THE ADT CORPORATION, THE NOTES GUARANTORS PARTY HERETO AND WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of May 2, 2016 TO INDENTURE Dated as of May 2, 2016

Exhibit 4.15

 

 

THE ADT CORPORATION,

THE NOTES GUARANTORS PARTY HERETO

AND

▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

FIRST SUPPLEMENTAL INDENTURE

Dated as of May 2, 2016

TO INDENTURE

Dated as of May 2, 2016

 

 

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TABLE OF CONTENTS

 

				Page
ARTICLE I DEFINITIONS					1
Section 1.1		Additional Defined Terms			1
ARTICLE II SECURED NOTES GUARANTEE					6
Section 2.1		Guaranty of Guaranteed Obligations			6
Section 2.2		Guaranty of Payment			6
Section 2.3		No Limitations			6
Section 2.4		Reinstatement			7
Section 2.5		Agreement To Pay; Subrogation			7
Section 2.6		Information			8
Section 2.7		Maximum Liability			8
Section 2.8		Termination and Release			8
Section 2.9		Additional Notes Guarantors			9
Section 2.10		Form of Guarantee			9
ARTICLE III COLLATERAL					10
Section 3.1		Security Documents			10
Section 3.2		First Lien Collateral Agent			10
Section 3.3		Actions to Be Taken			11
Section 3.4		Release of Collateral			12
Section 3.5		Powers Exercisable by Receiver or Trustee			14
Section 3.6		Release upon Termination of the Company’s Obligations			14
Section 3.7		General Authority of the First Lien Collateral Agent			14
Section 3.8		Further Assurances			15
ARTICLE IV ASSUMPTION OF OBLIGATIONS					15
ARTICLE V MISCELLANEOUS					15
Section 5.1		Effect of First Supplemental Indenture			15
Section 5.2		Definitions			15
Section 5.3		Confirmation of Indenture			15
Section 5.4		Concerning the Trustee			16
Section 5.5		Governing Law			16
Section 5.6		Separability			16
Section 5.7		Counterparts			16
Section 5.8		No Benefit			16
Section 5.9		Amendments and Supplemental Indentures			16
Section 5.10		Legal, Valid and Binding Obligation			16

 

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First Supplemental Indenture

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THIS FIRST SUPPLEMENTAL INDENTURE is dated as of May 2, 2016, among THE ADT CORPORATION, a Delaware corporation (the “Company”), the guarantors listed on Schedule I hereto (the “Notes Guarantors”) and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the “Trustee”).

RECITALS

A. Prime Security One MS, Inc. (“Merger Sub”) and the Trustee executed and delivered an Indenture, dated as of May 2, 2016 (the “Indenture”), to provide for the issuance by Merger Sub of $718,266,000 of 4.875% First-Priority Senior Secured Notes due 2032 (the “Secured Notes”).

B. This First Supplemental Indenture is being entered into in connection with the Acquisition (as defined below) of the Company by Prime Security Services Borrower, LLC, a Delaware limited liability company (“New Parent”). On February 14, 2016, the Company entered into an Agreement and Plan of Merger with, inter alia, New Parent and Merger Sub, pursuant to which Merger Sub was merged with and into the Company on the date hereof (the “Merger”), with the Company surviving the Merger as a Wholly Owned Subsidiary of New Parent.

C. The Company desires to enter into this First Supplemental Indenture pursuant to Section 10.01 of the Indenture to (i) provide guarantees to the Secured Notes, (ii) secure the Securities of the Secured Notes, (iii) provide for the express assumption by the Company of Merger Sub’s obligations under the Indenture pursuant to Section 11.01 of the Indenture, and (iv) make certain other changes permitted thereby.

E. The entry into this First Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture.

NOW, THEREFORE, for and in consideration of the foregoing premises, the Company, the Notes Guarantors and the Trustee mutually covenant and agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Additional Defined Terms. As used herein, the following defined terms shall have the following meanings:

“Acquisition” means the consummation of the Merger.

“Acquisition Closing Date” means the date on which the Acquisition is consummated.

“Additional First Lien Obligations” means all Other First Lien Obligations other than the Secured Notes Obligations.

 

First Supplemental Indenture

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“Authorized Representative” means (i) in the case of any First Lien Credit Facility Obligations or the holders of any First Lien Credit Facility Obligations, the First Lien Collateral Agent, (ii) in the case of the Secured Notes Obligations or the holders of the Secured Note Obligations, the Trustee, and (iii) in the case of any series of Additional First Lien Obligations or the holders of such series of Additional First Lien Obligations that become subject to the First Lien Intercreditor Agreement, the authorized representative (and successor thereto) named for such series in the applicable joinder agreement to the First Lien Intercreditor Agreement.

