EX-4.1 2 jwn-q12020xex41.htm EX-4.1 Exhibit


Exhibit 4.1

____________________
NORDSTROM, INC.,
as Issuer,
the GUARANTORS party hereto
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
$600,000,000 8.750% Senior Secured Notes due 2025
____________________
INDENTURE
Dated as of April 16, 2020
____________________


CONTENTS
Page
1
Definitions    1
Other Definitions    24
Rules of Construction    25
Inapplicability of the Trust Indenture Act    26
26
Form, Dating and Terms    26
Execution and Authentication    32
Registrar and Paying Agent    33
Paying Agent to Hold Money in Trust    33
Holder Lists    34
Transfer and Exchange    34
Mutilated, Destroyed, Lost or Stolen Notes    38
Outstanding Notes    39
Temporary Notes    39
Cancellation    40
Section 2.11.
Payment of Interest; Defaulted Interest    40
CUSIP and ISIN Numbers    41
41
Payment of Notes    41
Maintenance of Office or Agency    42
Stay, Extension and Usury Laws    42
Compliance Certificate    42
Limitation on Asset Dispositions    43
Limitation on Liens    45
Subsidiaries    45
Limitation on Restricted Payments    45
Limitation on PropCo    49
Suspension of Certain Covenants    49
Change of Control Triggering Event    50
Reports    51
Limitation on Guarantor Indebtedness    52
Statement by Officers as to Default    54
Master Leases and Other Leases.    54
Operation and Maintenance of Properties    55
Compliance with Laws and Insurance Requirements    55
Casualty or Condemnation.    55
Material Notices    56
Title to the Designated Real Estate Assets    56
Alterations    56
56
Consolidation, Merger or Sale of Assets    56
Successor Corporation Substituted    58
58
Notices and Opinions to Trustee    58
Selection of Notes to Be Redeemed or Purchased    58
Notice of Redemption    58
Effect of Notice of Redemption    60
Deposit of Redemption Price    60
Notes Redeemed in Part    60
Optional Redemption    61
Mandatory Redemption    62
62
Events of Default    62
Acceleration    64
Other Remedies    65
Section 6.4.
Waiver of Past or Existing Defaults    65
Control by Majority    65
Limitation on Suits    65
Rights of Holders to Receive Payment    66
Collection Suit by Trustee    66
Trustee May File Proofs of Claim    66
Priorities    67
Undertaking for Costs    67
67
Duties of Trustee    67
Rights of Trustee    69
Individual Rights of Trustee    70
Trustee’s Disclaimer    70
Notice of Defaults    71
[Reserved]    71
Compensation and Indemnity    71
Replacement of Trustee    72
Successor Trustee by Merger    73
Eligibility; Disqualification    73
Section 7.11.
Security Documents; Collateral Trust Agreement    73
74
Option to Effect Defeasance    74
Defeasance and Discharge    74
Conditions to Defeasance    74
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions    75
Repayment to the Issuer    76
Reinstatement    76
76
Without Consent of Holders    76
With Consent of Holders    78
[Reserved]    79
Revocation and Effect of Consents and Waivers    79
Notation on or Exchange of Notes    80
Trustee to Sign Amendments    80
81
Guarantee    81
Limitation on Liability; Termination, Release and Discharge    82
Right of Contribution    83
No Subrogation    83
Article XI. SATISFACTION AND DISCHARGE
84
Satisfaction and Discharge    84
Application of Trust Money    85
86
Security    86
Collateral Trust Agreement    88
Section 12.3.
Release of Liens in Respect of Notes    89
Collateral Access Agreement    89
Relative Rights.    90
Further Assurances; Maintenance of Properties; Compliance with Laws; Insurance.    90
Article XIII. MISCELLANEOUS
91
Notices    91
[Reserved]    93
Certificate and Opinion as to Conditions Precedent    93
Statements Required in Certificate or Opinion    93
When Notes Disregarded    93
Rules by Trustee, Paying Agent and Registrar    94
Legal Holidays    94
Section 13.8.
Governing Law    94
Jurisdiction    94
Waivers of Jury Trial    94
USA PATRIOT Act    94
No Recourse Against Others    95
Successors    95
Section 13.14.
Multiple Originals    95
Table of Contents; Headings    95
Force Majeure    95
Severability    95
Appointment of Co-Trustee    96


EXHIBIT A    Form of Global Restricted Note
EXHIBIT B    Form of Supplemental Indenture
EXHIBIT C
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
EXHIBIT D
Designated Real Estate Assets

INDENTURE, dated as of April 16, 2020, among NORDSTROM, INC., a Washington corporation (the “Issuer”), the Guarantors party hereto from time to time and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer and the Guarantors have duly authorized the execution and delivery of this Indenture to provide for the issuance and guarantee, respectively, of (i) the Issuer’s $600,000,000 8.750% Senior Secured Notes due 2025 (the “Initial Notes”), as issued on the date hereof, and (ii) any additional 8.750% Senior Secured Notes due 2025 issued pursuant to this Indenture (the “Additional Notes,” and together with the Initial Notes, the “Notes” or the “Securities”) from time to time after the Issue Date.
NOW, THEREFORE, in consideration of the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:
Article I.

DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1.    Definitions.
“Access Period” means, for each parcel of real estate Collateral, the period, which begins on the day on which the applicable Credit Agreement Agent provides the collateral trustee with notice of its exercise of its access rights in accordance with collateral access agreement following either (a) delivery by the collateral trustee to the applicable Credit Agreement Agent of a notice that it has either obtained possession or control of such parcel of real estate Collateral or sold or otherwise disposed of such parcel of real estate Collateral or (b) delivery of an enforcement notice by the applicable Credit Agreement Agent to the collateral trustee, and ends on the earliest of (A) the 180th day after such date (subject to customary tolling provisions); (B) the date on which all or substantially all of the Credit Agreement Collateral located on such parcel of real estate Collateral is collected and removed from such parcel of real estate Collateral; and (C) the repayment in full of all Credit Agreement Obligations (other than contingent indemnification obligations for which no claim has been made).
2     “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
3    “Appraised Value” of any Real Estate Asset subject to a Mortgage in favor of the Collateral Trustee shall mean the appraised value thereof as set out in an Officer’s Certificate and determined pursuant to a customary appraisal conducted by any appraiser of nationally recognized standing that is not an Affiliate of the Issuer that is selected by the Issuer; provided that such appraisal has been conducted within 12 months prior to the date of determination of the Collateral Coverage Ratio.
4    “Asset Disposition” means the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of Designated Real Estate Assets or Collateral (including by way of a Sale/ Leaseback Transaction) by the Issuer or PropCo including the issuance or sale of Equity Interests of PropCo, whether in a single transaction or a series of related transactions (each referred to in this definition as a “disposition”), in each case, other than:
(1)    dispositions of Designated Real Estate and/or Collateral by the Issuer to PropCo;
(2)    the issuance or sale of Equity Interests by PropCo to the Issuer; and
(3)    to the extent constituting a disposition, the creation, incurrence or assumption of Permitted Liens or other Liens not prohibited by this Indenture.
5    “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
6    “Below Investment Grade Rating Event” means the ratings on the Notes are lowered by each of the Rating Agencies and the Notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).
7    “Board of Directors” means (1) with respect to the Issuer or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; and (3) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval).
8    “Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or the jurisdiction of the place of payment are authorized or required by law to close.
9    “Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
10    “Casualty Event” means any taking under power of eminent domain or similar proceeding and any insured loss, in each case relating to property or other assets that constituted Collateral.
11    “Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Issuer’s properties or assets and those of the Company’s subsidiaries taken as a whole to any “person” or “group” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Issuer or one of its subsidiaries; (2) the adoption of a plan relating to the Issuer’s liquidation or dissolution; or (3) the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or any of its wholly-owned subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of its voting stock, measured by voting power rather than number of shares.
12    “Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
13    “Collateral” means all properties and assets of the Issuer and the Guarantors now owned or hereafter acquired in which Liens have been granted, or purported to be granted, or required to be granted, to the Collateral Trustee to secure any or all of the Parity Lien Obligations, except:
(1)    any properties and assets in which the Collateral Trustee is required to release its Liens pursuant to the provisions in Section 3.2 of the Collateral Trust Agreement; and
(2)    any properties and assets that no longer secure the Notes or any Obligations in respect thereof pursuant to the provisions in Section 12.3 of this Indenture provided that, in the case of clauses (1) and (2), if such Liens are required to be released as a result of the sale, transfer or other disposition of any properties or assets of the Issuer or any Guarantor, such assets or properties will cease to be excluded from the Collateral if the Issuer or any Guarantor thereafter acquires or reacquires such assets or properties.
14    “Collateral Coverage Ratio” means, as of any date of determination, the ratio of (a) the aggregate Appraised Value of all Real Estate Assets that are subject to a Mortgage to secure the Parity Lien Obligations on such date to (b) the aggregate principal amount of the Parity Lien Obligations then outstanding as of such date.
15    “Collateral Trust Agreement” means the collateral trust agreement, dated as of the date hereof, among the Issuer, the other grantors party from time to time thereto, the Trustee, and the Collateral Trustee and the other parties thereto from time to time, as such agreement may be amended, supplemented, amended and restated or otherwise modified from time to time.
16    “Collateral Trustee” means Wells Fargo Bank, National Association, in its capacity as collateral trustee under the Collateral Trust Agreement, together with its successors and assigns in such capacity.
17    “Consolidated Adjusted EBITDA” means, for any period, Consolidated Net Income for such period (disregarding any non-cash charges or credits related to any Plan, any non-qualified supplemental pension plan maintained, sponsored or contributed by the Issuer or any ERISA Affiliate, or any Multiemployer Plan) plus:
(a)    without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of:
