockholders and us, will also be included in the applicable prospectus supplement. We and the selling stockholders may sell these securities directly to our stockholders or to purchasers or through agents on our behalf or through underwriters or dealers as designated from time to time. If any agents or underwriters are involved in the sale of these securities, the applicable prospectus supplement will provide the names of the agents or underwriters and any applicable fees, commissions or discounts.
This prospectus may not be used to consummate a sale of securities unless accompanied by the applicable prospectus supplement. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information” before you make your investment decision.
LPL Financial Holdings Inc. common stock is listed on The NASDAQ Global Select Market under the symbol “LPLA.” On February 9, 2017, the last sale price of our common stock as reported on The NASDAQ Global Select Market was $40.22 per share.
 
Investing in our securities involves risks. See “Risk Factors” on page 1.
 
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
 
 
 
 
 
Prospectus dated February 9, 2017.

 



TABLE OF CONTENTS
 
 
 
 
Page  
 
About this Prospectus
 
1
 
Risk Factors
 
1
 
Forward-Looking Statements
 
1
 
Use of Proceeds
 
2
 
Ratio of Earnings to Fixed Charges
 
2
 
Description of Debt Securities and Guarantees
 
2
 
Description of Common Stock
 
3
 
Plan of Distribution
 
5
 
Where You Can Find More Information
 
6
 
Incorporation of Certain Documents by Reference
 
7
 
Legal Matters
 
7
 
Experts
 
7
 
 
 
 
 
 
We have not authorized anyone to provide any information or to make any representations other than those contained in or incorporated by reference into this prospectus, any accompanying prospectus supplement or in any free writing prospectuses we have prepared. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus and any accompanying prospectus supplement are an offer to sell only the shares offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus and any accompanying prospectus supplement is current only as of the date of the applicable document.




ABOUT THIS PROSPECTUS
 
When we use the terms “we”, “us”, “our”, and the “Company” we mean LPL Financial Holdings Inc., a Delaware corporation, and its consolidated subsidiaries, taken as a whole, unless the context otherwise indicates. When we use the term “LPL Holdings, Inc.” we mean LPL Holdings, Inc., a Massachusetts corporation, unless the context indicates otherwise.
 
This prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission (“SEC”), as a “well-known seasoned issuer” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. Under this shelf registration process, we and the selling stockholders may from time to time sell different types of securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we or the selling stockholders sell securities under this shelf registration, we will provide a prospectus supplement that will contain specific information about the terms of that offering, including information about the selling stockholders, if any. The prospectus supplement may also add, update or change information contained in this prospectus. If the information in this prospectus is inconsistent with a prospectus supplement, you should rely on the prospectus supplement. You should read both this prospectus and any prospectus supplement, including all documents incorporated herein or therein by reference, together with additional information described under “Where You Can Find More Information.”
 
RISK FACTORS
 
Investing in our securities involves a high degree of risk. See “Item 1A — Risk Factors” in our most recent Annual Report on Form 10-K incorporated by reference in this prospectus and in any subsequent Quarterly Report on Form 10-Q or subsequent filings with the SEC and the “Risk Factors” section in the applicable prospectus supplement for a discussion of the factors you should carefully consider before deciding to purchase our securities.
 
FORWARD-LOOKING STATEMENTS
 

Statements in this prospectus, the accompanying prospectus supplement and the documents incorporated by reference herein and therein regarding the Company’s future financial and operating results, outlook, growth, plans, business strategies, liquidity, future indebtedness, future share repurchases, and future dividends, including statements regarding future resolution of regulatory matters, legal proceedings and related costs, future revenues and expenses, and projected savings and anticipated improvements to the Company’s operating model, services, and technology as a result of its initiatives and programs, as well as any other statements that are not related to present facts or current conditions or that are not purely historical, constitute forward-looking statements. These forward-looking statements are based on the Company’s historical performance and its plans, estimates, and expectations. The words “anticipates,” “believes,” “expects,” “may,” “plans,” “predicts,” “will,” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Forward-looking statements are not guarantees that the future results, plans, intentions, or expectations expressed or implied by the Company will be achieved. Matters subject to forward-looking statements involve known and unknown risks and uncertainties, including economic, legislative, regulatory, competitive, and other factors, which may cause actual financial or operating results, levels of activity, or the timing of events, to be materially different than those expressed or implied by forward-looking statements. Important factors that could cause or contribute to such differences include: changes in general economic and financial market conditions, including retail investor sentiment; fluctuations in the value of brokerage and advisory assets; fluctuations in levels of net new assets and the related impact on revenue; fluctuations in the number of retail investors served by the Company; effects of competition in the financial services industry and the success of the Company in attracting and retaining financial advisors and institutions; changes in the number of the Company’s financial advisors and institutions, and their ability to market effectively financial products and services; changes in interest rates and fees payable by banks participating in the Company’s cash sweep program, including the Company’s success in negotiating agreements with current or additional counterparties; the Company’s strategy in managing cash sweep program fees; changes in the growth and profitability of the Company’s fee-based business; the effect of current, pending, and future legislation, regulation, and regulatory actions, including the U.S. Department of Labor final rule regarding the fiduciary status of advisors (the “DOL Rule”) and disciplinary actions imposed by federal and state securities regulators and self-regulatory organizations; the costs of settling and remediating issues related to pending or future regulatory matters or legal proceedings; changes made to the Company’s offerings and services in response to current, pending, and future legislation, regulation, and regulatory actions, including the DOL Rule, and the effect that such changes may have on the Company’s gross profit streams and

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costs; execution of the Company’s capital management plans, including its compliance with the terms of its existing credit agreement; the price, availability of shares and trading volumes of the Company’s common stock, which will affect the timing and size of future share repurchases by the Company; execution of the Company’s plans and its success in realizing the expense savings and service improvements and efficiencies expected to result from its initiatives and programs, particularly its expense plans and technological initiatives; the Company’s success in negotiating and developing commercial arrangements with third-party service providers; the performance of third-party service providers on which the Company relies; the Company’s ability to control operating risks, information technology systems risks, cybersecurity risks, and sourcing risks; and the other factors set forth in Part I, “Item 1A. Risk Factors” in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, as may be amended or updated in the Company’s Quarterly Reports on Form 10-Q and other filings with the SEC. Except as required by law, the Company specifically disclaims any obligation to update any forward-looking statements as a result of developments occurring after the date such statements were made, even if its estimates change, and you should not rely on statements contained herein as representing the Company’s views as of any date subsequent to the date such statements were made.


 
USE OF PROCEEDS
 
Except as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds we receive from our sale of the securities covered by this prospectus for general corporate purposes, which may include working capital, capital expenditures, possible acquisitions and repayment of debt. Additional information on the use of net proceeds we receive from the sale of securities covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering.
 
We will not receive any proceeds in the event the securities are sold by a selling stockholder.


RATIO OF EARNINGS TO FIXED CHARGES
Our consolidated ratio of earnings to fixed charges for each of the periods indicated are as follows:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nine Months Ended
 
Fiscal Years Ended
 
 
September 30, 2016
 
December 31, 2015
 
December 31, 2014
 
December 31, 2013
 
December 31, 2012
 
December 31, 2011
 
Ratio of Earnings to Fixed Charges
 
 
4.01
 
 
5.30
 
 
5.71
 
 
6.01
 
 
5.11
 
 
4.81
 

For purposes of the ratio of earnings to fixed charges, “earnings” consist of earnings before income taxes, interest, and the portions of rent expense representative of the interest factor. “Fixed charges” consist of interest expense (which includes amortization of debt expenses), capitalized interest, and the portions of rent expense representative of the interest factor.

DESCRIPTION OF THE DEBT SECURITIES AND GUARANTEES
  
 LPL Holdings, Inc. may offer debt securities, which may be senior debt securities or subordinated debt securities and may be convertible or non-convertible. The debt securities may be guaranteed by LPL Financial Holdings Inc., its direct parent. The debt securities issued by LPL Holdings, Inc. will be issued under one or more indentures, each to be entered into by LPL Holdings, Inc., one or more guarantors, a trustee, registrar, paying agent and transfer agent and/or a collateral agent, as applicable. The trustee, registrar, paying agent, transfer agent, collateral agent, calculation agent and/or foreign currency agent (collectively, the “agents”), as applicable, shall be named in the applicable prospectus supplement. The terms of the debt securities will include those described in the applicable prospectus supplement and those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act. We have included a copy of the form of indenture as an exhibit to this Registration Statement. The indenture will be subject to and governed by the terms of the Trust Indenture Act.

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DESCRIPTION OF COMMON STOCK
 
References to the “Company,” “us,” “we” or “our” in this section mean LPL Financial Holdings Inc. and do not include the subsidiaries of LPL Financial Holdings Inc.
 
The following summary of the terms of our common stock does not purport to be complete. You should refer to our certificate of incorporation, as amended (the “Certificate”), and bylaws, both of which are on file with the SEC as exhibits to previous filings. The summary below is also qualified by provisions of applicable law.
 
General
 
Under our Certificate, we have authority to issue up to 600,000,000 shares of common stock, par value $0.001 per share. As of February 6, 2017 we had 89,352,628 shares of common stock outstanding, held by 830 record holders.
 
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Our bylaws provide that a nominee for director will be elected if the number of votes properly cast “for” such nominee’s election exceeds the number of votes properly cast “against” such nominee’s election; however, if the number of persons properly nominated for election to our board of directors (the “Board of Directors”) exceeds the number of directors to be elected, the directors will be elected by the plurality of the votes properly cast. Holders of common stock are entitled to receive proportionately any dividends as may be declared by our Board of Directors, subject to any preferential dividend rights of any series of preferred stock that is outstanding at the time of the dividend.
 
In the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately our net assets available for distribution to stockholders after payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock.
 
All shares of common stock will, when issued, be duly authorized, fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of shares of any series of preferred stock that the Company may designate and issue in the future.
 
Anti-takeover Effects of the Delaware General Corporation Law and Our Certificate of Incorporation and Bylaws
 
Our Certificate and our bylaws contain certain provisions that may discourage, delay, or prevent a change in our management or control over us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with the Board of Directors, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they may also discourage acquisitions that some stockholders may favor.

Action by Written Consent
 
The Delaware General Corporation Law (“DGCL”) provides that, unless otherwise stated in a corporation’s certificate of incorporation, the stockholders may act by written consent without a meeting. Our Certificate provides that any action required or permitted to be taken by our stockholders may only be taken at a duly called annual or special meeting of stockholders, and not by written consent without a meeting.
 
Special Meeting of Stockholders and Advance Notice Requirements for Stockholder Proposals
 
Our Certificate and bylaws provide that, subject to any special rights of the holders of any series of preferred stock and to the requirements of applicable law, special meetings of our stockholders can only be called by (a) our chairman or vice chairman of the Board of Directors, (b) our president, or (c) a majority of the Board of Directors through a special resolution.
In addition, our bylaws set forth advance notice procedures for stockholder proposals to be brought before an annual meeting of the stockholders, including the nomination of directors. Stockholders at an annual meeting may only consider the proposals specified in the notice of meeting or brought before the meeting by or at the direction of the Board of Directors, or by a stockholder of record, who is entitled to vote at the meeting and who has delivered a timely written notice in proper form to our secretary, of the stockholder’s intention to bring such business before the meeting.

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These provisions could have the effect of delaying until the next stockholder meeting any stockholder actions that are favored by the holders of a majority of our outstanding voting securities.  
Requirements for Removal and Interim Election of Directors
 
Subject to the special rights of the holders of any series of preferred stock to elect directors, holders of at least two-thirds of the shares entitled to vote at an election of the directors must approve the removal of directors. Vacancies and newly-created directorships will be filled only by a vote of a majority of the directors then in office, even though less than a quorum, and not by the stockholders. In addition, the Certificate provides that any vacancy created by the removal of a director by the stockholders shall only be filled by, in addition to any other vote otherwise required by law, the affirmative vote of a majority of the outstanding shares of common stock. Our bylaws allow the presiding officer at a meeting of the stockholders to adopt rules and regulations for the conduct of meetings which may have the effect of precluding the conduct of certain business at a meeting if the rules and regulations are not followed.
 
These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company.
 
Amendment to Certificate of Incorporation and Bylaws
 
The DGCL provides generally that the affirmative vote of a majority of the outstanding stock entitled to vote on amendments to a corporation’s certificate of incorporation or bylaws is required to approve such amendment, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority vote of our Board of Directors or, in addition to any other vote otherwise required by law, the affirmative vote of at least two-thirds of the voting power of our outstanding shares of common stock. Additionally, the affirmative vote of at least two-thirds of the voting power of the outstanding shares of common stock is required to alter, amend or repeal, or to adopt any provision inconsistent with, the “Board of Directors,” “No Action by Written Consent,” “Special Meetings of Stockholders,” “Amendments to the Amended and Restated Certificate of Incorporation and Bylaws” and “Business Combinations” provisions described in our Certificate. These provisions may have the effect of deferring, delaying or discouraging the removal of any anti-takeover defenses provided for in our Certificate and our bylaws.
 
Exclusive Jurisdiction of Certain Actions
 
Our Certificate requires, to the fullest extent permitted by law, that derivative actions brought in the name of the company, actions against directors, officers and employees for breach of fiduciary duty and other similar actions may be brought only in the Court of Chancery of the State of Delaware. Although we believe this provision benefits the company by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers.
 
Authorized but Unissued Shares
 
The authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing standards of The NASDAQ Global Select Market. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued common stock and preferred stock could make more difficult, or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger, or otherwise.
 
Business Combinations
 
We have elected to not be subject to Section 203 of the DGCL, which regulates business combinations with “interested stockholders.”
 
Transfer Agent and Registrar
 
The transfer agent and registrar for our common stock is Computershare Inc.
 
Listing
 
Our common stock is listed on The NASDAQ Global Select Market under the symbol “LPLA.”


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PLAN OF DISTRIBUTION
 
We and the selling stockholders may sell securities in any of the ways described below or in any combination:
 
 
to or through underwriters or dealers;
 
 
through one or more agents; or
 
 
directly to purchasers or to a single purchaser.
 
The distribution of the securities by us or the selling stockholders may be effected from time to time in one or more transactions:
 
 
at a fixed price, or prices, which may be changed from time to time;
 
 
at market prices prevailing at the time of sale;
 
 
at prices related to such prevailing market prices; or
 
 
at negotiated prices.
 
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
 
The prospectus supplement will describe the terms of the offering of the securities, including the following:
 
 
the name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them;
 
 
the public offering price of the securities and the proceeds to us and any discounts, commissions or concessions allowed or reallowed or paid to dealers; and
 
 
if the securities are sold by the selling stockholders, information about the selling stockholders, including the relationship between the selling stockholders and us.
 
Any offering price and any discounts or concessions allowed or reallowed or paid to dealers will be specified in the applicable prospectus supplement and may be changed from time to time.
 
Only the agents or underwriters named in each prospectus supplement are agents or underwriters in connection with the securities being offered thereby.
 
We and the selling stockholders may authorize underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us or the selling stockholders pursuant to delayed delivery contracts providing for payment and delivery on the date stated in each applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will be subject only to those conditions set forth in each applicable prospectus supplement, and each prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
 
Agents, underwriters and other third parties described above may be entitled to indemnification by us and the selling stockholders against certain civil liabilities, including liabilities under the Securities Act, or to contribution from us and the selling stockholders with respect to payments which the agents, underwriters or third parties may be required to make in respect thereof. Agents, underwriters and such other third parties may be customers of, engage in transactions with, or perform services for us or the selling stockholders in the ordinary course of business. We and the selling stockholders may

5


also use underwriters or such other third parties with whom we or such selling stockholders have a material relationship. We and the selling stockholders will describe the nature of any such relationship in the applicable prospectus supplement.
Certain underwriters may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions in the securities. These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority.
Our common stock is listed on The NASDAQ Global Select Market. Underwriters may make a market in our common stock, but will not be obligated to do so and may discontinue any market making at any time without notice. We can make no assurance as to the development, maintenance or liquidity of any trading market for the securities.
Certain persons participating in an offering may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with rules and regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
 
WHERE YOU CAN FIND MORE INFORMATION
 
We have filed a registration statement on Form S-3 with the SEC for the securities offered by this prospectus. This prospectus does not include all of the information contained in the registration statement. You should refer to the registration statement and its exhibits for additional information.
 
We are required to file annual and quarterly reports, special reports, proxy statements, and other information with the SEC. We make these documents publicly available, free of charge, on our website at www.lpl.com as soon as reasonably practicable after filing such documents with the SEC. The information contained on our website is not a part of this prospectus. You can read our SEC filings, including the registration statement, on the SEC’s website at http://www.sec.gov. You also may read and copy any document we file with the SEC at its public reference facility at:
 
Public Reference Room
100 F Street N.E.
Washington, DC 20549
 
Please call the SEC at 1-800-732-0330 for further information on the operation of the public reference facilities.