“Collateral” means “Collateral” as defined in the credit agreement under the First Lien Credit Facility. For the avoidance of doubt, Collateral with respect to the Secured Notes does not include Specified Excluded Collateral with respect to the Secured Notes.

“Collateral Agreement” means the Collateral Agreement (First Lien), dated as of July 1, 2015 (as amended, supplemented, modified, extended, renewed, restated, refunded or refinanced from time to time), among New Parent, each Subsidiary of New Parent from time to time identified therein as a party and the First Lien Collateral Agent.

“Consent and Acknowledgment” means the Consent and Acknowledgment substantially in the form of Exhibit A-1 to the First Lien/Second Lien Intercreditor Agreement, dated as of the Acquisition Closing Date, to be executed by the Trustee, as Authorized Representative for the Secured Notes Obligations and the holders of the Secured Notes Obligations, and acknowledged by New Parent, the First Lien Collateral Agent and the Second Lien Collateral Agent.

“Credit Facilities” means, collectively, the First Lien Credit Facility and the Second Lien Credit Facility.

“Excluded Subsidiary” means each Subsidiary of New Parent that would qualify as an “Excluded Subsidiary” (or any similar term) as defined in the Credit Facilities or any other indebtedness of New Parent from time to time.

“First Lien Collateral Agent” means Barclays Bank PLC, in its capacity as collateral agent for the lenders and other secured parties under the First Lien Credit Facility, the Secured Notes and the First Lien Security Documents, together with its successors and permitted assigns under the First Lien Security Documents exercising substantially the same rights and powers.

“First Lien Credit Facility” means the First Lien Credit Agreement, dated as of July 1, 2015, among Prime Security Services Holdings, LLC, New Parent, the lenders party thereto in their capacities as lenders thereunder and the First Lien Collateral Agent, as amended or restated on the Acquisition Closing Date, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof.

 

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First Supplemental Indenture

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“First Lien Credit Facility Obligations” means “Obligations” as defined in the First Lien Credit Facility as in effect as of the Acquisition Closing Date (or any comparable term as defined in the First Lien Credit Facility as in effect from time to time).

“First Lien Intercreditor Agreement” means the intercreditor agreement, substantially in the form of Exhibit H to the First Lien Credit Facility (as in effect on the Acquisition Closing Date), among the First Lien Collateral Agent, the Trustee and the other parties from time to time party thereto, to be entered into on the Acquisition Closing Date (as amended, supplemented, modified, extended, renewed, restated, refunded or refinanced from time to time).

“First Lien Obligations” means, collectively, (a) all First Lien Credit Facility Obligations, (b) all Secured Notes Obligations and (c) all Other First Lien Obligations.

“First Lien Security Documents” means the Security Documents and any other agreement, document or instrument pursuant to which a lien is granted or purported to be granted securing First Lien Obligations or under which rights or remedies with respect to such liens are governed, in each case to the extent relating to the collateral securing the First Lien Obligations.

“First Lien/Second Lien Intercreditor Agreement” means (i) the First Lien/Second Lien Intercreditor Agreement, dated as of July 1, 2015, among the First Lien Collateral Agent and Credit Suisse AG, Cayman Islands Branch, as Second Lien Facility Agent and Applicable Second Lien Agent (each, as defined therein) (as amended, supplemented, modified, extended, renewed, restated, refunded or refinanced from time to time), and (ii) any other First Lien/Second Lien Intercreditor Agreement that is not materially less favorable to the Holders of the Secured Notes than the First Lien/Second Lien Intercreditor Agreement referred to in clause (i), as determined by the Company in good faith (as amended, supplemented, modified, extended, renewed, restated, refunded or refinanced from time to time).

“First Priority After-Acquired Property” means, with respect to the Secured Notes, any property of the Company or any Notes Guarantor that secures any First Lien Credit Facility Obligations that is not already subject to the lien under the Security Documents, other than Specified Excluded Collateral with respect to the Secured Notes.

“First Priority Liens” means the first priority Liens securing the First Lien Obligations.

“Foreign Subsidiary” means a Restricted Secured Notes Subsidiary not organized or existing under the laws of the United States of America or any state or territory thereof or the District of Columbia and any direct or indirect subsidiary of such Restricted Secured Notes Subsidiary.

“Guaranteed Obligations” has the meaning set forth in Section 2.1 hereof.

“Indenture” has the meaning set forth in the Recitals.

 

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First Supplemental Indenture

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“Intercreditor Agreements” means, collectively, the First Lien/Second Lien Intercreditor Agreement and the First Lien Intercreditor Agreement.

“Merger” has the meaning set forth in the Recitals.

“Merger Sub” has the meaning set forth in the Recitals.

“New Parent” has the meaning set forth in the Recitals.

“Notes Guarantors” has the meaning assigned to such term in the introductory paragraph.

“Obligations” means any principal, interest (including any interest and other monetary obligations accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any indebtedness.

“Other First Lien Obligations” shall have the meaning given such term by the Collateral Agreement.

“Other First Lien Secured Party Consent” means the Other First Lien Secured Party Consent substantially in the form of Exhibit III to the Collateral Agreement, dated as of the Acquisition Closing Date, to be executed by the Trustee, as Authorized Representative for the Secured Notes Obligations and the holders of the Secured Notes Obligations, and acknowledged by the First Lien Collateral Agent and New Parent.

“Regulation S-X Excluded Collateral” has the meaning set forth in Section 3.4 hereof.

“Restricted Secured Notes Subsidiary” means, with respect to any Person, any Subsidiary of such Person other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated in this Indenture, all references to Restricted Secured Notes Subsidiaries shall mean Restricted Secured Notes Subsidiaries of the New Parent.

“Second Lien Collateral Agent” means Credit Suisse AG, Cayman Islands Branch, in its capacity as administrative agent and collateral agent for the lenders and other secured parties under the Second Lien Credit Facility, together with its successors and permitted assigns.

“Second Lien Credit Facility” means the credit agreement entered into as of July 1, 2015, by and among the New Parent, the subsidiary borrowers party thereto (including, upon consummation of the Acquisition, the Company and its subsidiaries), the lenders party thereto in their capacities as lenders thereunder and the Second Lien Collateral Agent, including

 

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any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof.

“Second Priority Senior Secured Notes due 2023” means the $3,140,000,000 of 9.25% Second Priority Senior Secured Notes due 2023 issued by New Parent and Prime Finance Inc. on May 2, 2016.

“Secured Notes” has the meaning set forth in the Recitals.

“Secured Notes Guarantee” means the guarantee set forth in Article II hereof.

“Secured Notes Obligations” means Obligations in respect of the Secured Notes, each Secured Notes Guarantee and the Security Documents.

“Secured Party” means, collectively, the Trustee and the Holders of the Secured Notes.

“Security Documents” means, collectively, the Intercreditor Agreements, the Collateral Agreement, the Other First Lien Secured Party Consent, other security agreements, pledge agreements and mortgages relating to the Collateral and instruments filed and recorded in appropriate jurisdictions to preserve and protect the liens on the Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states) applicable to the Collateral.

“Specified Excluded Collateral” shall have the meaning given such term by the Collateral Agreement. For the avoidance of doubt, Specified Excluded Collateral with respect to the Secured Notes includes the Regulation S-X Excluded Collateral and the Capital Stock of the New Parent.

“Unrestricted Subsidiary” means any Subsidiary of the New Parent that is designated as an “Unrestricted Subsidiary” (or any comparable term) under any other indebtedness of New Parent or any of its Subsidiaries.

“Wholly Owned Restricted Secured Notes Subsidiary” is any Wholly Owned Subsidiary that is a Restricted Secured Notes Subsidiary. Unless otherwise indicated in this Indenture, all references to Wholly Owned Restricted Secured Notes Subsidiaries shall mean Wholly Owned Restricted Secured Notes Subsidiaries of the New Parent.

“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares or shares required to be held by Foreign Subsidiaries) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.

 

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ARTICLE II

SECURED NOTES GUARANTEE

Section 2.1 Guaranty of Guaranteed Obligations. Each Notes Guarantor guarantees, as of the Acquisition Closing Date, to the Trustee, jointly and severally with the other Notes Guarantors, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Secured Notes Obligations (such guarantee obligations of the Notes Guarantors, the “Guaranteed Obligations”) for the benefit of the Secured Parties. Each Notes Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Guaranteed Obligation. Each Notes Guarantor waives presentment to, demand of payment from and protest to the Company of any of the Guaranteed Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment.

Section 2.2 Guaranty of Payment. Each Notes Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due (whether at stated maturity, by acceleration or otherwise) and not of collection, and waives any right to require that any resort be had by the Trustee or any other Secured Party to any security held for the payment of the Guaranteed Obligations or to any balance of any deposit account or credit on the books of the Trustee or any other Secured Party in favor of the Company or any other Person.