 

6


INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
 
The SEC allows us to “incorporate by reference” into this prospectus information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information in this prospectus. We incorporate by reference into this prospectus the documents listed below and any future filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, except for information “furnished” under Items 2.02, 7.01 or 9.01 on Form 8-K or other information “furnished” to the SEC which is not deemed filed and not incorporated in this prospectus, until the termination of the offering of securities described in the applicable prospectus supplement. We hereby incorporate by reference the following documents:
 
Our Annual Report on Form 10-K for the year ended December 31, 2015, as filed with the SEC on February 25, 2016 (File No. 001-34963);
 
 
Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, respectively (File No. 001-34963);
 
 
Our Current Reports on Form 8-K, as filed with the SEC on May 16, 2016, July 13, 2016, December 5, 2016 (except the portion thereof furnished pursuant to Item 7.01) and December 23, 2016 (File No. 001-34963);
 
 
Our Definitive Proxy Statement on Schedule 14A, as filed with the SEC on March 29, 2016 (File No. 001-34963); and
 
 
Description of our Common Stock, which is contained in the Registration Statement on Form 8-A, as filed with the SEC on November 12, 2010 (File No. 001-34963), as supplemented by the Description of Common Stock found on page 3 of this prospectus and including any amendments or reports filed for the purpose of updating such description.
 
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
 
Secretary
LPL Financial Holdings Inc.
75 State Street
Boston, Massachusetts 02109
(617) 423-3644
 
Copies of these filings are also available, without charge, on the SEC’s website at www.sec.gov and on our website at www.lpl.com as soon as reasonably practicable after they are filed electronically with the SEC. The information contained on our website is not a part of this prospectus.
 
LEGAL MATTERS
 
The validity of the issuance of the securities offered pursuant to this prospectus will be passed upon for us by Ropes & Gray LLP, Boston, Massachusetts.

EXPERTS
 
The consolidated financial statements incorporated in this prospectus by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2015, and the effectiveness of LPL Financial Holdings Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.




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PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
 
 
Item 14.    
Other expenses of Issuance and Distribution.  
 
The following table sets forth the various expenses payable by us, other than underwriting discounts and commissions, in connection with the sale and distribution of the securities being registered.
 
 
 
 
 
 
Securities and Exchange Commission registration fee
 
$
*
 
Printing and engraving expenses
 
 
**
 
Legal fees and expenses
 
 
**
 
Accounting fees and expenses
 
 
**
 
Rating Agency fees and expenses
 
 
**
 
Trustee’s fees and expenses
 
 
**
 
Transfer Agent and Registrar fees
 
 
**
 
Miscellaneous
 
 
**
 
 
 
 
 
 
Total
 
$
 
 
 
 
 
 
 
*
 
Omitted because the registration fee is being deferred pursuant to Rule 456(b) and 457(r).
 
 
 
**
 
An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement.
 
 
 
Item 15.    
Indemnification of Directors and Officers.  
 
Delaware Registrant

Section 102(b)(7) of the DGCL enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director’s fiduciary duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for liability of directors for unlawful payment of dividends or unlawful stock purchase or redemptions pursuant to Section 174 of the DGCL or (iv) for any transaction from which a director derived an improper personal benefit. Our Certificate includes a provision that eliminates the personal liability of directors for monetary damages for breach of fiduciary duty as a director to the fullest extent authorized by the DGCL.
 
Section 145(a) of the DGCL provides in relevant part that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably

8


believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was lawful.
 
Section 145(b) of the DGCL provides in relevant part that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another entity, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
 
Our bylaws generally provide that we will indemnify our directors and officers to the fullest extent permitted by law. Section 145(f) of the DGCL and our bylaws also provide that the indemnification and advancement of expenses provided by, or granted pursuant to Section 145 of the DGCL or the bylaws are not exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or otherwise. Our bylaws further provide that a right to indemnification or to advancement of expenses arising under a provision of the bylaws shall not be eliminated or impaired by an amendment to such provision after the occurrence of the act or omission which is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought.
 
 
We also maintain officers’ and directors’ liability insurance which insures against liabilities that officers and directors of the registrant may, in such capacities, incur. Section 145(g) of the DGCL provides that a corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under that section.

Massachusetts Registrant

Section 8.51 of Chapter 156D of the Massachusetts General Laws provides that a corporation may indemnify a director against liability if (1) (i) he conducted himself in good faith; and (ii) he reasonably believed that his conduct was in the best interest of the corporation or that his conduct was at least not opposed to the best interests of the corporation; and (iii) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; or (2) he engaged in conduct for which he shall not be liable under a provision of the corporation’s articles of organization authorized by Section 2.02(b)(4) of Chapter 156D of the Massachusetts General Laws. Section 8.52 of Chapter 156D of the Massachusetts General Laws provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.

Section 8.56 of Chapter 156D of the Massachusetts General Laws provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer of the corporation (1) to the same extent as a director; and (2) if he is an officer but not a director, to such further extent as may be provided by the articles of organization, the bylaws, a resolution of the board of directors, or contract except for liability arising out of acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. Section 8.56 also provides that an officer of a corporation who is not a director is entitled to mandatory indemnification under Section 8.52, and that the officer may apply to a court for indemnification or an advance for expenses, in each case to the same extent to which a director may be entitled to indemnification or advance under those provisions. Section 8.57 of the Massachusetts General Laws also affords a Massachusetts corporation the power to obtain insurance on behalf of its directors and officers against liabilities incurred by them in these capacities.

LPL Holdings, Inc.’s bylaws, as amended and restated, provide that LPL Holdings, Inc. shall indemnify its directors and the officers that have been appointed by the board of directors to the fullest extent permitted by law.


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The bylaws do not limit the power of the board of directors to authorize the purchase and maintenance of insurance on behalf of any director or officer against any expense whether or not LPL Holdings, Inc. would have the power to indemnify such director or officer against such expense under the bylaws. LPL Financial Holdings Inc. maintains directors' and officers' liability insurance that covers its subsidiaries, including LPL Holdings, Inc.
 
Also see “Item 17. Undertakings.”
 
 
Item 16.    
Exhibits.  
 
See Exhibit Index beginning on page II-6 of this registration statement.
 
 
Item 17.    
Undertakings.  
 
(a) The undersigned registrant hereby undertakes:
 
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

Provided , however , that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
 
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(i) each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
 
(ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be

10


deemed to be the initial bona fide offering thereof. Provided , however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
 
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed by the final adjudication of such issue.

(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.


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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on the 9th day of February, 2017.
LPL Financial Holdings Inc.
LPL Holdings, Inc.
 
 
 
By:
/s/ Dan H. Arnold
 
Dan H. Arnold
 
Chief Executive Officer and President
 
POWER OF ATTORNEY
 
Each person whose signature appears below constitutes and appoints Matthew J. Audette, David P. Bergers, and Gregory M. Woods, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-3 and any related Rule 462(b) registration statement or amendment thereto, to be filed by LPL Financial Holdings Inc., and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.
 
* * * *
 

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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
 
Signature
 
Title
Date
 
 
 
 
/s/ Dan H. Arnold
 
 
 
Dan H. Arnold
 
Chief Executive Officer, President, and Director of LPL Financial Holdings Inc. and LPL Holdings, Inc.
( Principal Executive Officer )
February 9, 2017
 
 
 
 
/s/ Matthew J. Audette
 
 
 
Matthew J. Audette
 
Chief Financial Officer of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
( Principal Financial Officer and Principal Accounting Officer )
February 9, 2017
 
 
 
 
/s/ John J. Brennan
 
 
 
John J. Brennan
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 6, 2017
 
 
 
 
/s/ Mark S. Casady
 
 
 
Mark S. Casady
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 7, 2017
 
 
 
 
/s/ Viet D. Dinh
 
 
 
Viet D. Dinh
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 9, 2017
 
 
 
 
/s/ Paulett Eberhart
 
 
 
Paulett Eberhart
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 3, 2017
 
 
 
 
/s/ Marco W. Hellman
 
 
 
Marco W. Hellman
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 9, 2017
 
 
 
 
/s/ Anne M. Mulcahy
 
 
 
Anne M. Mulcahy
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 6, 2017
 
 
 
 
/s/ James S. Putnam
 
 
 
James S. Putnam
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 4, 2017
 
 
 
 
/s/ James S. Riepe
 
 
 
James S. Riepe
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 4, 2017
 
 
 
 
/s/ Richard P. Schifter
 
 
 
Richard P. Schifter
 
Director of LPL Financial Holdings Inc. and
LPL Holdings, Inc.
February 4, 2017


13




EXHIBIT INDEX
 
The following is a list of exhibits filed as part of this registration statement.
 
 
 
 
Exhibit
 
Description  
 
 
 
1.1
 
Form of underwriting agreement*
3.1
 
Amended and Restated Certificate of Incorporation of LPL Investment Holdings Inc. (1)
3.1
 
Certificate of Ownership and Merger Merging LPL Financial Holdings Inc. with and into LPL Investment Holdings Inc. (2)
3.2
 
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of LPL Financial Holdings Inc. (3)
3.3
 
Fifth Amended and Restated Bylaws of LPL Financial Holdings Inc. (4)
3.4
 
Amended and Restated Articles of Organization of LPL Holdings, Inc. (filed herewith)
3.5
 
Articles of Merger Merging LPL Holdings, Inc. with BD Acquisition, Inc. (filed herewith)
3.6
 
Amended and Restated Bylaws of LPL Holdings, Inc. (filed herewith)
4.1
 
Specimen common stock certificate (5)
4.2
 
Form of Indenture (filed herewith)
5.1
 
Opinion of Ropes & Gray LLP (filed herewith)
12.1
 
Statement Regarding Computation of Ratio of Earnings to Fixed Charges (filed herewith)
23.1
 
Consent of Deloitte & Touche LLP (filed herewith)
23.2
 
Consent of Ropes & Gray LLP (included in Exhibit 5.1)
24.1
 
Power of attorney — included on the signature page
25.1
 
Statement of Eligibility of Trustee (6)
 
 
 
*
 
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities.
(1)
 
Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1 filed on July 9, 2010.
(2)
 
Incorporated by reference to the Form 8-K filed on June 19, 2012.
(3)
 
Incorporated by reference to the Form 8-K filed on May 9, 2014.
(4)
 
Incorporated by reference to the Form 8-K filed on March 12, 2014.
(5)
 
Incorporated by reference to Exhibit 4.1 to Current Report on Form 8-K filed on July 23, 2010.
(6)
 
To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
 
 
 


14
Exhibit 3.4

THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
                            
I hereby approve the within Restated Articles of Organization and, the filing fee in the amount of $5,000 having been paid, said articles are deemed to have been filed with me this 28 th day     of March, 2003.
Effective Date:                     


WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Eileen M. Pembroke
LPL Holdings, Inc.
One Beacon Street, 22nd Floor
Boston, Massachusetts 02108
Telephone: 617-423-3644, 4293




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Articles of Amendment
(General Laws Chapter 156D, Section 10.06; 950 CMR 113.34)
LPL Holdings, Inc., having a registered office at One Beacon Street, Boston, Massachusetts 02108, certifies as follows:
FIRST, Articles IV and VI of the Restated Articles of Organization of the corporation are amended by this Amendment.
SECOND, this Amendment was duly adopted and approved on December 13, 2005 by the board of directors and on December 20, 2005 by the shareholders in the manner required by law and the Articles of Organization.
THIRD, the specific text of the amendments effected by this Amendment is as follows:
ARTICLE IV is amended in its entirety to read as follows:
ARTICLE IV. The preferences, limitations and relative rights of each class of stock are as follows:
A.    The capital stock of the Corporation shall consist of three classes of common stock: Class A Common Stock, $.01 par value per share (the “Class A Common Stock”), Class B Common Stock, $.01 par value per share (the “Class B Common Stock”), and Class C Common Stock, $.01 par value per share (the “Class C Common Stock”) (with the Class A Common Stock, Class B Common Stock and Class C Common Stock, being collectively referred to herein as the “Common Stock”). The specific rights and privileges of the classes are as follows:
(i)     Class A Common Stock . Each holder of Class A Common Stock shall be entitled to vote at any time on matters presented to the stockholders of the Corporation for their approval, adoption or authorization and shall have one vote for each share of Class A Common Stock held of record by such holder. Unless prevented by applicable law, all shares of Class A Common Stock shall vote as a single class on all matters requiring the approval of the stockholders of the Corporation.
(ii)     Class B Common Stock . The holders of Class B Common Stock shall not be entitled to vote their shares of Class B Common Stock at any meeting of stockholders (or to take action by written consent in lieu of a meeting) unless the provisions of the Massachusetts Business Corporation Act shall expressly provide that such a vote is required.
(iii)     Class C Common Stock . The holders of Class C Common Stock shall not be entitled to vote their shares of Class C Common Stock at any meeting of stockholders (or to take action by written consent in lieu of a meeting) unless the provisions of the Massachusetts Business Corporation Act shall expressly provide that such a vote is required.
B.    At the Effective Time (as defined below), shares of Common Stock shall have the following rights:

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(i)     Class A Common Stock . Each share of Class A Common Stock outstanding immediately prior to the Effective Time (other than shares of Class A Common Stock theretofore contributed to the Buyer or an Affiliate of Buyer (as defined below)) shall be converted into the right to receive (i) $230.83 in cash, without interest and (ii) 2.24110 TARs (as defined below) (collectively, the “Class A Merger Consideration”).
(ii)     Class B Common Stock . Each share of Class B Common Stock outstanding immediately prior to the Effective Time (other than shares of Class B Common Stock theretofore contributed to Buyer or an Affiliate of Buyer) shall be converted into the right to receive (i) $103 in cash, without interest, and (ii) one TAR (collectively, the “Class B Merger Consideration”); provided , however , that the per share cash portion of the Class B Merger Consideration shall be increased to take into account the value of any Company Stock Options (as defined below) or SARs (as defined below) cancelled between October 27,2005 and the closing date of the Merger and any Bonus Credits not issued prior to the Effective Time) (it being understood that in no event shall the aggregate cash consideration allocable to the Class B Common Stock on a fully diluted basis increase).
(iii)      Class C Common Stock . Each share of Class C Common Stock outstanding immediately prior to the Effective Time (other than shares of Class C Common Stock theretofore contributed to Buyer or an Affiliate of Buyer) shall be converted into the right to receive (i) $230.77 in cash, without interest, and (ii) 2.24047 TARs (collectively, the “Class C Merger Consideration”).
(iv)    Each share of Common Stock held by Buyer or an Affiliate of Buyer, or in the treasury of the Corporation, if any, immediately prior to the Effective Time shall be cancelled.
(v)      TAR FMV Adjustment . The per share cash portion of the Class A Merger Consideration, the Class B Merger Consideration and the Class C Merger Consideration shall be decreased proportionately (based on the aggregate cash portion of (1) Class A Merger Consideration, (2) Class Merger Consideration and (3) Class C Merger Consideration) to take into account the increase in cash proceeds the holders of SARs will receive as a result of clause (ii) of the definition of “TAR FMV.”
(vi)    The Corporation may deduct any transaction expenses required to be borne by the holders of Common Stock pursuant to the terms of the Merger Agreement (as defined below) from the amounts payable to such holders under the foregoing clauses (i), (ii) and (iii).
(vii)    For purposes of this Article IV:
“Affiliate” shall mean, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls , is controlled by or is under common control with, such specified Person.
“Buyer” shall mean BD Investments Holdings Inc.
“Buyer Capital Stock” shall mean shares of Buyer common stock or Buyer preferred stock.