Section 2.3 No Limitations. Except for termination or release of a Notes Guarantor’s obligations hereunder as expressly provided for in Section 2.8 and Article III, the obligations of each Notes Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise (other than defense of payment or performance). Without limiting the generality of the foregoing, the obligations of each Notes Guarantor hereunder, to the fullest extent permitted by applicable law, shall not be discharged or impaired or otherwise affected by: (i) the failure of the Trustee or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of the Indenture or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, the Indenture or any other agreement, including with respect to any other Notes Guarantor under this Secured Notes Guarantee; (iii) the failure to perfect any security interest in, or the exchange, substitution, release or any impairment of, any security held by the Trustee or any other Secured Party for the Guaranteed Obligations; (iv) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; (v) any other act or omission that may or might in any manner or to any extent vary the risk of any Notes Guarantor or otherwise operate as a discharge of any Notes Guarantor as a matter of law or equity (other than the payment in full in cash in immediately available funds of all the Guaranteed Obligations); (vi) any illegality, lack of validity or enforceability of any Guaranteed Obligation; (vii) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any Guaranteed Obligation (other than the

 

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First Supplemental Indenture

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payment in full in cash in immediately available funds of all the Guaranteed Obligations); (viii) the existence of any claim, set-off or other rights that such Notes Guarantor may have at any time against the Company, the Trustee, or any other corporation or Person, whether in connection herewith or any unrelated transactions; provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim; and (ix) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Trustee that might otherwise constitute a defense to, or a legal or equitable discharge of, the Company or any other guarantor or surety (other than defense of payment or performance). Each Notes Guarantor expressly authorizes the Secured Parties (or the Trustee on behalf of the Secured Parties) to take and hold security for the payment and performance of the Guaranteed Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Guaranteed Obligations, all without affecting the obligations of any Notes Guarantor hereunder. To the fullest extent permitted by applicable law, each Notes Guarantor waives any defense based on or arising out of any defense of any other Notes Guarantor or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Notes Guarantor, other than the payment in full in cash in immediately available funds of all the Guaranteed Obligations. The Trustee and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with the Company or exercise any other right or remedy available to them against the Company, without affecting or impairing in any way the liability of any Notes Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full in cash in immediately available funds. To the fullest extent permitted by applicable law, each Notes Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Notes Guarantor against any other Notes Guarantor, as the case may be, or any security.

Section 2.4 Reinstatement. Notwithstanding the provisions of Section 2.8, each Notes Guarantor agrees that its Secured Notes Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored or returned by the Trustee or any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any substantial part of its property, or otherwise, all as though such payment had not been made.

Section 2.5 Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Trustee or any other Secured Party has at law or in equity against any Notes Guarantor by virtue hereof, upon the failure of the Company to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Notes Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Trustee for distribution to the applicable Secured Party in cash in immediately available funds the amount of such unpaid Guaranteed

 

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Obligation. Upon payment by any Notes Guarantor of any sums to the First Lien Collateral Agent as provided above, all rights of such Notes Guarantor against the Company arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Section 8.06 of the Indenture.

Section 2.6 Information. Each Notes Guarantor assumes all responsibility for being and keeping itself informed of the Company’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that such Notes Guarantor assumes and incurs hereunder, and agrees that neither the Trustee nor any other Secured Party will have any duty to advise such Notes Guarantor of information known to it or any of them regarding such circumstances or risks.

Section 2.7 Maximum Liability. Each Notes Guarantor, and by its acceptance of each Secured Notes Guarantee, the Trustee and each Secured Party hereby confirms that it is the intention of all such Persons that its Secured Notes Guarantee and its Guaranteed Obligations not constitute a fraudulent transfer or conveyance for purposes of the U.S. Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Secured Notes Guarantee and the Guaranteed Obligations of each Notes Guarantor hereunder. To effectuate the foregoing intention, the First Lien Collateral Agent, the Secured Parties and the Notes Guarantors hereby irrevocably agree that the Guaranteed Obligations of each Notes Guarantor under this Secured Notes Guarantee at any time shall be limited to the maximum amount as will result in the Guaranteed Obligations of such Notes Guarantor under this Secured Notes Guarantee not constituting a fraudulent transfer or conveyance.

Section 2.8 Termination and Release.

(1) A Secured Notes Guarantee as to any Notes Guarantor shall terminate and be of no further force or effect and such Notes Guarantor shall be deemed to be released from all obligations under this Article II upon:

(a) the sale, disposition, exchange or other transfer (including through merger, consolidation, amalgamation or otherwise) of the Capital Stock (including any sale, disposition or other transfer following which the applicable Notes Guarantor is no longer a Wholly Owned Restricted Secured Notes Subsidiary) of the applicable Notes Guarantor if such sale, disposition, exchange or other transfer is made in a manner not in violation of the Indenture;

(b) such Notes Guarantor becoming an Unrestricted Subsidiary or an Excluded Subsidiary;

(c) the release or discharge of the guarantee by such Notes Guarantor of the First Lien Credit Facility or other indebtedness (including the Second Lien Credit Facility) or the guarantee of any other indebtedness which resulted in the obligation to guarantee the Secured Notes;

 

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(d) the Company’s exercise of its legal defeasance option or covenant defeasance option with respect to the Secured Notes pursuant to the Indenture or the Company’s discharge of its obligations with respect to the Secured Notes pursuant to the Indenture; and

(e) as described under Article X of the Indenture.