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“Bonus Credits” shall mean the bonus credits granted under the Corporation’s Second Amended and Restated 2000 Stock Bonus Plan and any related grant agreements under such plan which are outstanding immediately prior to the Effective Time.
“Company Stock Options” shall mean options to acquire shares of Class B Common Stock.
“Effective Time” shall mean the effective time of the Merger (as defined below).
“Excess Amount” for a Sponsor as of a given date is (i) the sum of all LP Distribution Amounts (as defined below) relating to LP Distributions (as defined below) by that Sponsor, including the LP Distribution made on such date by that Sponsor, MINUS (ii) the Hurdle Amount (as defined below).
“Fair Market Value” for each Sponsor shall be determined in accordance with the valuation procedures set forth in its fund limited partnership agreement, where a copy of such procedures has been provided to the Corporation.
“Hurdle Amount” as of a given Measurement Date (as defined below) for a Sponsor means (i) prior to the achievement of a positive Excess Amount an amount equal to the greater of (A) the product of two and the Sponsor’s Total Initial Investment (as defined below) and (B) an amount that is equal to the sum of all LP Distribution Amounts prior to such Measurement Date plus a target amount such that the Internal Rate of Return of all prior LP Distribution Amounts including the target amount is 35% (calculated annually and based on a 365-day year) and (ii) once a positive Excess Amount has been achieved, the Hurdle Amount for all future periods for a Sponsor shall be deemed to be the Hurdle Amount on the Measurement Date upon which a positive Excess Value was first achieved.
“Internal Rate of Return” as of a given date shall mean the internal rate of return that the aggregate LP Distribution Amounts made by a Sponsor prior to or on such date represent with respect to such Sponsor’s Total Initial Investment calculated by the Sponsor assuming all cash inflows and outflows (including prior payments pursuant to the TARs) occur on the first calendar day of the calendar month in which such inflows or outflows occur.
“LP Distribution” means the completion of a distribution by a Sponsor to its limited partners of dividends with respect to Buyer Capital Stock, net sales or redemption proceeds on Buyer Capital Stock, or an in-kind distribution of Buyer Capital Stock; provided, however, that if a Sponsor receives dividends or sales or redemption proceeds with respect to Buyer Capital Stock and does not distribute such dividends or other proceeds to its limited partners, the receipt of such amounts by such Sponsor shall be deemed to be a distribution to its limited partners for purposes hereof on the same basis as if such distribution had occurred (it being understood, however, that if the reason for the failure to distribute non-cash proceeds is a contractual or securities law restriction on such distribution, then no distribution of such proceeds shall be deemed to have occurred unless and until it actually occurs or such restrictions no longer apply).
“LP Distribution Amount” means the realized value to the limited partners of an LP Distribution by a Sponsor (where the valuation of non-cash distributions shall be determined by their fair

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market value) multiplied by the quotient obtained by dividing the Sponsor’s Total Initial Investment Shares by the Sponsor’s Total Investment Shares (as defined below).
“Measurement Date” means the date at which the Hurdle Amount is calculated.
“Merger” shall mean the merger of BD Acquisition Inc. with and into the Corporation.
“Merger Agreement” means the Agreement and Plan of Merger between BD Investment Holdings, Inc., BD Acquisitions Inc. and LPL Holdings, Inc. dated October 27, 2005 providing for the Merger (as it may be amended from time to time).
“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity, or any group comprised of two or more of the foregoing.
“SARs” means a stock appreciation right granted under the Corporation’s 1999 Stock Appreciation Rights Plan or the GPA Technologies Company Stock Appreciation Rights Plan and any related grant agreements under such plans.
“Sponsors” means Hellman & Friedman Capital Partners V, L.P., Hellman & Friedman Capital Partners V (Parallel), L.P., TPG Partners IV, L.P. and their respective permitted assigns.
“TAR” represents the right to receive an amount which is payable by the Sponsors (severally based on each Sponsor’s respective share of the total Buyer Capital Stock owned by the Sponsors immediately following the Effective Time (“Respective Share”)) pursuant to the Merger Agreement divided by the number of TARs issued at the Effective Time. If a Sponsor makes an LP Distribution then, the Sponsor will calculate the Hurdle Amount, the Excess Amount and the TAR Value. If the TAR Value is a positive number, then the Sponsor will pay to the holders of TARs an amount equal to (i) the TAR Value MINUS (ii) the sum of all prior amounts paid to date by that Sponsor in respect of the TARs (it being understood that if the amount calculated under this sentence is less than or equal to zero, then no payment shall be made). For the sake of clarity, if, as of any given Measurement Date, the TAR Value is a positive number, then all subsequent LP Distributions shall effectively ignore the definitions of Excess Value and TAR Value and result in a payment of 10% of such subsequent LP Distribution Amount to the TAR holders. Such payment shall be in cash unless all or a portion of the Sponsor’s LP Distribution consists of non-cash consideration, in which case, such Sponsor may satisfy its obligations by delivering the same proportion of cash and such non-cash consideration as the proportion received by such Sponsor. Each Sponsor’s maximum liability with respect to the TARs under the Merger Agreement shall be its Respective Share of $250 million. If after the Effective Time any change in the outstanding capital stock of the Buyer (or its successor) shall occur by reason of any reclassification, recapitalization, reorganization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon, or similar transaction, then the amount payable pursuant to the TARs shall be appropriately adjusted.

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‘TAR FMV” shall (i) mean $0 as of October 27, 2005 and (ii) be adjusted not less than 10 days prior to the Effective Time to be the amount determined by the Corporation to be the fair market value of the TAR portion of the per share Class B Merger Consideration after having obtained an independent valuation of the TARs.
“TAR Value” for a Sponsor as of a given date shall mean if the Excess Amount is a positive number, an amount equal to 10% of the Excess Amount.
“Total Initial Investment” of a Sponsor shall mean the total purchase price (in cash or other equity consideration) paid to Buyer by the Sponsor for all Buyer Capital Stock issued to such Sponsor at or prior to the Effective Time (net of the $15 million dollar payment pursuant to Section 6.12 of the Merger Agreement), plus all out-of-pocket fees and expenses incurred by such Sponsor that the Sponsor actually pays to non-affiliated third parties solely in connection with such purchase.
“Total Initial Investment Shares” of a Sponsor shall mean the total number of shares of Buyer Capital Stock acquired by the Sponsor as consideration for the Total Initial Investment.
“Total Investment” of a Sponsor shall mean the total purchase price (in cash or other equity consideration) paid to Buyer by the Sponsor for all Buyer Capital Stock issued to such Sponsor plus (i) any capital contributions to Buyer that such Sponsor makes in respect of any shares of Buyer Capital Stock owned by such Sponsor and (ii) all out-of-pocket fees and expenses incurred by such Sponsor that the Sponsor actually pays to non-affiliated third parties solely in connection with such purchase.
“Total Investment Shares” of a Sponsor shall mean the total number of shares of Buyer Capital stock acquired by the Sponsor as consideration for the Total Investment.
ARTICLE VI is amended to delete the fourth paragraph thereof in its entirety and replace it with the following paragraph:
Action required or permitted by the Massachusetts Business Corporation Act to be taken at a stockholders’ meeting may be taken without a meeting by the written consent of stockholders having not less than the minimum number of votes necessary to take the action at a meeting which all stockholders entitled to vote on the action are present and voting.
FOURTH, this Amendment does not authorize an exchange or effect a reclassification or cancellation of issued shares of the corporation.
FIFTH, this Amendment does not change the number of shares or par value (if any) of any type, or designate a class or series of stock, or change a designation of any class or series of stock.
The foregoing amendment will become effective at the time and on the date when these Articles of Amendment are approved by the Division.

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Signed by     Stephanie L. Brown            
(Please check appropriate box)
o     Chairman of the board of directors,
o     President,
ý     Other officer,
o     Court-appointed fiduciary,
On this 28 th day of December, 2005.



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Exhibit 3.5

COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
Articles of Amendment
(General Laws Chapter 156D, Section 10.06; 950 CMR 113.34)
I hereby certify that upon examination of these articles of amendment, it appears that the provisions of the General Laws relative thereto have been complied with, and the filing fee in the amount of $200.00 having been paid, said articles are deemed to have been filed with me this 28th day of December, 2005 at 2:36 p.m.
Effective date:                             
         (must be within 90 days of date submitted)
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
Filing fee: Minimum filing fee $100 per article amended, stock increases $100 per 100,000 shares, plus $100 for each additional 100,000 shares or any fraction thereof.
Contact information:
Stephanie L. Brown, Esq.
LPL Holdings, Inc.
One Beacon Street
22nd Floor
Boston, MA 02108-3106
Telephone: (617) 423-3644
Email: stephanie.brown@lpl.com




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Articles of Merger Domestic Entities
(General Laws, Chapter 156D, Section 11.06; 950 CMR 113.35)
1.    The exact names of each domestic corporation, or other entity involved in the merger are LPL Holdings, Inc., a Massachusetts business corporation, and BD Acquisition Inc., a Massachusetts business corporation.
2.    The exact name of the surviving entity is LPL Holdings, Inc.
3.    The merger shall be effective at the time and on the date these articles of merger are approved by the Division.
4.      (Please check the appropriate box)
ý
The plan of merger was duly approved by the shareholders and, if voting by any separate voting group was required, by each separate voting group, in the manner required by G.L Chapter 156D and the corporation’s articles of organization;
OR
¨     The plan of merger did not require the approval of the shareholders.
5.    Participation of each other entity was duly authorized by the law under which the other entity is organized or by which it is governed and by its articles of organization or other organizational documents.
6.    The articles of organization of the surviving entity, which is a domestic business corporation, are hereby amended as set forth in the attachment hereto. The authorized capital of the surviving entity immediately before the amendment was as follows: (i) 6,000,000 shares of Class A Common Stock; (ii) 6,000,000 shares of Class B Common Stock and (iii) 3,000,000 shares of Class C Common Stock. The authorized capital for the surviving entity immediately after the amendment shall be as follows: 100 shares of common stock.
7.    Where applicable, attach the articles of organization of the surviving entity where the survivor is a NEW domestic business corporation, including all the supplemental information required by 950 CMR113.16. Not applicable.


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Signed by
Stephanie L. Brown, Secretary        
(
signature of authorized individual )
o     Chairman of the Board of Directors
o     President
ý     Other Officer
o     Court-appointed fiduciary
On this 28 th day of December, 2005.


Signed by

(
signature of authorized individual )
o     Chairman of the Board of Directors
o     President
o     Other Officer
o     Court-appointed fiduciary
On this ______ day of ____________, ____.


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Signed by

(
signature of authorized individual )
o     Chairman of the Board of Directors
o     President
o     Other Officer
o     Court-appointed fiduciary
On this ______ day of ____________, ____.



Signed by
John E. Viola                        
(
signature of authorized individual )
John E. Viola, Vice President and Assistant Treasurer
o     Chairman of the Board of Directors
o     President
ý     Other Officer
o     Court-appointed fiduciary
On this 28th day of December of 2005.




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Attachment to Articles of Merger
of LPL Holdings, Inc. and BD Acquisition, Inc.
ARTICLE II . The corporation may engage in any lawful business.
ARTICLE III . The total number of shares of each class of stock that the corporation is authorized to issue is 100 shares, no par value per share, which shall consist entirely of common stock.
ARTICLE IV . The preferences, limitations and relative rights of the common stock are as follows:
Except as otherwise provided by law, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall have one vote, and the Common Stock shall vote together as a single class.
ARTICLE V . The restrictions imposed by the Articles of Organization upon the transfer of shares of any class or series of stock are as follows: None.
ARTICLE VI . Other lawful provisions:
Section 1. Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
Section 2. In furtherance and not in limitation of the powers conferred by law, the Board of Directors of the Corporation (the “Board”) is expressly authorized and empowered to make, alter and repeal the By-Laws of the Corporation by a majority vote at any regular or special meeting of the Board or by written consent, subject to the power of the stockholders of the Corporation to alter or repeal any By-Laws made by the Board.
Section 3. The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in these Articles of Organization, and any other provisions authorized by the laws of the Commonwealth of Massachusetts at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Articles of Organization in its present form or as hereafter amended are granted subject to the right reserved in this Article.
Section 4. Elimination of Certain Liability of Directors. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Massachusetts Business Corporation Act as the same exists or may hereafter be amended,

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Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification.
Section 5. Indemnification and Insurance .
(a)     Right to Indemnification . Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Massachusetts Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, to the fullest extent permitted by law, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided however, that, except as provided in paragraph (b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only of such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding to advance of its final disposition; provided, however, that, if the Massachusetts Business Corporation Act requires, the payment of such expenses incurred by a director or officer in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Corporation may, by action of the Board, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.
(b)     Right of Claimant to Bring Suit . If a claim under paragraph (a) of this Section is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other

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than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Massachusetts Business Corporation Act for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Massachusetts Business Corporation Act, nor in actual determination by the Corporation (including its Board, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
(c)      Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Organization, By-law, agreement, vote of stockholders or disinterested directors or otherwise.
(d)     Insurance . The Corporation may maintain insurance, at its expense to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Massachusetts Business Corporation Act.



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COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
Articles of Merger Domestic Entities
(General Laws, Chapter 156D, Section 11.06)
I hereby certify that upon examination of these Articles of Merger, duly submitted to me, it appears that the provisions of the General Laws relative thereto have been complied with, and I hereby approve said articles; and the filing fee in the amount of $          having been paid, said articles are deemed to have been filed with me this          day of          , 20__ at __________ a.m./p.m.

Effective date:                             
         (must be within 90 days of date submitted)
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
Filing fee: $250.00
TO BE FILLED IN BY CORPORATION
Contact information:
Cynthia Sullivan
Wilmer Cutler Pickering Hale and Dorr LLP
Bay Colony Corporate Center, 1100 Winter Street, Waltham, MA 02451
Telephone: 781-966-2032
Email: Cynthia.Sullivan@wilmerhale.com



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THE COMMONWEALTH OF MASSACHUSETTS
I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on:
December 28, 2005 3:50 PM

WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth




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Exhibit 3.6









AMENDED AND RESTATED
BY-LAWS OF
LPL HOLDINGS





TABLE OF CONTENTS
FISCAL YEAR
1
STOCKHOLDERS
1
Section 1. Annual Meeting    1
Section 2. Special Meetings    1
Section 3. Record Date    1
Section 4. Place of Meetings    2
Section 5. Notice of Meetings    2
Section 6. Quorum    2
Section 7. Adjournments    2
Section 8. Voting    2
Section 9. Proxies    2
Section 10. Action at Meetings    3
Section 11. Action without a Meeting    3
DIRECTORS
3
Section 1. Powers    3
Section 2. Number    3
Section 3. Election    4
Section 4. Qualification    4
Section 5. Tenure and Resignation    4
Section 6. Regular Meetings    4
Section 7. Special Meetings    4
Section 8. Notice of Meetings    4
Section 9. Quorum    5
Section 10. Adjournments    5
Section 11. Action at Meetings    5
Section 12. Action without a Meeting    5
Section 13. Committees    5
Section 14. Telephonic Meetings    5


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OFFICERS
5
Section 1. Designation    5
Section 2. Election    6
Section 3. Qualification    6
Section 4. Tenure and Resignation    6
Section 5. General Powers and Duties of Officers    6
Section 6. Powers and Duties of the President and Vice Presidents    6
Section 7. Powers and Duties of the Treasurer and Assistant Treasurers    6
Section 8. Powers and Duties of the Clerk and Assistant Clerks    7
Section 9. Powers and Duties of the Secretary    7
REMOVALS
7
VACANCIES
7
COMPENSATION OF DIRECTORS AND OFFICERS
8
INDEMNIFICATION OF DIRECTORS AND OFFICERS
8
POWERS OF DIRECTORS, OFFICERS, AND OTHER AGENTS TO CONTRACT WITH THE CORPORATION
9
CAPITAL STOCK
9
Section 1. Certificates of Stock    9
Section 2. Transfers    9
Section 3. Replacement of Certificate    10
SEAL
10
EXECUTION OF INSTRUMENTS
10
VOTING OF SECURITIES
10
AMENDMENTS
11



- ii -



ARTICLE I
FISCAL YEAR
Except as the board of directors may otherwise determine from time to time, the fiscal year of the corporation shall end each year on December 31.
ARTICLE II
STOCKHOLDERS
Section 1.      Annual Meeting . The annual meeting of stockholders shall be held on the third Tuesday of March in each year (except that, when that day falls on a legal holiday, the annual meeting shall be held on the next business day) at ten o’clock in the morning, unless a different hour shall have been fixed by the board of directors or by the president and stated in the notice of the meeting. Purposes for which an annual meeting is to be held, in addition to those prescribed by law or by the Articles of Organization of the corporation or by the other provisions of these By-Laws, shall be specified by the board of directors or by a writing signed by the president and filed with the clerk. If an annual meeting shall not have been held on the date fixed in these By-Laws, a special meeting in lieu of annual meeting may be held with all the force and effect of an annual meeting.
Section 2.      Special Meetings . Special meetings of stockholders may be held at any time. Special meetings of stockholders may be called by the president or by the board of directors, and shall be called by the clerk, or, in the case of the death, absence, incapacity or refusal of the clerk, by any other officer, upon written application of one or more stockholders who hold at least one-tenth part in interest of the capital stock entitled to vote at such meeting.
Section 3.      Record Date . The board of directors may fix in advance the record date for determining the stockholders having the right to notice of, and to vote at, any meeting of stockholders and any meeting reconvened after adjournment of any meeting, or the right to receive a dividend or distribution, or the right to express consent or dissent for any purpose. Such record date shall be not more than sixty days preceding the date of any such meeting of stockholders, or the date for payment of any such dividend or distribution to stockholders, or the last day upon which such consent or dissent may be effectively expressed. If the board of directors shall have fixed a record date, only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the corporation after the record date so fixed. Without fixing a record date, the board of directors may, for any of such purposes, close the transfer books for all or any part of such period. If the board of directors shall not have so fixed a record date or closed the transfer books, the record date for determining stockholders having the right to notice of or to vote at a meeting of the stockholders shall be at the close of business on the business day preceding the day upon which notice shall be given, and the record date for determining stockholders for any other purpose shall be at the close of business on the day upon which the board of directors shall act with respect to any such purpose.

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Section 4.      Place of Meetings . All meetings of stockholders shall be held at the principal office of the corporation or at such other place within or, to the extent permitted by law and the Articles of Organization of the corporation, without, The Commonwealth of Massachusetts as may be fixed by the board of directors or by the president and stated in the notice of the meeting.
Section 5.      Notice of Meetings . A written notice of the place, date, hour and purposes of all meetings of the stockholders shall be given by the clerk or an assistant clerk or, in case of the death, absence, incapacity, unavailability or refusal of both the clerk and the assistant clerk, by any other officer, or by a person designated by either the clerk or an assistant clerk, or by the person or persons calling the meeting, or by the board of directors, or by any other person who lawfully may give such notice, at least seven days before the meeting or such greater period as may be required by law, to each stockholder entitled to vote at the meeting and to each stockholder who, by law, or by the Articles of Organization of the corporation, or by the other provisions of these By-Laws, shall be entitled to such notice, by leaving such notice with such stockholder, or at the residence or usual place of business of such stockholder, or by mailing it, postage prepaid, and addressed to such stockholder at the address of the stockholder as it appears in the records of the corporation. A written waiver of notice of a meeting, executed before or after the meeting by such stockholder, or by such stockholder’s attorney thereunto authorized, and filed with the records of the meeting shall be deemed equivalent to such notice. The notice may state that one of the purposes of the meeting shall be to consider and transact any business properly brought before the meeting; and, if so, any such business may be transacted, whether or not the notice of the meeting shall have further specified the nature of such business.
Section 6.      Quorum . A majority in interest of all stock issued, outstanding and entitled to vote at a meeting shall constitute a quorum of the stockholders.
Section 7.      Adjournments . Whether or not a quorum of the stockholders shall be present at a meeting of stockholders, a majority in interest of the stock represented and entitled to vote at the meeting may adjourn the meeting. Any meeting so adjourned may be reconvened pursuant to the vote of adjournment without further notice and further adjourned and reconvened from time to time in the same manner. If the vote of adjournment shall not have specified a time or place at which a meeting so adjourned shall be reconvened, such meeting shall reconvene at the offices of the corporation at 10:00 a.m. upon the date stated in the vote of adjournment.
Section 8.      Voting . Stockholders entitled to vote shall have one vote for each share of stock owned by them and a proportionate vote for any fractional share of stock owned by them.
Section 9.      Proxies . Stockholders may vote in person or by proxy. Proxies shall be filed with the clerk of the meeting before being voted. No proxy dated more than six months before the meeting named in the proxy shall be valid, and no proxy shall be valid after final adjournment of a meeting. Notwithstanding the provisions of the previous sentence, a proxy coupled with an interest sufficient in law to support an irrevocable power, including, without limitation, an interest in the shares of the corporation or in the corporation generally, may be made irrevocable if the proxy so provides; need not specify the meeting to which the proxy relates; and shall be valid and enforceable until such interest shall have terminated, or for such

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shorter period as may be specified in the proxy. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by any one of them unless the corporation shall have received a specific written notice to the contrary from any one of them at or prior to exercise of the proxy. A proxy purporting to have been executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise, and the challenger shall have the burden of proving invalidity.
Section 10.      Action at Meetings . When a quorum of the stockholders shall be present at any meeting, the vote or concurrence of a majority in interest of all stock issued, outstanding and entitled to vote at the meeting shall be required to decide any matter or take any action, except to the extent that a greater proportion may be required by law, or by the Articles of Organization of the corporation, or by the other provisions of these By-Laws.
Section 11.      Action without a Meeting . Any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action in writing and such written consents are filed with the records of the meetings of stockholders. Such consents shall be treated for all purposes as a vote at a meeting.
ARTICLE III
DIRECTORS
Section 1.      Powers . The business of the corporation shall be managed by a board of directors, which may exercise all the powers of the corporation except such as by law, or by the Articles of Organization of the corporation, or by the other provisions of these By-Laws are exclusively conferred upon or reserved solely to the stockholders. The board of directors, or any committee elected from and by the board of directors and to which the board of directors shall have conferred such powers, may at any time, and from time to time, offer for sale, sell and issue the whole or any part of the unissued capital stock of the corporation that is authorized by the Articles of Organization of the corporation or by any amendment of said Articles of Organization, and may at any time, and from time to time, offer for sale, sell and reissue shares of any series that shall have been restored to the status of authorized but unissued shares, to such person, trust, corporation or other legal entity, for such cash or other lawful consideration for which stock may be issued, and upon such terms, as the board of directors may determine; and, subject to applicable provisions of law, may allocate any such consideration between the capital and surplus of the corporation in such proportions as said board of directors or committee may determine.
Section 2.      Number . The board of directors shall consist of not fewer than three directors except that, whenever the corporation shall have only two stockholders, the number of directors shall be not fewer than two, and whenever the corporation shall have only one stockholder, the board of directors may consist of one director. Subject to the provisions of the previous sentence, the stockholders shall fix the number of directors for the ensuing corporate year at the annual meeting of the stockholders; but the stockholders may, at any special meeting held for that purpose, increase or decrease the number of directors thus fixed and elect new

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directors to fill vacancies in the office of director resulting from such increase, or remove directors to reduce the number of directors to the number so decreased.
Section 3.      Election . The directors of the corporation shall be elected at the annual meeting of the stockholders or the special meeting in lieu of said annual meeting by such stockholders as shall have the right to vote upon election of directors. Elections of directors shall be by ballot if so requested by any stockholder entitled to vote upon election of directors.
Section 4.      Qualification . A director may, but need not be a stockholder, officer or an employee of the corporation.
Section 5.      Tenure and Resignation . Subject to law, to the Articles of Organization of the corporation, and to the other provisions of these By-Laws, each director shall hold office until the next annual meeting of the stockholders and until his or her successor shall have been duly elected and qualified. Any director may resign by delivering a written resignation to the corporation at its principal office or to the president or clerk of the corporation. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
Section 6.      Regular Meetings . A regular meeting of the board of directors following the annual meeting of the stockholders or the special meeting in lieu of such annual meeting may be held, without call or notice, immediately after and at the same place as such meeting of the stockholders. Other regular meetings of the board of directors may be held without call or notice at such place and at such times as the board of directors may from time to time determine, provided that each director shall have received at least one notice of the date, time and place of such other regular meeting.
Section 7.      Special Meetings . Special meetings of the board of directors may be held at any time and at any place when and as called by the president, the treasurer, or one or more directors.
Section 8.      Notice of Meetings . The clerk, or an assistant clerk, or the officer or the director or directors calling the meeting, shall give to each director notice of the place, date and hour of all special meetings of the board of directors by telephone or by mail, telegram, telex, facsimile transmission or any form of communication similar to any of the foregoing, addressed to such director at the usual or last known business or residence address of such director, or at such other address as said director may from time to time designate in writing, or by leaving such notice with the director or at such address. Notice sent by mail shall be mailed at least forty-eight hours before the meeting. Notice of a meeting sent by telegram, telex, facsimile transmission, or any similar form of communication, or given by telephone, or by leaving such notice, shall be sent or given, as the case may be, at least twenty-four hours before the meeting. Notwithstanding any of the foregoing to the contrary, notice given by any method shall be deemed sufficient if actually received at least twenty-four hours before the meeting. Notice of a meeting need not be given to any director if a waiver of notice, executed by the director before or after the meeting, shall be filed with the records of the meeting, or to any director who shall have attended the meeting without protesting at or prior to its commencement the lack of notice to him or her.

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Section 9.      Quorum . A majority of the number of directors constituting the full board of directors as fixed by the stockholders shall constitute a quorum of the board of directors.
Section 10.      Adjournments . A quorum of the board of directors may adjourn any meeting of the directors; and, if a quorum of the board of directors shall not be present at a meeting, a majority of the directors present may vote to adjourn the meeting. Any meeting so adjourned may be reconvened without further notice pursuant to the vote of adjournment and further adjourned in the same manner. If the vote of adjournment shall not have specified a time or place at which a meeting so adjourned shall be reconvened, such meeting shall reconvene at the offices of the corporation at 10:00 a.m. upon the date stated in the vote of adjournment.
Section 11.      Action at Meetings . When a quorum of the board of directors shall be present at any meeting, the vote or concurrence of a majority of the number of directors fixed by the stockholders shall be required to decide any matter or take any action, except to the extent that a greater proportion may be required by law, or by the Articles of Organization of the corporation, or by the other provisions of these By-Laws.
Section 12.      Action without a Meeting . Any action required or permitted to be taken at any meeting of the board of directors may be taken without a meeting if all the directors consent to the action in writing and the written consents are filed with the records of the meetings of the board of directors. Such consents shall be treated for all purposes as a vote at a meeting.
Section 13.      Committees . The board of directors may elect from their number an executive committee and/or other committees and may delegate to any such committee some or all of the powers of the board of directors, except those that the board of directors is prohibited from delegating by law, or by the Articles of Organization of the corporation, or by the other provisions of these By-Laws. Except as the board of directors may otherwise determine, any such committee may make rules for conduct of its business. Unless otherwise provided by the board of directors or in such rules, the business of any such committee shall be conducted, to the extent possible, in the same manner as is provided by the other provisions of these By-Laws for conduct of the business of the board of directors.
Section 14.      Telephonic Meetings . Directors may participate in a meeting by means of a conference telephone call or use of similar communications equipment, provided that all directors participating in a meeting can hear each other at the same time. Such participation shall constitute presence in person at a meeting.
ARTICLE IV
OFFICERS
Section 1.      Designation . The officers of the corporation shall be a president, a treasurer, a clerk and such other officers, including one or more vice presidents, assistant treasurers and assistant clerks, a chairman of the board, a chief executive officer and a secretary, as the board of directors may determine.

- 5 -



Section 2.      Election . The board of directors shall elect the president, treasurer and clerk and any other officers.
Section 3.      Qualification . The president may, but need not, be a director. The clerk shall be a resident of The Commonwealth of Massachusetts unless the corporation shall have appointed a resident agent for the purpose of service of process. To the extent permitted by law, any two or more offices may be held by the same person. No officer need be a stockholder. No officer need work for the corporation on a full-time basis.
Section 4.      Tenure and Resignation . Subject to law, to the Articles of Organization of the corporation, and to the other provisions of these By-Laws, the president, treasurer and clerk each shall hold office until the first meeting of the board of directors following the annual meeting of the stockholders and until his or her successor shall have been duly elected and qualified. Subject to law, to the Articles of Organization of the corporation, and to the other provisions of these By-Laws, each other officer shall hold office until the first meeting of the board of directors following the annual meeting of the stockholders and until the successor of such officer shall have been duly elected and qualified, unless a shorter term shall have been specified in the vote electing such officer. Any officer may resign by delivering a written resignation to the corporation at its principal office or to the president or clerk of the corporation. Such resignation shall be effective upon receipt, unless it is specified to be effective at some other time or upon happening of some other event.
Section 5.      General Powers and Duties of Officers . Subject to law, to the Articles of Organization of the corporation, to the other provisions of these By-Laws, and to such action as the board of directors may take from time to time, each officer shall have, in addition to the duties and powers set forth in succeeding sections of these By-Laws, such duties and powers as are commonly incident to the office.
Section 6.      Powers and Duties of the President and Vice Presidents . Except as the board of directors may from time to time otherwise determine, the president shall be the chief executive officer of the corporation and shall, subject to the direction of the board of directors, have general supervision and control of the business of the corporation. Unless otherwise provided by the board of directors, the president shall preside, when present, at all meetings of stockholders and of the board of directors. The president shall have custody of the treasurer’s bond if the board of directors shall require such a bond. Any vice president shall have such duties and powers as the board of directors may from time to time designate.
Section 7.      Powers and Duties of the Treasurer and Assistant Treasurers . Subject to the direction of the board of directors, the treasurer shall have general charge of the financial affairs of the corporation, shall cause to be kept accurate books of account and shall have care and custody of all funds, securities and valuable documents of the corporation. If the board of directors so requires, the treasurer shall give bond for faithful performance of his or her duties in such form and with such sureties as the board of directors may determine from time to time. Any assistant treasurer shall have such duties and powers as the board of directors may from time to time designate.

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Section 8.      Powers and Duties of the Clerk and Assistant Clerks . The clerk shall keep in The Commonwealth of Massachusetts the original or attested copies of the Articles of Organization and the By-Laws of the corporation’s records of all meetings of incorporators, and of all meetings and consents in lieu of meetings, of stockholders and, unless a transfer agent shall have been appointed, the stock and transfer records, which shall contain the name, the record address of, and the amount of stock held by, each stockholder. Such copies and records shall be made available at all reasonable times for inspection for a proper purpose by the stockholders of the corporation at the principal office of the corporation or at an office of the transfer agent, clerk or resident agent of the corporation. All of said copies and records need not be kept in the same office. If a secretary shall not have been elected, the clerk shall also keep records of all meetings, and consents in lieu of meetings, of the board of directors. The clerk or an assistant clerk, if any, shall record the proceedings of any meeting of stockholders and, if a secretary shall not have been elected and the board of directors shall not have otherwise determined, of any meeting of the board of directors and shall have such additional powers and duties as the board of directors may determine from time to time. In the absence of the clerk and an assistant clerk from any meeting of stockholders, a temporary clerk who shall perform the duties of the clerk shall be chosen at such meeting.
Section 9.      Powers and Duties of the Secretary . If a secretary shall have been elected and the board of directors shall not have otherwise determined, the secretary shall keep a record of the meetings, and consents in lieu of meetings, of the board of directors. In the absence of such secretary from any meeting of the board of directors, a temporary secretary who shall perform the duties of the secretary shall be chosen at such meeting.
ARTICLE V
REMOVALS
The stockholders may remove any director from office with or without cause. The board of directors may remove from office with or without cause any officer elected or appointed by the board of directors. The board of directors may remove any director from office for cause. A director or officer may be removed for cause only after a reasonable notice and opportunity to be heard before the body proposing to remove him or her. The board of directors or the stockholders may terminate the authority of any agent.
ARTICLE VI
VACANCIES
If the office of any director becomes vacant for any reason, the stockholders or the board of directors may elect a successor or successors, except that only the stockholders may fill a vacancy resulting from enlargement of the board of directors. Each such successor elected by the stockholders or by the board of directors, as the case may be, shall hold office for the unexpired term of his or her predecessor, subject to the provisions of ARTICLE V of these By-Laws.

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ARTICLE VII
COMPENSATION OF DIRECTORS AND OFFICERS
If the board of directors so determines, any director may be paid a stated salary for services as director or a fixed sum for attendance at any or all meetings of the board of directors, or both, and may be reimbursed for expenses of attending any or all such meetings. No such payment or reimbursement shall preclude any director from serving the corporation in any other capacity and receiving compensation for so serving. The board of directors may from time to time fix the salaries of officers, and no officer shall be prevented from receiving such salary by reason of the fact that he or she is also a director of the corporation.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall indemnify against all liabilities and expenses, including reasonable fees of counsel, any person threatened with or made a party to any action, suit or other proceeding by reason of the fact that he or she, or his or her testator or intestate, is or was a director, officer, employee or other agent of the corporation, or is or was a director, officer, employee or other agent of the corporation who serves or served, at the request of the corporation, as a director, officer, employee or other agent of another organization, or who, at the request of the corporation, serves or served in any capacity with respect to an employee benefit plan, except that no indemnification shall be provided for any person with respect to any matter as to which such person shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interests of the corporation or of the participants or beneficiaries of the employee benefit plan; provided, however, as to matters disposed of by a compromise payment, pursuant to a consent decree or otherwise, no reimbursement, either for said payment or for any other expenses in connection with the matter so disposed of, shall be provided unless such compromise shall have been approved:
(a)
by a disinterested majority of the directors then in office; or
(b)
if a majority of the directors then in office shall be interested, by a majority of the disinterested directors then in office, provided that there shall have been obtained a written opinion of independent legal counsel to the effect that such person does not appear not to have acted in good faith in the reasonable belief that his or her action was in the best interests of the corporation or, to the extent that such matter relates to service with respect to an employee benefit plan, the best interests of the participants or beneficiaries of the employee benefit plan; or
(c)
by the holders of a majority of the outstanding stock at the time entitled to vote for directors, not counting as outstanding any stock owned by any interested person.