(2) A Secured Notes Guarantee as to any Subsidiary of New Parent will be automatically released upon the applicable Subsidiary ceasing to be a Subsidiary of New Parent as a result of any foreclosure of any pledge or security interest securing the Credit Facilities or other exercise of remedies in respect thereof.

In connection with any termination or release pursuant to this Section 2.8, the Trustee shall execute and deliver to the Company all documents that the Company shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section 2.8 shall be made without recourse to or warranty by the Trustee. The Company agrees to pay all reasonable and documented out-of-pocket expenses incurred by the Trustee in connection with the execution and delivery of such documents.

Section 2.9 Additional Notes Guarantors. The Company shall cause each Wholly Owned Restricted Secured Notes Subsidiary that is not an Excluded Subsidiary and that guarantees or becomes a borrower under the Credit Facilities or that guarantees any other indebtedness of the Company or any of the Notes Guarantors to execute and deliver to the Trustee (i) a supplemental indenture substantially in the form of Exhibit A hereto pursuant to which such Subsidiary will guarantee payment of the Secured Notes and (ii) joinders to or new Security Documents and take all actions required by the Security Documents to perfect the liens created thereunder.

Section 2.10 Form of Guarantee. The form of Secured Notes Guarantee shall be set forth on the Secured Notes substantially as follows:

SECURED NOTES GUARANTEE

For value received, each Notes Guarantor hereby guarantees, jointly and severally with the other Notes Guarantors, as a primary obligor and not merely as a surety, the due and punctual payment and performance (i) to the holder of this Security the payment of principal of, premium, if any, and interest on, the Security upon which this Secured Notes Guarantee is set forth in the amounts and at the time when due and payable whether by declaration thereof, or otherwise, and interest on the overdue principal and interest, if any, of such Security, if lawful, to the holder of such Security and the Trustee on behalf of the Holders and (ii) all amounts owed to the Trustee under the Indenture, in each case in accordance with and subject to the terms and limitations of such Security, the Indenture and Article II of the First Supplemental Indenture. This Secured Notes Guarantee will not become effective until the Trustee or Authenticating Agent duly executes the certificate of authentication on this Security. This Secured Notes Guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles thereof.

Dated:

 

 

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ARTICLE III

COLLATERAL

Section 3.1 Security Documents. The payment of the principal of and interest and premium, if any, on the Secured Notes when due, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise and whether by the Company pursuant to the Secured Notes or by the Notes Guarantors pursuant to the Secured Notes Guarantees, the payment of all other Secured Notes Obligations and the performance of all other obligations of the Company and the Notes Guarantors under the Secured Notes, the Secured Notes Guarantees and the Security Documents shall be secured, as of the Acquisition Closing Date, as provided in the Security Documents, subject to the Intercreditor Agreements. The Company and each Notes Guarantor shall make all filings (including filings of continuation statements and amendments to UCC financing statements that may be necessary to continue the effectiveness of such UCC financing statements) and all other actions as are required by the Security Documents to maintain (at the sole cost and expense of the Company and the Notes Guarantors) the security interest created by the Security Documents in the Collateral (other than with respect to any Collateral the security interest in which is not required to be perfected under the Security Documents) as a perfected security interest.

Section 3.2 First Lien Collateral Agent.

(1) The First Lien Collateral Agent shall have all the rights and protections provided in the Security Documents and the First Lien Credit Facility.

(2) Subject to the provisions of Section 8.01 of the Indenture, neither the Trustee nor the First Lien Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the obtaining or maintaining of insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any First Priority Lien, or for any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, neither the Trustee nor the First Lien Collateral Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and neither the Trustee nor the First Lien Collateral Agent shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee and the First Lien Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the

 

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Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or the First Lien Collateral Agent in good faith.