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The board of directors may from time to time authorize payment by the corporation of expenses incurred by any such person in defending any such action, suit or other proceeding in advance of its final disposition upon receipt of an undertaking from such person to repay such payment if such person shall have been adjudicated to be not entitled to indemnification under this ARTICLE VIII, or if the matter involved shall have been disposed of by a compromise payment with respect to which such person shall not be entitled to indemnification under this ARTICLE VIII. Such undertaking may be accepted without reference to the financial ability of such person to make repayment. Absence of an express provision in these By-Laws for indemnification or exoneration shall not limit any right of indemnification or exoneration existing independently of this ARTICLE VIII.
ARTICLE IX
POWERS OF DIRECTORS, OFFICERS, AND OTHER
AGENTS TO CONTRACT WITH THE CORPORATION
No contract or transaction between the corporation and one or more of its directors, officers, employees, agents or other persons financially interested in the corporation, or between the corporation and any other corporation, firm, association or other entity in which one or more of such persons are also financially interested, shall be either void or voidable for that reason alone, provided that such common directorship, officership or financial interest, if material, shall have been disclosed or known to each of the directors voting upon or concurring in the matter of approval of such contract or transaction. Common or interested directors shall be counted in determining presence of a quorum of the board of directors at a meeting at which any such matter shall be considered. Such common or interested directors may vote upon the matter of approval of such contract or transaction/ but any such vote shall require an affirmative vote of a majority of the directors who have no interest in such contract or transaction, even though the number of disinterested directors shall be fewer than the number required to constitute a quorum of the board of directors.
ARTICLE X
CAPITAL STOCK
Section 1.      Certificates of Stock . Each stockholder shall be entitled to a certificate stating the number and the class and the designation of the series, if any, of the shares, including any fractional share or shares held by such stockholder, in such form as shall, in conformity to law, be prescribed from time to time by the board of directors. Such certificate shall be signed by the president or a vice president and by the treasurer or an assistant treasurer and sealed with the corporate seal. Such signatures, or the seal of the corporation, or both, may be facsimiles if the certificate shall be signed by a transfer agent or by a registrar other than a director, officer or employee of the corporation. It shall be the duty of each stockholder to notify the corporation of his or her current post office address.
Section 2.      Transfers . Subject to any restrictions upon transfer contained in the Articles of Organization of the corporation, or placed upon the stock certificate by the

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corporation, or arising under applicable law, transfers of shares will be made upon the stock record books of the corporation only if the shares to be transferred shall have been assigned in writing, by the holder of record of the shares, or by his or her legal representative, who shall have furnished to the corporation proper evidence of authority to transfer, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the clerk of the corporation, and upon surrender for cancellation of the certificate representing such shares. The person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner of the shares for all purposes.
Section 3.      Replacement of Certificate . In case of alleged loss, destruction or mutilation of a certificate representing shares of stock, a duplicate certificate may be issued upon such terms and conditions as the board of directors may prescribe in conformity to law.
ARTICLE XI
SEAL
Subject to alteration by the board of directors, the seal of the corporation shall consist of a flat-faced circular die with the name of the corporation, the year of its incorporation, and the word “Massachusetts.”
ARTICLE XII
EXECUTION OF INSTRUMENTS
Except as the board of directors may generally or in particular cases otherwise determine, the president or the treasurer shall sign all deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations made, accepted or endorsed by the corporation.
ARTICLE XIII
VOTING OF SECURITIES
Except as the board of directors may generally or in particular cases otherwise determine, the president or the treasurer may act in the name and on behalf of the corporation as it is a stockholder or shareholder in another corporation or organization, except that no officer may transfer shares owned by the corporation unless specifically authorized so to do by the board of directors. Without limiting the generality of the foregoing, any person authorized by this Article XIII or by the board of directors to act in the name and on behalf of the corporation as it is a stockholder or shareholder in another corporation or organization may waive notice of, attend and vote at any meeting of stockholders or shareholders of any such corporation or organization; may consent in writing to any action of the stockholders or shareholders of any such corporation or organization; and may appoint any person or persons to act as proxy or attorney-in-fact for this corporation, with or without power of substitution, to do any of such acts.

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ARTICLE XIV
AMENDMENTS
The stockholders may make, alter, amend or repeal any provision or provisions of the By-Laws of the corporation, in whole or in part. If so authorized by the Articles of Organization of the corporation, the board of directors may also make, alter, amend or repeal any provision or provisions of the By-Laws of the corporation, in whole or in part, except that the board of directors may not take any action that alters any provision of these By-Laws with respect to removal of directors or election of committees by the board of directors and delegation of powers to any committee, or with respect to amendment of these By-Laws, or with respect to any provision that by law, or by the Articles of Organization of the corporation, or by the other provisions of the By-Laws, requires action by the stockholders. Not later than the time of giving notice of the meeting of stockholders next following the making, altering, amending or repealing by the board of directors of any provision or provisions of the By-Laws, notice stating the substance of such change shall be given to all stockholders entitled to vote on making, altering, amending or repealing of the By-Laws. The stockholders may alter, amend or repeal any provision or provisions of the By-Laws adopted by the board of directors.


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Exhibit 4.2



 
LPL HOLDINGS, INC.,
as Company,
and
[ ],
as Trustee

INDENTURE

Dated as of

[ ]










CROSS-REFERENCE TABLE
TIA Section      Indenture Section
310    (a)(1)    8.9
(a)(2)    8.9
(a)(3)    N/A
(a)(4)    N/A
(a)(5)    8.9
(b)    8.8; 8.9
(c)    N/A
311    (a)    8.13
(b)    8.13
(c)    N/A
312    (a)    9.1
(b)    9.2
(c)    9.2
313    (a)    9.3
(b)(1)    9.3
(b)(2)    9.3
(c)    9.3
(d)    9.3
314    (a)    9.4
(b)    N/A
(c)(1)    1.2
(c)(2)    1.2
(c)(3)    N/A
(d)    N/A
(e)    1.2
(f)    1.2
315    (a)    8.1
(b)    8.2
(c)    8.1
(d)    8.1; 8.3
(e)    7.14
316    (a) (last sentence)    1.1(“ Outstanding ”)
(a)(1)(A)    7.12
(a)(1)(B)    7.13
(a)(2)    N/A
(b)    7.8
(c)    10.2
317(a)(1)    7.3




(a)(2)    7.4
(b)    5.3
318    (a)    1.7
N/A means Not Applicable
_______________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.





TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1
Section 1.1.
Definitions.    1
Section 1.2.
Compliance Certificates and Opinions.    6
Section 1.3.
Form of Documents Delivered to Trustee.    7
Section 1.4.
Acts of Holders.    8
Section 1.5.
Notices, Etc., to Trustee or Company.     9
Section 1.6.
Notice to Holders; Waiver.    10
Section 1.7.
Conflict with Trust Indenture Act.    10
Section 1.8.
Effect of Headings and Table of Contents.    10
Section 1.9.
Successors and Assigns.    10
Section 1.10.
Separability Clause.    11
Section 1.11.
Benefits of Indenture.    11
Section 1.12.
Governing Law.    11
Section 1.13.
Legal Holidays.    11
Section 1.14.
Waiver of Jury Trial.    11
ARTICLE II THE SECURITIES
11
Section 2.1.
Amount Unlimited; Issuable in Series.    11
Section 2.2.
Denominations.    14
Section 2.3.
Execution, Authentication, Delivery and Dating.    14
Section 2.4.
Temporary Securities.    16
Section 2.5.
Registration; Transfer and Exchange.    17
Section 2.6.
Mutilated, Destroyed, Lost and Stolen Securities.    19
Section 2.7.
Payment of Interest; Interest Rights Preserved.    20
Section 2.8.
Persons Deemed Owners.    21
Section 2.9.
Cancellation.    21
Section 2.10.
Computation of Interest.    21
Section 2.11.
CUSIP Numbers.    22
ARTICLE III REDEMPTION OF SECURITIES
22
Section 3.1.
Applicability of Article.    22
Section 3.2.
Election to Redeem; Notice to Trustee.    22
Section 3.3.
Selection by Trustee of Securities to Be Redeemed.    22
Section 3.4.
Notice of Redemption.    23
Section 3.5.
Deposit of Redemption Price.    24
Section 3.6.
Securities Payable on Redemption Date.    24
Section 3.7.
Securities Redeemed in Part.    24
ARTICLE IV SINKING FUNDS
25




Section 4.1.
Applicability of Article.    25
Section 4.2.
Satisfaction of Sinking Fund Payments with Securities.    25
Section 4.3.
Redemption of Securities for Sinking Fund.    25
ARTICLE V COVENANTS
26
Section 5.1.
Payment of Principal, Premium and Interest.    26
Section 5.2.
Maintenance of Office or Agency.    26
Section 5.3.
Money for Securities Payments to Be Held in Trust.    27
Section 5.4.
Corporate Existence.    28
Section 5.5.
Annual Statement by Officer as to Default.    28
ARTICLE VI CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
28
Section 6.1.
Company May Consolidate, Etc., Only on Certain Terms    28
Section 6.2.
Successor Substituted.    29
ARTICLE VII REMEDIES
29
Section 7.1.
Events of Default.    29
Section 7.2.
Acceleration of Maturity; Rescission and Annulment.    30
Section 7.3.
Collection of Indebtedness and Suits for Enforcement by Trustee.    32
Section 7.4.
Trustee May File Proofs of Claim.    33
Section 7.5.
Trustee May Enforce Claims Without Possession of Securities.    33
Section 7.6.
Application of Money Collected.    34
Section 7.7.
Limitation on Suits.    34
Section 7.8.
Unconditional Right of Holders to Receive Principal, Premium
and Interest.    35
Section 7.9.
Restoration of Rights and Remedies.    35
Section 7.10.
Rights and Remedies Cumulative.    35
Section 7.11.
Delay or Omission Not Waiver.    35
Section 7.12.
Control by Holders.    36
Section 7.13.
Waiver of Past Defaults.    36
Section 7.14.
Undertaking for Costs.    37
Section 7.15.
Waiver of Usury, Stay or Extension Laws.    37
ARTICLE VIII THE TRUSTEE
37
Section 8.1.
Certain Duties and Responsibilities.    37
Section 8.2.
Notice of Defaults.    38
Section 8.3.
Certain Rights of Trustee.    39
Section 8.4.
Not Responsible for Recitals or Issuance of Securities.    40
Section 8.5.
May Hold Securities.    41
Section 8.6.
Money Held in Trust.    41
Section 8.7.
Compensation and Reimbursement.    41
Section 8.8.
Disqualification; Conflicting Interests.    42
Section 8.9.
Corporate Trustee Required; Eligibility.    42
Section 8.10.
Resignation and Removal; Appointment of Successor.    43
Section 8.11.
Acceptance of Appointment by Successor.    44




Section 8.12.
Merger, Conversion, Consolidation or Succession to Business.    45
Section 8.13.
Preferential Collection of Claims.    46
Section 8.14.
Appointment of Authenticating Agent.    46
Section 8.15.
Consequential Damages.    47
ARTICLE IX HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
48
Section 9.1.
Company to Furnish Trustee Names and Addresses of Holders.    48
Section 9.2.
Preservation of Information; Communications to Holders.    48
Section 9.3.
Reports by Trustee.    48
Section 9.4.
Reports by Company.    49
ARTICLE X SUPPLEMENTAL INDENTURES
49
Section 10.1.
Supplemental Indentures Without Consent of Holders.    49
Section 10.2.
Supplemental Indentures with Consent of Holders.    51
Section 10.3.
Execution of Supplemental Indentures.    52
Section 10.4.
Effect of Supplemental Indentures.    52
Section 10.5.
Conformity with Trust Indenture Act.    52
Section 10.6.
Reference in Securities to Supplemental Indentures.    52
ARTICLE XI SATISFACTION AND DISCHARGE; DEFEASANCE
53
Section 11.1.
Satisfaction and Discharge of Indenture.    53
Section 11.2.
Company’s Option to Effect Defeasance or Covenant Defeasance.    54
Section 11.3.
Defeasance and Discharge.    54
Section 11.4.
Covenant Defeasance.    55
Section 11.5.
Conditions to Defeasance or Covenant Defeasance.    55
Section 11.6.
Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.    57





INDENTURE, dated as of [ ], between LPL Holdings, Inc., a Massachusetts corporation (the “ Company ”), and [ ], a [ ], as trustee (the “ Trustee ”).
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (herein called the “ Securities ,” each being a “ Security ”), to be issued in one or more series as in this Indenture provided.
NOW, THEREFORE, for and in consideration of the premises and the purchase of the Securities by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1.      Definitions .
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1)      the terms defined in this Article I have the respective meanings assigned to them in this Article I and include the plural as well as the singular;
(2)      all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the respective meanings assigned to them therein;
(3)      all accounting terms not otherwise defined herein have the respective meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “ generally accepted accounting principles ” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation;
(4)      the words “ herein ”, “ hereof ” and “ hereunder ” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5)      any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture unless otherwise expressly indicated.
Act ” has the meaning specified in Section 1.4(a) .

1



Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For the purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.
Authenticating Agent ” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors ” means the board of directors of the Company or any duly authorized committee of such board.
Board Resolution ” means a copy of a resolution certified by an Officer of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York or the city in which the Place of Payment is located are authorized or obligated by law or executive order to close or be closed.
Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
Company ” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become permitted as the Company’s successor pursuant to the applicable provisions of this Indenture, and thereafter “ Company ” shall mean such successor Person.
Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company by any Officer.
Corporate Trust Office ” means the office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date hereof for purposes of payment only is located at [ ], or such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Company).
Corporation ”, when used in Article VIII , includes corporations, associations, companies (including limited liability companies), limited and general partnerships and business trusts.
Covenant Defeasance ” has the meaning specified in Section 11.4 .

2



Default ”, when used in Section 5.5, Section 8.2 and Section 8.3 , means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Defaulted Interest ” has the meaning specified in Section 2.7(b) .
Defeasance ” has the meaning specified in Section 11.3 .
Depository ” means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depository for such series by the Company pursuant to Section 2.1(b)(17) , which Person shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, “Depository” as used with respect to the Securities of any series shall mean the Depository with respect to the Securities of such series.
Event of Default ” has the meaning specified in Section 7.1 .
Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.
Global Security ” or “ Global Securities ” means a Security or Securities, as the case may be, evidencing all or part of a series of Securities, issued to the Depository for such series or its nominee, and registered in the name of such Depository or nominee.
Holder ” or “ Holder of Securities ” means a Person in whose name a Security is registered in the Security Register.
Indenture ” means this indenture agreement as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 2.1 .
interest ”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date ”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
Market Exchange Rate ” has the meaning specified in Section 1.4(f) .
Maturity ”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default ” has the meaning specified in Section 7.1 .

3



Officer ” shall mean any of the Chairman of the Board of Directors, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Treasurer, any Vice President, the Assistant Treasurer, the Secretary or the General Counsel of the Company.
Officer’s Certificate ” means a certificate signed by any Officer. An Officer’s Certificate provided pursuant to Section 5.5 shall be signed by a principal executive, financial, legal or accounting Officer of the Company.
Opinion of Counsel ” means a written opinion of counsel, who may be counsel for the Company (including an employee or officer of the Company or any of its Affiliates) and who shall be reasonably acceptable to the Trustee.
Original Issue Discount Security ” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.2 .
Outstanding ”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i)      Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii)      Securities for whose payment or redemption money (or in the case of payment by Defeasance under Section 11.3 , money, U.S. Government Obligations or both) in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust, or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent), for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made and provided , further , in the case of payment by Defeasance under Section 11.3 , that all conditions precedent to the application of such Section shall have been satisfied; and
(iii)      Securities which have been paid pursuant to Section 2.6(c) or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 7.2 , and (ii) Securities owned by the Company or any other obligor upon the

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Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s independent right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent ” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company. The Company may act as Paying Agent with respect to any Securities issued hereunder.
Person ” means any individual, corporation, partnership, limited liability company, business trust, association, joint-stock company, joint venture, trust, incorporated or unincorporated organization or government or any agency or political subdivision thereof.
Place of Payment ”, when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 2.1 or, if not so specified, the City of New York, New York.
Predecessor Securities ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Record Date ” means a Regular Record Date or a Special Record Date, as applicable.
Redemption Date ”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price ”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
Regular Record Date ” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 2.1 .
Responsible Officer ”, when used with respect to the Trustee, means any officer in the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such other officer’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

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Securities ” and “ Security ” have the respective meanings stated in the recital of this Indenture and more particularly mean any Securities and/or Security of any series authenticated and delivered under this Indenture.
Security Register ” and “ Security Registrar ” have the respective meanings specified in Section 2.5(a) .
Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.7(b) .
Stated Maturity ”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary ” of any Person at any time shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (b) any limited liability company, partnership, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.
Trust Indenture Act ” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 10.5 and, to the extent required by any amendment thereto, the Trust Indenture Act of 1939, as amended from time to time.
Trustee ” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have assumed such role pursuant to the applicable provisions of this Indenture, and thereafter “ Trustee ” shall mean or include each Person who is then a Trustee hereunder and, if at any time there is more than one such Person, “ Trustee ” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Government Obligation ” has the meaning set forth in Section 11.5(a) .
Section 1.2.      Compliance Certificates and Opinions .
(a)      Upon any application or request by the Company to the Trustee (other than with respect to routine operations of the Trustee) to take any action under any provision of this Indenture, upon request of the Trustee, the Company shall furnish to the Trustee (i) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents

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is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
(b)      Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than certificates provided pursuant to Section 5.5 ) shall include:
(1)      a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2)      a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3)      a statement that, in the opinion of such individual, such individual has made such examination or investigation as such individual deemed reasonably necessary to enable such individual to express an opinion as to whether or not such covenant or condition has been complied with; and
(4)      a statement as to whether, in the opinion of such individual (based on the examination or investigation described in clause (3) above), such condition or covenant has been complied with.
Section 1.3.      Form of Documents Delivered to Trustee .
(a)      In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or more documents.
(b)      Any certificate or opinion of any officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion or any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
(c)      Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

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Section 1.4.      Acts of Holders .
(a)      Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to the Company copies of any such instrument or instruments delivered to the Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 8.1 ) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b)      The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c)      The ownership of Securities shall be proved by the Security Register.
(d)      Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company in reliance thereon, whether or not notation of such action is made upon such Security or such other Security.
(e)      The Depository selected pursuant to subsection (b)(17) of Section 2.1 , as a Holder, may appoint agents and/or otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take hereunder.
(f)      Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.1 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any series which are denominated in a currency other than U.S. dollars, then the principal amount of Securities of such series which shall be deemed to be outstanding for the purpose of taking such action shall be that amount of U.S. dollars that could

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be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 1.4(f), “ Market Exchange Rate ” shall mean the noon U.S. dollar buying rate in the City of New York for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more major banks in the City of New York or in the country of issue of the currency in question or such other quotations as the Company shall deem appropriate and direct the Trustee to use pursuant to a Company Order. The provisions of this Section 1.4(f) shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in currency other than U.S. dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture. All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in this Section 1.4(f) shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Holders.
Section 1.5.      Notices, Etc., to Trustee or Company .
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made, given or furnished to, or filed with,
(1)      the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including by facsimile and electronic mail actually received) to or with the Trustee at its Corporate Trust Office or sent by facsimile, electronic transmission or first-class mail, postage prepaid at the address set forth below:
[ ]
(2)      the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (including by facsimile and electronic mail actually received) to or with the Company by facsimile, electronic transmission or first-class mail, postage prepaid at the address set forth below:
[ ]
The Company and the Trustee may designate additional or different addresses for subsequent notices or communication. Notices given by first-class, postage prepaid, will be deemed given five calendar days after mailing.

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Section 1.6.      Notice to Holders; Waiver .
Where this Indenture provides for notice to Holders (including any notice of redemption), such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing (including facsimile or other electronic transmission) and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security Register or if given to the applicable Depository (or its designee) according to the applicable procedures of such Depository. If such notice or communication is mailed (or delivered by electronic transmission in accordance with the applicable procedures of the Depository) in the manner provided above within the time prescribed herein, it is duly given, whether or not the addressee receives it. In any case where notice to Holders is given, neither the failure to send such notice, nor any defect in any notice so sent, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Notices given by first-class mail, postage prepaid, will be deemed given five calendar days after mailing.
Section 1.7.      Conflict with Trust Indenture Act .
If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. If any provision hereof limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act, such imposed duties shall control. If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Indenture, such provision of the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as such provision of the Trust Indenture Act is so modified or excluded, as the case may be.
Section 1.8.      Effect of Headings and Table of Contents .
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.9.      Successors and Assigns .
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

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Section 1.10.      Separability Clause .
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11.      Benefits of Indenture .
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12.      Governing Law .
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 1.13.      Legal Holidays .
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided that no interest shall accrue on the amount then payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.14.      Waiver of Jury Trial .
EACH OF THE COMPANY AND THE TRUSTEE HEREBY, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE II     

THE SECURITIES
Section 2.1.      Amount Unlimited; Issuable in Series .
(a)      The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

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(b)      The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and (subject to Section 2.3 ) set forth or determined as provided in an Officer’s Certificate, or established in one or more indentures supplemental hereto (with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and with such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Officer executing such Securities, as evidenced by his or her execution of such Securities), prior to the issuance of Securities of any series:
(1)      the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2)      the ranking of the Securities of the series relative to other indebtedness of the Company and the terms of any subordination provisions;
(3)      if the Securities are to be convertible into or exchangeable for any securities or property of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes to this Indenture, if any, to permit or facilitate such conversion or exchange;
(4)      any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.4 , 2.5 , 2.6 , 3.7 or 10.6 and except for any Securities which, pursuant to Section 2.3 , are deemed never to have been authenticated and delivered hereunder);
(5)      the Person to whom any interest on a Security of the series shall be payable, if other than (i) the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest or (ii) in the case of interest payable on the Stated Maturity of such Security or on any Redemption Date (in each case, whether or not an Interest Payment Date), the Person to whom principal of such Security is payable;
(6)      the date or dates on which the principal of the Securities of the series is payable and/or the method by which such date or dates shall be determined;
(7)      the rate or rates (or method for establishing the rate or rates) at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date (or method for establishing such date or dates);
(8)      the place or places where the principal of (and premium, if any) and interest on Securities of the series shall be payable;

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(9)      the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(10)      the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(11)      if other than denominations of $2,000 and any integral multiple of $1,000 thereof, the denominations in which Securities of the series shall be issuable;
(12)      if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.2 or the method by which such portion shall be determined;
(13)      if other than the currency of the United States of America, the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any) and/or interest on the Securities of the series shall be payable;
(14)      if the principal of (and premium, if any) and/or interest on the Securities of the series are to be payable, at the election of the Company or any Holder, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(15)      if the amounts of payments of principal of (and premium, if any) and/or interest on the Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(16)      in the case of Securities of a series the terms of which are not established pursuant to subsection (13) , (14) or (15) above, whether either or both of Section 11.3 or Section 11.4 shall not be applicable to the Securities of such series; or, in the case of Securities the terms of which are established pursuant to subsection (13) , (14) or (15) above, the adoption and applicability, if any, to such Securities of any terms and conditions similar to those contained in Section 11.3 and/or Section 11.4 ;
(17)      whether the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the Depository for such Global Security or Global Securities;
(18)      any additional or different events of default that apply to Securities of the series, and any change in the right of the Trustee or the Holders of such Securities to declare the principal thereof due and payable;

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(19)      any additional or different covenants that apply to Securities of the series;
(20)      the form of the Securities of the series; and
(21)      any other terms of the Securities of such series (which terms shall not contradict the provisions of the Trust Indenture Act, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).
(c)      The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officer executing such Securities, as evidenced by his or her execution of such Securities.
(d)      All Securities of any one series need not be issued at the same time and may be issued from time to time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series; provided, however, that if such additional Securities are not fungible with the Securities of such series for U.S. federal income tax purposes, the additional Securities will have a separate CUSIP number.
(e)      If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an Officer of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series. With respect to Securities of a series constituting a medium term note program, such Board Resolution may provide general terms or parameters for Securities of such series and may provide that the specific terms of particular Securities of such series, and the Persons authorized to determine such terms or parameters, may be determined in accordance with or pursuant to the Company Order referred to in Section 2.3 .
(f)      Any Securities held by a Depository or its nominee or cleared through a Depository shall be subject to such Depository’s rules and procedures.
Section 2.2.      Denominations .
The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 2.1 . In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 thereof.
Section 2.3.      Execution, Authentication, Delivery and Dating .
(a)      The Securities shall be executed on behalf of the Company by any Officer. The signature of any Officer on the Securities may be manual or facsimile.
(b)      Securities bearing the manual or facsimile signatures of any individual who was at any time an Officer of the Company shall bind the Company, notwithstanding that any such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of such Securities.

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(c)      At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed on behalf of the Company pursuant to clause (a) above to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided that, with respect to Securities of a series constituting a medium term note program, the Trustee shall authenticate and deliver Securities of such series for original issue from time to time in the aggregate principal amount established for such series as may be specified from time to time by a Company Order and pursuant to such procedures acceptable to the Trustee. The maturity dates, original issue dates, interest rates and any other terms of the Securities of such series shall be determined by or pursuant to such Company Order and procedures.
(d)      The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within‑mentioned Indenture.
[ ],
as Trustee
By_________________________________
Authorized Signatory
Date: __________
(e)      If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Section 2.1 , in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Section 8.1 ) shall be fully protected in relying upon, an Opinion of Counsel stating:
(1)      if the form of any of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 2.1 , that such form has been established in conformity with the provisions of this Indenture; and
(2)      that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(f)      Notwithstanding that such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this

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Indenture would adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(g)      Notwithstanding the provisions of Section 2.1 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 2.1 or the Company Order and Opinion of Counsel otherwise required pursuant to this Section 2.3 at or prior to the time of authentication of each Security of such series if such documents have been delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued.
(h)      With respect to Securities of a series constituting a medium term note program, if the form and general terms of the Securities of such series have been established by or pursuant to one or more Board Resolutions or by an indenture supplemental hereto, as permitted by Section 2.1 in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Section 8.1 ) shall be fully protected in relying upon, in addition to the foregoing documents and (if applicable) in lieu of clause (e) above, an Opinion of Counsel stating that the Securities have been duly authorized and executed by the Company, and assuming the due authentication by the Trustee in the manner provided for in this Indenture, when delivered against payment of the consideration therefor in accordance with any applicable distribution agreement, the Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and similar laws affecting the rights and remedies of creditors generally and to general equity principles.
(i)      Each Security shall be dated the date of its authentication.
(j)      No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.9 together with a written statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.4.      Temporary Securities .
(a)      Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order, the Trustee shall authenticate and deliver, temporary

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Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, with such appropriate insertions, omissions, substitutions and other variations as the Officer executing such Securities may determine, as evidenced by his or her execution of such Securities.
(b)      If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor, of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 2.5.      Registration; Transfer and Exchange .
(a)      The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “ Security Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “ Security Registrar ” for the purpose of registering Securities and transfers of Securities as herein provided.
(b)      Upon surrender for registration of transfer of any Security of any series at an office or agency of the Company in a Place of Payment designated by the Company pursuant to Section 5.2 for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
(c)      At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
(d)      All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

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(e)      Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer, in form as set forth in the applicable Security or as otherwise satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or such Holder’s attorney duly authorized in writing.
(f)      No service charge shall be made for any registration of transfer or for exchange of Securities, but the Company, the Trustee or the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.4 , 2.5(h) , 3.7 or 10.6 not involving any transfer.
(g)      The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the sending of a notice of redemption of Securities of that series selected for redemption under Section 3.3 and ending at the close of business on the day of such transmission, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h)      Notwithstanding the foregoing, any Global Security shall be exchangeable pursuant to this Section 2.5 for Securities registered in the names of Persons other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or such Depository ceases to be a clearing agency registered under the Exchange Act and the Company has not appointed a successor Depository within 120 days from the date of such notice or from the date the Company becomes aware that such Depository is no longer registered, as applicable, (ii) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so exchangeable or (iii) there shall have occurred and be continuing an Event of Default which results in action by the Trustee pursuant to Article VII hereof. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
(i)      Notwithstanding any other provision in this Indenture, but subject to exchanges under clause (h) above, a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository.
(j)      The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among the Depository or other beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements

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hereof. Neither the Trustee, nor any of it respective agents, shall have responsibility for any actions taken or not taken by a Depository.
(k)      The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in, the applicable Depository or other Person with respect to the accuracy of the records of a Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depository or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the applicable Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the applicable Depository with respect to its members, participants and any beneficial owners.
Section 2.6.      Mutilated, Destroyed, Lost and Stolen Securities .
(a)      If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.
(b)      If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security and/or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.
(c)      In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
(d)      Upon the issuance of any new Security under this Section, the Company or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and its counsel) connected therewith.
(e)      Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time

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enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
(f)      The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.7.      Payment of Interest; Interest Rights Preserved .
(a)      Unless otherwise provided as contemplated by Section 2.1 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; provided , however , that interest due on the Stated Maturity of such Security or on any Redemption Date (in each case, whether or not an Interest Payment Date) will be paid to the Person to whom principal of such Security is payable.
(b)      Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the Holder entitled to such interest by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1)      The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a special record date (the “ Special Record Date ”) for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such Special Record Date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent to each Holder of Securities of such series in accordance with Section 1.6 , not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so sent, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective

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Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2) .
(2)      The Company may elect to make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(c)      Subject to the foregoing provisions of this Section, each Security delivered under this Indenture, upon registration of transfer of or in exchange for or in lieu of any other Security, shall carry the rights to interest accrued and unpaid, and interest to accrue, which were carried by such other Security.
Section 2.8.      Persons Deemed Owners .
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee, including a Paying Agent, may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 2.7 ) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee, including a Paying Agent, shall be affected by notice to the contrary.
Section 2.9.      Cancellation .
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 2.10.      Computation of Interest .
Except as otherwise specified as contemplated by Section 2.1 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

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Section 2.11.      CUSIP Numbers .
The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the "CUSIP" numbers.
ARTICLE III     

REDEMPTION OF SECURITIES
Section 3.1.      Applicability of Article .
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 2.1 for Securities of any series) in accordance with this Article III .
Section 3.2.      Election to Redeem; Notice to Trustee .
In case of any redemption at the election of the Company of less than all the Securities of like tenor of any series, the Company shall, at least two Business Days prior to the date that the notice of redemption is required to be given or caused to be given to the Holders of such Securities pursuant to Section 3.4(a) (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.
Section 3.3.      Selection by Trustee of Securities to Be Redeemed .
(a)      If less than all the Securities of like tenor of any series are to be redeemed, the particular securities to be redeemed shall be selected by the Trustee from the Outstanding Securities of like tenor of such series not previously called for redemption, by lot or any other such method as the Trustee shall deem fair and appropriate (subject to the redemption procedures of the applicable Depository) and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than the minimum authorized denomination for such Securities.

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(b)      The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
(c)      For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 3.4.      Notice of Redemption .
(a)      Unless otherwise indicated for a particular series of Securities by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, a notice of redemption shall be given by first-class mail, postage prepaid, not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security Register.
Such notice of redemption shall state:
(1)      the Redemption Date,
(2)      the Redemption Price,
(3)      if less than all the Outstanding Securities of like tenor of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4)      in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5)      that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after such date,
(6)      the CUSIP number and/or similar numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities),
(7)      the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(8)      that the redemption is for a sinking fund, if such is the case.
In addition, if such redemption is subject to satisfaction of one or more conditions precedent, as permitted by the Board Resolution, supplemental indenture or Officer’s

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Certificate establishing such series of Securities, such notice shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date as so delayed.
(b)      Any such notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
Section 3.5.      Deposit of Redemption Price .
By 11:00 a.m. New York time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company shall segregate and hold in trust as provided in Section 5.3 ) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Securities which are to be redeemed on that date.
Section 3.6.      Securities Payable on Redemption Date .
(a)      Subject to the final sentence of Section 3.4(a) , notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and, from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to (but excluding) the Redemption Date; provided , however , that installments of interest whose Stated Maturity is prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates, and installments of interest whose Stated Maturity is on the Redemption Date shall be payable to the Holders of such Securities to whom the principal shall be payable, in each case, according to their terms and the provisions of Section 2.7 .
(b)      If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 3.7.      Securities Redeemed in Part .
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing). The Company shall

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execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. It is understood that, notwithstanding anything in this Indenture to the contrary, only a Company Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Security or Securities.
ARTICLE IV     

SINKING FUNDS
Section 4.1.      Applicability of Article .
(a)      The provisions of this Article IV shall be applicable to any sinking fund for the retirement of Securities of a series permitted or required by the applicable supplemental indenture except as otherwise specified in accordance with Section 2.1 for Securities of such series.
(b)      The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “ mandatory sinking fund payment ”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “ optional sinking fund payment ”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 4.2 . Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 4.2.      Satisfaction of Sinking Fund Payments with Securities .
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 4.3.      Redemption of Securities for Sinking Fund .
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment

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for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 4.2 and will also deliver to the Trustee any such Securities. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.3 and cause notice of the redemption, prepared by the Company, thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.4 . Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.6 and 3.7 .
ARTICLE V     

COVENANTS
Section 5.1.      Payment of Principal, Premium and Interest .
(a)      The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
(b)      An installment of principal or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay such installment and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture or otherwise.
Section 5.2.      Maintenance of Office or Agency .
(a)      The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b)      The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

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Section 5.3.      Money for Securities Payments to Be Held in Trust .
(a)      If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities of that series, hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its failure so to act.
(b)      Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, by 11:00 a.m., New York time, on each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
(c)      The Company will cause each Paying Agent for any series of Securities other than the Trustee or the Company to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1)      hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2)      give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series; and
(3)      at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
(d)      The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent. Upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
(e)      Any money deposited with the Trustee or any Paying Agent, or then held by the Company in trust, for the payment of the principal of (and premium, if any) or interest on any Security of any series, and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company

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Request or (if then held by the Company) shall be discharged from such trust. Thereafter the Holder of such Security shall, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 5.4.      Corporate Existence .
Subject to Article VI , the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 5.5.      Annual Statement by Officer as to Default .
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate stating whether or not to the knowledge of the signer thereof the Company was in Default in the performance and observance of any of the terms, provisions and conditions applicable to the Company during such fiscal year and, if the Company was in Default, specifying all such Defaults and the nature and status thereof of which he or she may have knowledge. If any Default or Event of Default under clauses (4) , (5) , (6) or (7) of Section 7.1 has occurred and is continuing, within 30 Business Days after its becoming aware of such occurrence, the Company shall deliver to the Trustee an Officer’s Certificate specifying such event and what action the Company is taking or proposes to take with respect thereto.
ARTICLE VI     

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 6.1.      Company May Consolidate, Etc., Only on Certain Terms ..
The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, another Person (in a transaction in which the Company is not the surviving entity) unless (1) the resulting, surviving or transferee Person (in a transaction in which the Company is not the surviving entity) is an entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and such Person expressly assumes by supplemental indenture all of the Company’s obligations under the Securities and this Indenture; and (2) immediately after giving effect to such transaction, no Event of Default has occurred and is continuing under this Indenture. Upon any such consolidation, merger or transfer, the resulting, surviving or transferee Person (in a transaction in which the Company is not the surviving entity) shall succeed to, and may exercise every right and power of, the Company under this Indenture.
This Section 6.1 shall not apply to any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets, between or among the Company and its Subsidiaries.