(3) Subject to the Security Documents and the Intercreditor Agreements, (i) the Trustee shall direct the First Lien Collateral Agent and (ii) except as directed by the Trustee as required or permitted by the Indenture and any other representatives or pursuant to the Security Documents, in each case, subject to the Intercreditor Agreements, the Holders acknowledge that the First Lien Collateral Agent will not be obligated:

(a) to act upon directions purported to be delivered to it by any other Person;

(b) to foreclose upon or otherwise enforce any First Priority Lien; or

(c) to take any other action whatsoever with regard to any or all of the First Priority Liens, Security Documents or Collateral.

(4) The Holders agree that the First Lien Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the First Lien Collateral Agent by the Security Documents and the First Lien Credit Facility. Furthermore, each Holder consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the First Lien Collateral Agent to enter into and perform the Intercreditor Agreements and Security Documents in each of its capacities thereunder.

(5) If the Company (i) incurs First Lien Obligations at any time when the First Lien Intercreditor Agreement is not in effect or at any time when indebtedness constituting First Lien Obligations entitled to the benefit of an existing intercreditor agreement is concurrently retired and (ii) directs the Trustee to deliver to the First Lien Collateral Agent an Officer’s Certificate so stating and requesting the First Lien Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the First Lien Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Lien Obligations so incurred, the Holders acknowledge that the First Lien Collateral Agent is hereby authorized and directed to enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.

Section 3.3 Actions to Be Taken.

(1) The Trustee is authorized and directed to execute and deliver on the Acquisition Closing Date, and authorized and empowered to bind the Holders of the Secured Notes under, the following documents to which it is a party and, subject to the Intercreditor Agreements, to perform its obligations and exercise its rights and powers thereunder:

(a) the Other First Lien Secured Party Consent;

(b) the First Lien Intercreditor Agreement; and

 

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(c) the Consent and Acknowledgment.

(2) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Security Documents to which the Trustee is a party and to make further distributions of such funds to the Holders according to Section 7.03 of the Indenture.

(3) Subject to the provisions of Sections 8.01 and 8.02 of the Indenture, the Intercreditor Agreements and the Security Documents, the Trustee may, in its sole discretion and without the consent of the Holders, direct, on behalf of the Holders, the First Lien Collateral Agent to take all actions it deems necessary or appropriate in order to:

(a) foreclose upon or otherwise enforce any or all of the First Priority Liens;

(b) enforce any of the terms of the Security Documents to which the First Lien Collateral Agent or Trustee is a party; or

(c) collect and receive payment of any and all Obligations.

Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the First Lien Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the First Priority Liens or the Security Documents to which the First Lien Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Security Documents to which the First Lien Collateral Agent or Trustee is a party or this First Supplemental Indenture, and such suits and proceedings as the Trustee or First Lien Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the First Lien Collateral Agent.

Section 3.4 Release of Collateral.

(1) Subject to the terms of the Indenture, Collateral may be released from the lien and security interest created by the Security Documents to secure the Secured Notes Obligations at any time or from time to time in accordance with the provisions of the First Lien Intercreditor Agreement or as provided hereby or in the Security Documents. The applicable assets included in the Collateral shall be automatically released from the liens securing the Secured Notes, and the applicable Notes Guarantor shall be automatically released from its obligations under this First Supplemental Indenture and the Security Documents, under any one or more of the following circumstances:

(a) in respect of the property and assets of a Notes Guarantor, upon the consummation of any transaction permitted by the Indenture as a result of which such Notes Guarantor ceases to be a Subsidiary of New Parent or otherwise ceases to be a Pledgor (as

 

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defined in the Collateral Agreement), and such Notes Guarantor shall be automatically released from its obligations hereunder and under the Security Documents, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to such Notes Guarantor;

(b) upon any sale or other transfer by the Company or any Notes Guarantor of any Collateral that is permitted under the Indenture to any Person that is not the Company or a Notes Guarantor (including in connection with a condemnation or casualty event), or upon the effectiveness of any written consent to the release of the security interest granted by the Collateral Agreement in any Collateral pursuant to the Indenture, the security interest in such Collateral securing the Secured Notes shall be automatically released, all without delivery of any instrument or performance of any act by any party;

(c) to enable the Company or any Notes Guarantor to consummate the disposition (other than any disposition to the Company or another Notes Guarantor) of such property or assets and to enable any release described in Section 5.15 of the Collateral Agreement;

(d) in respect of the property and assets of a Notes Guarantor, upon such Notes Guarantor becoming an Unrestricted Subsidiary or an Excluded Subsidiary, and such Notes Guarantor shall be automatically released from its obligations hereunder and under the Security Documents;

(e) in respect of the property and assets of a Notes Guarantor, upon the release or discharge of the pledge granted by such Notes Guarantor to secure the First Lien Credit Facility Obligations or any other indebtedness or the guarantee of any other indebtedness which resulted in the obligation to become a Notes Guarantor with respect to the Secured Notes; and

(f) as described under Article X of the Indenture.