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Section 6.2.      Successor Substituted .
Upon any consolidation by the Company with or merger by the Company into any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company, the successor formed by such consolidation or into which the Company is merged or the Person to which such conveyance, transfer or lease 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, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE VII     

REMEDIES
Section 7.1.      Events of Default .
Event of Default ”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1)      default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2)      default in the payment of the principal of any Security of that series at its Maturity; or
(3)      default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or
(4)      default in the performance, or breach, of any covenant of the Company in this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Securities other than the series in respect of which the Event of Default is being determined), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “ Notice of Default ” hereunder; or
(5)      the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any

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applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6)      the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7)      any other Event of Default provided with respect to Securities of that series.
Subject to the provisions of Section 8.3(i) , the Trustee shall not be deemed to have knowledge of an Event of Default hereunder (except for those described in paragraphs (1) through (3) above) unless a Responsible Officer of the Trustee has received written notice thereof.
Section 7.2.      Acceleration of Maturity; Rescission and Annulment .
(a)      If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in clause (5) or (6) of Section 7.1 ) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in clause (5)  or (6)  of Section 7.1 occurs, the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Outstanding

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Securities of that series shall be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of any Security of that series.
(b)      At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as provided in this Article VII , the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1)      the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A)      all overdue interest on all Securities of that series,
(B)      the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities,
(C)      to the extent that payment of such interest is lawful, interest upon overdue principal (and premium, if any) and overdue interest at the rate or rates prescribed therefor in such Securities, and
(D)      all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel to the extent required to be paid under Section 8.7 ; and
(2)      all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 7.13 .
(c)      No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d)      Upon receipt by the Trustee of any declaration of acceleration, or rescission and annulment thereof, with respect to Securities of a series all or part of which is represented by a Global Security, the Trustee shall establish a record date for determining Holders of Outstanding Securities of such series entitled to join in such declaration of acceleration, or rescission and annulment, as the case may be, which record date shall be the day the Trustee receives such declaration of acceleration, or rescission and annulment, as the case may be. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such declaration of acceleration, or rescission and annulment, as the case may be, whether or not such Holders remain Holders after such record date; provided that unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having been obtained prior to the day which is 90 days after such record date, such declaration of acceleration, or rescission and annulment, as the case may

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be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new declaration of acceleration, or rescission or annulment thereof, as the case may be, that is identical to a declaration of acceleration, or rescission or annulment thereof, which has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the proviso of this Section 7.2 .
Section 7.3.      Collection of Indebtedness and Suits for Enforcement by Trustee .
(a)      The Company covenants that if:
(1)      default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days; or
(2)      default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof; or
(3)      default is made in the deposit of any sinking fund payment, when and as due by the terms of a Security;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel to the extent required to be paid under Section 8.7 .
(b)      If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
(c)      If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

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Section 7.4.      Trustee May File Proofs of Claim .
(a)      In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal (and premium, if any) or interest), the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i)      to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts required to be paid to the Trustee under Section 8.7 of this Indenture) and of the Holders allowed in such judicial proceeding, and
(ii)      to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same.
(b)      Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts required to be paid to the Trustee under Section 8.7 .
(c)      Nothing herein contained shall be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
(d)      The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters it deems advisable.
Section 7.5.      Trustee May Enforce Claims Without Possession of Securities .
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel to the extent required to be paid under

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Section 8.7 , be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 7.6.      Application of Money Collected .
Any money collected by the Trustee pursuant to this Article VII shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.7 ;
SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
Section 7.7.      Limitation on Suits .
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1)      such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2)      the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3)      such Holder or Holders have offered to the Trustee indemnity and/or security satisfactory to the Trustee in its sole discretion against the costs, expenses and liabilities to be incurred in compliance with such request;
(4)      the Trustee for 60 days after its receipt of such notice, request and offer of security and/or indemnity has failed to institute any such proceeding; and
(5)      no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of any provision of this Indenture to affect, disturb or prejudice the

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rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 7.8.      Unconditional Right of Holders to Receive Principal, Premium and Interest .
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 2.7 ) interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 7.9.      Restoration of Rights and Remedies .
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 7.10.      Rights and Remedies Cumulative .
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.6 , no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 7.11.      Delay or Omission Not Waiver .
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VII or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

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Section 7.12.      Control by Holders .
(a)      The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that the Trustee may refuse to follow any direction that is in conflict with any rule of law or with this Indenture, subjects the Trustee to a risk of personal liability in respect of which the Trustee has not received indemnification or security satisfactory to it, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction; provided , however , that the Trustee may take any other action it deems proper that is not inconsistent with any such direction.
(b)      Upon receipt by the Trustee of any such direction with respect to Securities of a series all or part of which is represented by a Global Security, the record date for determining Holders of outstanding Securities of such series entitled to join in such direction shall be the day the Trustee receives such direction, or, if such receipt occurs after the close of business or on a day that is not a Business Day, the next succeeding Business Day, and the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such direction, whether or not such Holders remain Holders after such record date; provided that unless such majority in principal amount shall have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further action by any Holder be canceled and of no further effect. The Trustee may conclusively rely on any representation by the Holders delivering such direction that such Holders constitute the requisite percentage to deliver such direction. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new direction identical to a direction which has been canceled pursuant to the provisions to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 7.12 .
Section 7.13.      Waiver of Past Defaults .
(a)      The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(1)      in the payment of the principal of any Security of that series at its Maturity, or
(2)      in respect of a covenant or provision hereof which under Article X cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
(b)      Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

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Section 7.14.      Undertaking for Costs .
Each party to this Indenture agrees, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
Section 7.15.      Waiver of Usury, Stay or Extension 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 usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) 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 VIII     

THE TRUSTEE
Section 8.1.      Certain Duties and Responsibilities .
(a)      Except during the continuance of an Event of Default:
(1)      the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2)      in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the same to determine whether or not they conform to the requirements of this

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Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b)      In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c)      No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligence or willful misconduct, except that:
(1)      this subsection shall not be construed to limit the effect of subsection (a) of this Section;
(2)      the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3)      the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction, determined as provided in Section 7.12 , of the Holders of a majority in principal amount of the Outstanding Securities of any series, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4)      no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)      Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VIII .
(e)      The Trustee shall not be liable for interest on any money or assets received by it except as the Trustee may agree with the Company.
(f)      Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
Section 8.2.      Notice of Defaults .
Within 90 days after the Trustee has actual knowledge of an occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register,

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notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided , however , that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series.
Section 8.3.      Certain Rights of Trustee .
Subject to the provisions of Section 8.1 :
(a)      the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b)      any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, or as otherwise expressly provided herein, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution or as otherwise expressly provided herein;
(c)      whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, require and rely upon an Officer’s Certificate or Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate and/or Opinion of Counsel;
(d)      the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e)      the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture (including, without limitation, instituting, conducting or defending any litigation), unless such Holders shall have offered to the Trustee security and/or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f)      the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other document, but if notwithstanding the foregoing the Trustee makes or is directed to make such further inquiry or investigation into such facts or matters, it shall, upon at least three (3) Business

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Days’ prior notice or such lesser period of time as may be acceptable to the Company, be entitled reasonably to examine the books, records and premises of the Company, personally or by agent or attorney and, subject to Section 8.1(c) , shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g)      the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h)      the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made in this Indenture to a Default or Event of Default, such reference shall be construed to refer only to such Default or Event of Default for which the Trustee is deemed to have notice pursuant to this Section 8.3(i) ;
(i)      the permissive rights of the Trustee enumerated herein shall not be construed as duties of the Trustee;
(j)      the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k)      the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture; provided that the Trustee reasonably believes that the last such certificate received from the Company or currently on file is no longer accurate;
(l)      the Trustee shall not be required to give any note, bond or surety in respect of the execution of the trusts and powers under this Indenture; and
(m)      the Trustee shall have no obligation or duty to ensure compliance with the securities laws of any country or state except to (i) request such certificates or other documents required to be obtained by the Trustee or any Security Registrar hereunder in connection with any exchange or transfer pursuant to the terms hereof and (ii) file any documents required to be filed by an indenture trustee pursuant to the Trust Indenture Act or otherwise required in this Indenture.
Section 8.4.      Not Responsible for Recitals or Issuance of Securities .
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any

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Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 8.5.      May Hold Securities .
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 8.8 and 8.13 , may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 8.6.      Money Held in Trust .
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 8.7.      Compensation and Reimbursement .
(a)      The Company agrees:
(1)      to pay to the Trustee from time to time such compensation for its acceptance of this Indenture and for its services hereunder as Trustee, Paying Agent, Security Registrar and in all other capacities in which it is serving hereunder as the Company and the Trustee shall from time to time agree in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2)      except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable and documented out-of-pocket expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, bad faith or willful misconduct; and
(3)      to indemnify the Trustee and its agents, directors, employees and officers for, and to hold them harmless against, any loss, claim, damage, liability or reasonable out-of-pocket expense (including the reasonable compensation, expenses and disbursements of its agents and counsel) incurred without negligence, bad faith or willful misconduct on its or their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable and documented costs and out-of-pocket expenses of defending itself against any claim or liability in connection with the exercise or performance of any of the Trustee’s powers or duties hereunder.

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As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee in such capacity, except funds held in trust for the payment of principal of, premium, if any, or interest, if any, on particular Securities. If the Trustee incurs expenses or renders services after the occurrence and during the continuance of an Event of Default, the expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any applicable federal or state law for the relief of debtors. The provisions of this Section 8.7 shall survive the resignation or removal of the Trustee and the satisfaction, discharge and termination of this Indenture for any reason.
(b)    The Trustee shall notify the Company promptly of any third-party claim for which it may seek indemnity of which it has received written notice. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder unless, and solely to the extent that, such failure materially prejudices the Company’s defense of such claim. The Company shall defend the claim, with counsel reasonably satisfactory to the Trustee, and the Trustee shall provide reasonable cooperation at the Company’s expense in the defense; provided that if the defendants in any such claim include both the Company and the Trustee and the Trustee shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Company, or the Trustee has concluded that there may be any other actual or potential conflicting interests between the Company and the Trustee, the Trustee shall have the right to select separate counsel and the Company shall be required to pay the reasonable fees and expenses of such separate counsel. Any settlement which affects the Trustee may not be entered into without the written consent of the Trustee, unless the Trustee is given a full and unconditional release from liability with respect to the claims covered thereby and such settlement does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Trustee. After the Company has assumed the defense of a claim as set forth in this Section 8.7(b) , the Trustee may not settle or compromise any suit or action without the consent of the Company (not to be unreasonably withheld or delayed). In no event shall the Company be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Company has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 8.8.      Disqualification; Conflicting Interests .
The Trustee shall comply with the terms of Section 310(b) of the Trust Indenture Act.
Section 8.9.      Corporate Trustee Required; Eligibility .
There shall at all times be a Trustee hereunder which shall be eligible to act as such pursuant to the Trust Indenture Act and which shall be a Corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority. If such Corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of

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this Section, the combined capital and surplus of such Corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VIII .
Section 8.10.      Resignation and Removal; Appointment of Successor .
(a)      No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VIII shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 8.11 .
(b)      The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 8.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c)      The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d)      If at any time:
(1)      the Trustee shall fail to comply with Section 8.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2)      the Trustee shall cease to be eligible under Section 8.9 and shall fail to resign after written request therefor by the Company or any such Holder, or
(3)      the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to all Securities, or (ii) subject to Section 7.14 , any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e)      If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to

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the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 8.11 . If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 8.11 , become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 8.11 , any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f)      The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by sending notice of such event in accordance with Section 1.6 . Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its corporate trust office.
Section 8.11.      Acceptance of Appointment by Successor .
(a)      In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. On the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b)      In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities,

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shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. On request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c)      Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in clause (a) and (b) of this Section, as the case may be.
(d)      No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VIII .
(e)      Notwithstanding the replacement of the Trustee pursuant to Section 8.10 , the Company's obligations under Section 8.7 shall continue for the benefit of the retiring Trustee.
Section 8.12.      Merger, Conversion, Consolidation or Succession to Business .
Any Corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation or other entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided such Corporation or other entity shall be otherwise qualified and eligible under this Article VIII . In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

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Section 8.13.      Preferential Collection of Claims .
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 8.14.      Appointment of Authenticating Agent .
(a)      At any time when any of the Securities remain Outstanding, the Trustee may and, upon request of the Company, shall appoint an Authenticating Agent or Authenticating Agents with respect to one or more series of Securities, which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 2.6 ; provided that the Trustee’s appointment of such Authenticating Agent shall be subject to the Company’s approval at the time of and throughout such appointment. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a Corporation or other entity organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
(b)      Any Corporation or other entity into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Corporation or other entity resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation or other entity succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent; provided such Corporation or other entity shall be otherwise eligible under this Section.
(c)      An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the

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Company, and the Trustee shall terminate any such agency promptly upon request by the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may and, upon request of the Company, shall appoint a successor Authenticating Agent; provided that the Trustee’s appointment of such Authenticating Agent shall be subject to the Company’s approval at the time of and throughout such appointment, and the Trustee shall send notice of such appointment in accordance with Section 1.6 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
(d)      The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
(e)      If an appointment of an Authenticating Agent with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
[ ],
as Trustee
By_________________________________
As Authenticating Agent


Date: __________


Section 8.15.      Consequential Damages .
In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

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ARTICLE IX     

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 9.1.      Company to Furnish Trustee Names and Addresses of Holders .
If the Trustee is not the Security Registrar, the Company will furnish or cause to be furnished to the Trustee:
(a)      not later than 15 days after each Regular Record Date (or, if there is no Regular Record Date relating to a series, semi-annually on dates set forth in the Board Resolution or supplemental indenture with respect to such series), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such date, and
(b)      at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.
Section 9.2.      Preservation of Information; Communications to Holders .
(a)      The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 9.1 (if any) and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 9.1 upon receipt of a new list so furnished.
(b)      Holders of any series may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Holders of that series or any other series with respect to their rights under this Indenture or the Securities of that series or any other series. The Company, the Trustee, the Security Registrar and any other Person shall have the protection of Section 312(c) of the Trust Indenture Act.
Section 9.3.      Reports by Trustee .
(a)      Within 60 days after May 15 of each year, commencing the May 15 following the date of this Indenture, the Trustee shall, to the extent that any of the events described in Section 313(a) of the Trust Indenture Act occurred within the previous 12 months, but not otherwise, send to each Holder a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act. The Trustee also shall comply with Sections 313(a), 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b)      A copy of each report at the time of its transmission to Holders shall be sent to the Company and filed with the Commission and each securities exchange, if any, on which the Securities of that series are listed.