In addition, the security interests granted pursuant to the Security Documents securing the Secured Notes Obligations with respect to the Secured Notes shall automatically terminate and/or be released all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the applicable Pledgors as of the date upon (i) all Obligations under the Secured Notes and the Indenture (other than contingent or unliquidated obligations or liabilities not then due) have been paid in full in cash or immediately available funds or (ii) a legal defeasance or covenant defeasance or discharge under Article XIII of the Indenture.

(2) Notwithstanding anything herein to the contrary, at any time when an Event of Default has occurred and is continuing and the maturity of the Secured Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the First Lien Collateral Agent, no release of Collateral pursuant to the provisions of this First Supplemental Indenture or the Security Documents will be effective as against the Holders of the Secured Notes, except as otherwise provided in the First Lien Intercreditor Agreement.

 

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(3) To the extent necessary and for so long as required for any Subsidiary of the New Parent not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any other governmental agency), the Capital Stock of such Subsidiary of the New Parent (the “Regulation S-X Excluded Collateral”) shall not be included in the Collateral with respect to the Secured Notes so affected and shall not be subject to the liens securing the Secured Notes and the Secured Notes Obligations in accordance with and only to the extent provided in the Security Documents.

Section 3.5 Powers Exercisable by Receiver or Trustee. In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article III upon the Company or the Notes Guarantors with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or any Notes Guarantor or of any officer or officers thereof required by the provisions of this Article III; and if the Trustee or the First Lien Collateral Agent shall be in the possession of the Collateral under any provision of this First Supplemental Indenture, then such powers may be exercised by the Trustee or the First Lien Collateral Agent, as the case may be.

Section 3.6 Release upon Termination of the Company’s Obligations. In the event that (i) the Company delivers to the Trustee, in form and substance acceptable to it, an Officer’s Certificate and Opinion of Counsel certifying that all the Obligations under the Secured Notes have been satisfied and discharged by the payment in full of the Company’s obligations under the Secured Notes, and all such Obligations have been so satisfied, or (ii) a discharge, legal defeasance or covenant defeasance occurs under Article XIII of the Indenture with respect to the Secured Notes, the Trustee shall deliver to the Company and the First Lien Collateral Agent a notice stating that the Trustee, on behalf of the Holders of the Secured Notes, disclaims and gives up any and all rights it has in or to the Collateral with respect the Secured Notes, and any rights it has under the Secured Notes, and upon receipt by the First Lien Collateral Agent of such notice, the First Lien Collateral Agent shall be deemed not to hold a lien in the Collateral with respect to the Secured Notes on behalf of the Trustee and shall (or shall direct the First Lien Collateral Agent to) do or cause to be done all acts reasonably necessary to release such lien, with respect to the Secured Notes, as soon as is reasonably practicable.

Section 3.7 General Authority of the First Lien Collateral Agent.

(1) By acceptance of the benefits of this First Supplemental Indenture and the Security Documents, each Secured Party (whether or not a signatory hereto) shall be deemed irrevocably (i) to consent to the appointment of the First Lien Collateral Agent as its agent under the Security Documents, (ii) to confirm that the First Lien Collateral Agent shall have the authority to act as the exclusive agent of such Secured Party for the enforcement of any provision of any Security Document against any Pledgor, the exercise of remedies thereunder and the giving or withholding of any consent or approval thereunder relating to any Collateral or any Pledgor’s obligations with respect thereto, (iii) to agree that it shall not take any action to enforce any provisions of any Security Document against any Pledgor, to exercise any remedy thereunder or to give any consents or approvals thereunder except as expressly provided in this

 

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First Supplemental Indenture or any Security Document and (iv) to agree to be bound by the terms of this First Supplemental Indenture and the Security Documents and the Intercreditor Agreements.

(2) As between the First Lien Collateral Agent and the Pledgors, the First Lien Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Pledgor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

Section 3.8 Further Assurances. Upon the acquisition by the Company or any Secured Notes Guarantor of any First Priority After-Acquired Property, the Company or such Secured Notes Guarantor shall execute and deliver such mortgages, deeds of trust, deeds to secure debt, security instruments, financing statements and certificates or such other documentation substantially similar to the documentation delivered to secure First Lien Credit Facility Obligations, if any, as shall be reasonably necessary to vest in the First Lien Collateral Agent, for the benefit of the Holders of the Secured Notes, a perfected security interest or lien in such First Priority After-Acquired Property and to have such First Priority After-Acquired Property (but subject to certain limitations, if applicable, including as described in the Security Documents and Article III hereof) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such First Priority After-Acquired Property to the same extent and with the same force and effect.