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(c)      The Company shall notify the Trustee if the Securities of any series become listed on any securities exchange or of any delisting thereof and the Trustee shall comply with Section 313(d) of the Trust Indenture Act.
Section 9.4.      Reports by Company .
(a)      The Company shall deliver to the Trustee, within fifteen days after the same is filed with the Commission, copies of the quarterly and annual reports and of the information, documents and other reports, if any, that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, and to the extent required by Section 1.7, the Company shall otherwise comply with the requirements of Section 314(a) of the Trust Indenture Act.  Any such report, information or document that the Company files with the Commission through the Commission’s EDGAR database (or any successor thereto) shall be deemed delivered to the Trustee for purposes of this Section 9.4(a) at the time of such filing through the EDGAR database (or successor thereto), without notice to the Trustee or any other action on the part of the Company.
(b)      Delivery of any information, documents and reports to the Trustee pursuant to clause (a) of this Section is for informational purposes only and the Trustee’s receipt of such items shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE X     

SUPPLEMENTAL INDENTURES
Section 10.1.      Supplemental Indentures Without Consent of Holders .
Without the consent of or notice to any Holders or any other party hereto, the Company and the Trustee (at the direction of the Company) at any time and from time to time, may enter into one or more indentures supplemental hereto for any of the following purposes:
(1)      to evidence the succession of another Person to the Company, or successive successions, and the assumption by any such successor of the covenants of the Company herein and in the Securities;
(2)      to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(3)      to add any additional Events of Default with respect to all or any series of Securities (and if such Events of Default are to be for the benefit of less than all series of

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Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
(4)      to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form;
(5)      to secure the Securities;
(6)      to add any guarantees with respect to the Securities;
(7)      to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
(8)      to make a change to the Securities of any series that does not adversely affect (as determined in good faith by the Company) the rights of any Holder of the Securities of such series;
(9)      to establish the form or terms of Securities of any series as permitted by Section 2.1 ;
(10)      to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11(b) ;
(11)      to cure any ambiguity or omission or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect (as determined in good faith by the Company);
(12)      to comply with any requirement of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(13)      to provide for the issuance of additional Securities of any series; or
(14)      to conform this Indenture or the Securities to the description thereof in the related prospectus, offering memorandum or disclosure document.

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Section 10.2.      Supplemental Indentures with Consent of Holders .
(a)      With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series so affected by such supplemental indenture, by Act of such Holders delivered to the Company and the Trustee, the Company and the Trustee (at the direction of the Company) may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of the Securities of such series or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture. Without the consent of the Holder of each Outstanding Security directly and adversely affected thereby, a supplemental indenture under this Section 10.2 shall not (with respect to any Outstanding Security held by a non-consenting Holder):
(1)      change the Stated Maturity of, the principal of, or any installment of principal of or interest on, such Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.2 , or change the currency in which such Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date),
(2)      reduce the percentage in principal amount of the Outstanding Securities of the series for such Outstanding Security, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
(3)      modify any of the provisions of this Section or Section 7.13 , except to increase the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required under any such Section or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security directly affected thereby; provided , however , that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 8.11(b) and 10.1(8) .
(b)      A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

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(c)      It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
(d)      The Company may set a record date for purposes of determining the identity of Holders of Securities entitled to consent pursuant to this Section. Such record date shall be the later of (i) thirty days prior to the first solicitation of such consent or (ii) the date of the most recent list of Holders furnished to the Trustee pursuant to Section 9.1 prior to such solicitation.
Section 10.3.      Execution of Supplemental Indentures .
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article X or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 8.1 ) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and complies with the provisions hereof (including Section 10.5 ). The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties, or immunities or liabilities under this Indenture or otherwise.
Section 10.4.      Effect of Supplemental Indentures .
Upon the execution of any supplemental indenture under this Article X , this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes. Every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 10.5.      Conformity with Trust Indenture Act .
Every supplemental indenture executed pursuant to this Article X shall conform to the requirements of the Trust Indenture Act, as then in effect.
Section 10.6.      Reference in Securities to Supplemental Indentures .
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article X may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company, and such Securities may be authenticated and delivered by the Trustee, in exchange for Outstanding Securities of such series.

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ARTICLE XI     

SATISFACTION AND DISCHARGE; DEFEASANCE
Section 11.1.      Satisfaction and Discharge of Indenture .
(a)      This Indenture shall upon Company Request cease to be of further effect with respect to Securities of any series (except as to any surviving rights of registration of transfer or exchange of Securities of such series and replacement of lost, stolen or mutilated Securities of such series herein expressly provided for), and the Trustee, on the demand of and at the expense of the Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture with respect to such series, when:
(1)      Either:
(A)      all Securities of such series theretofore authenticated and delivered have been delivered to the Trustee for cancellation (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.6 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 5.3 ); or
(B)      all such Securities of such series not theretofore delivered to the Trustee for cancellation:
(i)      have become due and payable, or
(ii)      will become due and payable at their Stated Maturity within one year, or
(iii)      are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company, in the case of clauses (i) , (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of establishing an amount sufficient to pay and discharge the entire indebtedness on such Securities of such series not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities of such series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; and
(2)      the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to Securities of such series; and

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(3)      the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for the satisfaction and discharge of this Indenture with respect to Securities of such series have been complied with.
(b)      At any time when no Securities of any series are outstanding, this Indenture shall upon Company Request cease to be of further effect and the Trustee, at the expense of the Company, shall execute instruments of satisfaction and discharge of this Indenture.
(c)      Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 8.7 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (a)(1) of this Section 11.1 , the obligations of the Trustee under Section 11.6 and Section 5.3(e) shall survive.
Section 11.2.      Company’s Option to Effect Defeasance or Covenant Defeasance .
Unless pursuant to Section 2.1 provision is made for either or both of (a) Defeasance of the Securities of another series under Section 11.3 not to be applicable with respect to the Securities of a particular series or (b) Covenant Defeasance of the Securities of another series under Section 11.4 not to be applicable with respect to the Securities of such particular series, then the provisions of such Sections, together with the other provisions of Sections 11.3 , 11.4 , 11.5 and 11.6 , shall be applicable to the Securities of such particular series, and the Company may at its option, at any time, with respect to the Securities of such particular series, elect to have either Section 11.3 or Section 11.4 be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below in Sections 11.3 , 11.4 , 11.5 and 11.6 .
Section 11.3.      Defeasance and Discharge .
Upon the Company’s exercise of the option set forth in Section 11.2 and satisfaction of the conditions to defeasance set forth in Section 11.5 , the Company shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth below are satisfied (each, a “ Defeasance ”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense and direction of the Company, shall execute instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 11.5 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 2.4 , 2.5 , 2.6 , 5.2 and 5.3 , (C) the rights, powers, trusts, duties, and immunities of the Trustee under Sections 2.4, 2.5, 2.6 , 2.7 , 2.8 , 2.9 , 5.3(e) , 8.7 and 11.6 and otherwise the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange and (D) Sections 11.3 , 11.4 , 11.5 and 11.6 . Subject to compliance with Sections 11.3 , 11.4 , 11.5 and 11.6 , the Company may exercise its option under

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this Section 11.3 notwithstanding the prior exercise of its option under Section 11.4 with respect to the Securities of such series.
Section 11.4.      Covenant Defeasance .
Upon the Company’s exercise of the option set forth in Section 11.2 and satisfaction of the conditions to defeasance set forth in Section 11.5 , the Company shall be released from its obligations under Sections 5.4 , 5.5 , 6.1 and 9.4 and any other covenants to be applicable to the Securities of a series as specified pursuant to Section 2.1 unless specified otherwise pursuant to such Section (and the failure to comply with any such provisions shall not constitute a default or Event of Default under Section 7.1 ), and the occurrence of any event described in Sections 7.1(4) and (7) and any other events of default to be applicable to the Securities of a series as specified pursuant to Section 2.1 unless specified otherwise pursuant to such Section shall not constitute a default or Event of Default hereunder, with respect to the Outstanding Securities of such series on and after the date the conditions set forth below are satisfied (a “ Covenant Defeasance ”). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section with respect to it, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 11.5.      Conditions to Defeasance or Covenant Defeasance .
The following shall be the conditions to application of either Section 11.3 or Section 11.4 to the Outstanding Securities of such series:
(a)      the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 8.9 who shall agree to comply with the provisions of this Article XI applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) on and each installment of principal of (premium, if any) and interest on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. For this purpose, “ U.S. Government Obligations ” means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is

55



unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended from time to time) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt;
(b)      no Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from borrowing of funds to be applied to such deposit, the grant of any lien securing such borrowing and the consummation of other transactions in connection therewith);
(c)      such Defeasance or Covenant Defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for purposes of the Trust Indenture Act with respect to any securities of the Company;
(d)      such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound (other than an Event of Default resulting from borrowing of funds to be applied to such deposit, the grant of any lien securing such borrowing and the consummation of other transactions in connection therewith);
(e)      such Defeasance or Covenant Defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Exchange Act to be delisted;
(f)      in the case of an election under Section 11.3 , the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Defeasance had not occurred;
(g)      in the case of an election under Section 11.4 , the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

56



(h)      such Defeasance or Covenant Defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 2.1 ; and
(i)      the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to either the Defeasance under Section 11.3 or the Covenant Defeasance under Section 11.4 , as the case may be, have been complied with.
Section 11.6.      Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions .
(a)      Subject to the provisions of Section 5.3(e) , all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively, for purposes of this Section 11.6 , the “ Trustee ”), pursuant to Section 11.1 or 11.5 , in respect of the Outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law.
(b)      The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.5 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
(c)      Anything in this Article XI to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 11.5 which, in the opinion of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance.
* * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
[ The remainder of this page intentionally left blank; signature pages follow .]

57



IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.
COMPANY:
LPL HOLDINGS, INC.
By:              
Name:    
Title:    


[Signature page to Indenture]





IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.
TRUSTEE:
[ ], as Trustee

By:              
Name:    
Title:    
    



[Signature page to Indenture]



Exhibit 5.1

EXHIBIT51OPINIONIMAGE1.JPG
ROPES & GRAY LLP
PRUDENTIAL TOWER
800 BOYLSTON STREET
BOSTON, MA 02199-3600
WWW.ROPESGRAY.COM


February 9, 2017
LPL Financial Holdings Inc.
LPL Holdings, Inc.
75 State Street
Boston, MA 02109
Re: Registration of Securities on Form S-3
Ladies and Gentlemen:
We have acted as counsel to LPL Financial Holdings Inc., a Delaware corporation (“ LPLFH ”), and LPL Holdings, Inc., a Massachusetts corporation (“ LPLH ” and together with LPLFH, the “ Companies ”), in connection with the registration statement on Form S-3 (the “ Registration Statement ”) filed on the date hereof by the Companies with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the registration under the Securities Act and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act of:
(i) shares of LPLFH’s common stock, $0.01 par value per share (the “ Common Stock ”); and
(ii) one or more series of debt securities of LPLH (the “ Debt Securities ”), which Debt Securities may include senior debt securities or subordinated debt securities issued under an indenture, including any supplemental indenture related thereto, and may or may not be convertible into or exchangeable for shares of the Common Stock, certain payments in respect of which will be guaranteed by LPLFH (the “ Guarantees ”).
The Common Stock, the Debt Securities and the Guarantees are referred to herein collectively as the “ Securities .”
In connection with this opinion letter, we have examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent verification, upon certificates of officers of the Companies, public officials and other appropriate persons.



LPL Financial Holdings Inc.
LPL Holdings, Inc.    - 2 -



The opinions expressed below are limited to the laws of the State of New York, the Delaware General Corporation Law and the Massachusetts Business Corporations Act.
Based upon and subject to the foregoing and the assumptions, qualifications and limitations set forth below, we are of the opinion that:
1.    When (i) the issuance and sale of any shares of Common Stock have been duly authorized by all necessary corporate action of LPLFH and (ii) such shares have been issued and delivered against payment of the purchase price therefor (in an amount in excess of the par value thereof) in accordance with the applicable purchase, underwriting or other agreement, and as contemplated by the Registration Statement, such shares of Common Stock will be validly issued, fully paid and nonassessable. The Common Stock covered in the opinion in this paragraph includes any shares of Common Stock that may be issued upon exercise, conversion or exchange pursuant to the terms of any other Securities.
2.    When (i) the terms of any Debt Securities and their issuance and sale have been duly authorized by all necessary corporate action of LPLH and (ii) such Debt Securities have been duly executed, authenticated and delivered against payment of the purchase price therefor in accordance with the applicable definitive purchase, underwriting or similar agreement, as contemplated by the Registration Statement, and in the manner provided for in the applicable indenture, such Debt Securities will constitute valid and binding obligations of LPLH enforceable against LPLH in accordance with their respective terms. The Debt Securities covered in the opinion in this paragraph include any Debt Securities that may be issued upon exercise, conversion or exchange pursuant to the terms of any other Securities.
3.    When (i) the issuance and terms of any Guarantee have been duly authorized by all necessary corporate action of LPLFH and (ii) such Guarantee has been duly executed and delivered in accordance with the applicable guarantee agreement, in accordance with the applicable purchase, underwriting or other agreement, and as contemplated by the Registration Agreement, such Guarantee will constitute a valid and binding obligation of LPLFH enforceable against LPLFH in accordance with its terms.
In rendering the opinions set forth above, we have assumed that (i) the Registration Statement will have become effective under the Securities Act, a prospectus supplement will have been prepared and filed with the Commission describing the Securities offered thereby and such Securities will have been issued and sold in accordance with the terms of such prospectus supplement; (ii) a definitive purchase, underwriting, or similar agreement, and any applicable indenture (including any supplemental indenture) or guarantee agreement, pursuant to which such Securities may be issued, will have been duly authorized, executed and delivered by the applicable Company and the other parties thereto, and the specific terms of such Securities will have been duly established in conformity with the applicable agreement and the certificate of incorporation and bylaws of the applicable Company (if applicable); (iii) at the time of the issuance of any Securities, the applicable Company will be a validly existing corporation under the law of its jurisdiction of incorporation; (iv) the number of shares of Common Stock issued pursuant to the Registration Statement, together with the number of shares outstanding or reserved at the time of issuance, will not exceed the number of shares authorized by LPLFH’s



LPL Financial Holdings Inc.
LPL Holdings, Inc.    - 3 -



certificate of incorporation in effect at the time of such issuance; and (v) all the foregoing actions to be taken by the applicable Company will have been taken so as not to violate any applicable law and so as to comply with any requirement or restriction imposed by any court or governmental or regulatory body having jurisdiction over the applicable Company or any of its property.
Our opinions set forth above are subject to (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and similar laws affecting the rights and remedies of creditors generally and (b) general principles of equity. Our opinions are also subject to the qualification that the enforceability of provisions in the applicable indenture (including any supplemental indenture) providing for indemnification or contribution, broadly worded waivers, waivers of rights to damages or defenses, waivers of unknown or future claims, and waivers of statutory, regulatory or constitutional rights may be limited on public policy or statutory grounds. In addition, we express no opinion with respect to the enforceability of (i) any fraudulent transfer savings clause or similar provision of any Guarantee which purports to limit the obligations of the Guarantor thereunder or the effect of the unenforceability of such provision on the enforceability of such Guarantee or (ii) rights to receive prepayment premiums or the unaccrued portion of original issue discount upon acceleration of any Debt Securities, in each case to the extent determined to be unreasonable or to constitute unmatured interest.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name therein and in the related prospectus under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Ropes & Gray LLP
Ropes & Gray LLP




Exhibit 12.1

COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES 
(Unaudited)


The following table presents the computation of our ratio of earnings to fixed charges for each of the periods indicated (in thousands, except ratio).
 
 
Nine Months Ended
 
Fiscal Year Ended
 
 
September 30, 2016
 
December 31, 2015
 
December 31, 2014
 
December 31, 2013
 
December 31, 2012
 
December 31, 2011
Earnings:
 
 
 
 
 
 
 
 
 
 
 
 
Income before provision for income taxes
 
$
232,572

 
$
282,556

 
$
294,697

 
$
291,303

 
$
250,591

 
$
282,685

Fixed charges
 
77,235

 
65,904

 
62,320

 
58,064

 
60,837

 
74,089

Amortization of capitalized interest
 
778

 
1,023

 
1,176

 
807

 
535

 
492

Interest capitalized
 
(908
)
 
129

 
(2,083
)
 
(1,316
)
 
(861
)
 
(953
)
Total earnings (losses)
 
$
309,677

 
$
349,612

 
$
356,110

 
$
348,858

 
$
311,102

 
$
356,313

Fixed charges:
 
 
 
 
 
 
 
 
 
 
 
 
Interest expensed and capitalized
 
$
66,713

 
$
53,965

 
$
48,315

 
$
47,236

 
$
49,974

 
$
63,262

Amortization of capitalized interest
 
4,318

 
3,405

 
3,973

 
4,365

 
4,591

 
5,091

Estimate of interest within rental expense
 
6,204

 
8,534

 
10,032

 
6,463

 
6,272

 
5,736

Total fixed charges
 
$
77,235

 
$
65,904

 
$
62,320

 
$
58,064

 
$
60,837

 
$
74,089

 
 
 
 
 
 
 
 
 
 
 
 
 
Ratio of earnings to fixed charges
 
4.01

 
5.30

 
5.71