ARTICLE IV

ASSUMPTION OF OBLIGATIONS

The Company hereby agrees to unconditionally assume Merger Sub’s obligations under the Secured Notes, the Indenture and the Security Documents and to be bound by all other applicable provisions of the Secured Notes, the Indenture and the Security Documents on the terms provided for therein and to perform all of the obligations and agreements of Merger Sub under the Secured Notes, the Indenture and the Security Documents.

ARTICLE V

MISCELLANEOUS

Section 5.1 Effect of First Supplemental Indenture. This First Supplemental Indenture shall become effective and operative, and shall have full force and effect, upon its execution by the parties hereto. Article II of this First Supplemental Indenture shall, subject to the terms hereof, supersede the provisions of Article XVI of the Indenture to the extent Article XVI of the Indenture is inconsistent herewith.

Section 5.2 Definitions. Capitalized terms used but not defined in this First Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.

Section 5.3 Confirmation of Indenture. The Indenture, as supplemented and amended by this First Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture, this First Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.

 

 

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Section 5.4 Concerning the Trustee. In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses under the Indenture. The recitals contained herein, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to (i) the validity or sufficiency of this First Supplemental Indenture, (ii) the proper authorization hereof by the Company by action or otherwise, (iii) the due execution hereof by the Company or (iv) the consequences of any amendment herein provided for.

Section 5.5 Governing Law. This First Supplemental Indenture shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State without regard to conflicts of law principles that would require the application of any other law.

Section 5.6 Separability. In case any one or more of the provisions contained in this First Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture, but this First Supplemental Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

Section 5.7 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 5.8 No Benefit. Nothing in this First Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns and the Holders of Secured Notes from time to time, any benefit or legal or equitable rights, remedy or claim under this First Supplemental Indenture or the Indenture.

Section 5.9 Amendments and Supplemental Indentures. This First Supplemental Indenture is subject to the provisions regarding supplemental indentures and amendments set forth in Article X of the Indenture.

Section 5.10 Legal, Valid and Binding Obligation. The Company and each Notes Guarantor hereby represents and warrants that, assuming the due authorization, execution and delivery of this First Supplemental Indenture by the Trustee, this First Supplemental Indenture is its legal, valid and binding obligation enforceable against it in accordance with its terms.

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed all as of the day and year first above written.

 

 

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EXHIBIT A

[FORM OF SUPPLEMENTAL INDENTURE]

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [            ], among [GUARANTOR] (the “New Guarantor”), a subsidiary of PRIME SECURITY SERVICES BORROWER, LLC (or its successor), a Delaware limited liability company, and THE ADT CORPORATION (or its successor), a Delaware corporation (the “Company”), and ▇▇▇▇▇ FARGO BANK NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “Trustee”).

W I T N E S S E T H :

WHEREAS, Prime Security One MS, Inc. (“Merger Sub”) and the Trustee executed and delivered an Indenture, dated as of May 2, 2016 (as originally executed, the “Original Indenture” or, as it may be from time to time supplemented or amended by one or more supplemental indentures supplemental thereto, the “Indenture”), to provide for the issuance by the Company from time to time of unsubordinated debt securities evidencing its unsecured indebtedness;

WHEREAS, pursuant to the Original Indenture, Merger Sub has issued $718,266,000 of 4.875% First-Priority Senior Secured Notes due 2032 (the “Secured Notes”);

WHEREAS, the Company, the Trustee and the existing Notes Guarantors have executed and delivered a First Supplemental Indenture, dated as of May 2, 2016 (the “First Supplemental Indenture”), to (i) provide guarantees and security in respect of the Secured Notes and (ii) provide for the assumption by the Company of Merger Sub’s obligations under the Secured Notes, the Original Indenture and the Security Documents pursuant to Section 10.01 of the Indenture; and

WHEREAS, pursuant to the Indenture and the First Supplemental Indenture, the Trustee, the Company and any Notes Guarantors are authorized to execute and deliver this Supplemental Indenture;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Secured Notes as follows:

1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

2. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all existing Notes Guarantors (if any), to guarantee the Company’s Obligations under the Secured Notes and the Indenture on the terms and subject to the conditions set forth in

 

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Article II of the First Supplemental Indenture and to be bound by all other applicable provisions of the Indenture and the First Supplemental Indenture and the Secured Notes and to perform all of the obligations and agreements of a guarantor under the Indenture and the First Supplemental Indenture.

3. Notices. All notices or other communications to the New Guarantor shall be given as provided in Section 15.03 of the Original Indenture.

4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Secured Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

6. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

7. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

8. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

 

 

 

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