(i)    consolidated interest expense for such period, plus
(ii)    consolidated income tax expense for such period, plus
(iii)    all amounts attributable to depreciation and amortization for such period, plus
(iv)    any extraordinary, unusual or non-recurring charges for such period, plus
(v)    any fees, expenses or charges related to any equity offering, permitted acquisition or other investment, Asset Disposition or other disposition, or incurrence or refinancing of (or amendment or other modification to the documents evidencing any) Indebtedness (in each case, whether or not successful or consummated) permitted to be made or incurred under this Indenture, including fees, expenses or charges relating to the offering and the use of proceeds hereof, as well as the amendment to the Revolving Credit Facility described in the offering memorandum to which the Notes relate, plus
(vi)    any premium, make-whole or penalty payments that are required to be made in connection with any prepayment of Indebtedness, plus
(vii)    any non-cash charges for such period; provided that in the event the Issuer or any Subsidiary makes any cash payment in respect of any such non-cash charge, such cash payment shall be deducted from Consolidated Adjusted EBITDA in the period in which such payment is made, plus
(viii)    the amount of cash restructuring charges and curtailments and modifications to pension and post-retirement employee benefit plans incurred during such period;
and minus:
(b)    without duplication and to the extent included in determining such Consolidated Net Income, the sum of:
(i)    any extraordinary, unusual or non-recurring gains for such period, plus
(ii)    non-cash gains for such period,
all determined on a consolidated basis in accordance with GAAP.
18    “Consolidated Net Income” means, for any period, the net income or loss of the Issuer and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or loss) of any Person in which any other Person (other than the Issuer or any Subsidiary or any director holding qualifying shares in compliance with applicable law) owns an Equity Interest, except to the extent of the amount of dividends or other distributions actually paid to the Issuer or any of the Subsidiaries during such period, and (b) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Issuer or any Subsidiary or the date that such Person’s assets are acquired by the Issuer or any Subsidiary.
19    “Consolidated Total Debt” means, as of any date of determination, the aggregate stated balance sheet amount of all Indebtedness of the Issuer and its Subsidiaries (or, if higher, the par value or stated face amount outstanding of all such Indebtedness (other than zero coupon Indebtedness)) determined on a consolidated basis in accordance with GAAP.
20    “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, as of the date of this Indenture, located at 333 S. Grand Avenue, 5th Floor, Suite 5A, Los Angeles, California 90071 Attn: Nordstrom, Inc. Administrator; with respect to registration for transfer or exchange, presentation at maturity or for redemptions, such office shall also mean the office or agency of the Trustee located at the date hereof at Corporate Trust Operations, MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415.
21    “Credit Agreement Agent” means, at any time, the Person serving at such time as the “Agent” or “Administrative Agent” under the Credit Agreement or any other representative then most recently designated in accordance with the applicable provisions of the Credit Agreement, together with its successors in such capacity.
22    “Credit Agreement Collateral” means any assets of the Issuer or any Guarantor that are subject to a lien or security interest in favor of a Credit Agreement Agent in order to secure the Credit Agreement Obligations; provided that, in no event shall the Credit Agreement Collateral include the Collateral.
23    “Credit Agreement Obligations” means all “Obligations,” “Secured Obligations” or similar term as defined in any Credit Agreement.
24    “Credit Facilities” means, with respect to the Issuer or any of its Subsidiaries, one or more debt facilities, indentures or other arrangements (including any credit facility, commercial paper facilities and overdraft facilities) with banks, other financial institutions or investors providing for revolving credit loans, term loans, notes receivables financing, letters of credit or other Indebtedness, including all agreements, instruments and documents executed and delivered pursuant thereto.
“Deed” means, with respect to each Designated Real Estate Asset, a special warranty deed, limited warranty deed or other local equivalent, transferring fee simple title to such Designated Real Estate Asset from Issuer to PropCo free and clear of any Liens other than Permitted Encumbrances.
25    “Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default; provided that any Default that results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default.
26    “Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Issuer) of non-cash consideration received by the Issuer or any Subsidiary in connection with an Asset Disposition that is so designated as “Designated Non-Cash Consideration pursuant to an Officer’s Certificate, less the amount of cash, cash equivalents or other Permitted Investments received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.
27    “Designated Preferred Stock” means Preferred Stock of the Issuer, as applicable (other than Excluded Equity), that is issued after the Issue Date for cash and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 3.8(b) of this Indenture.
28    “Designated Real Estate Assets” means, initially, the Real Estate Assets listed on Exhibit D attached hereto, and any Substitute Designated Real Estate Asset pursuant to Section 12.1(e) of this Indenture.
29     “Disqualified Stock” means, with respect to any Person, any Equity Interests of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is puttable, redeemable or exchangeable), in each case, at the option of the holder thereof or upon the happening of any event:
(1)    matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale; provided that the relevant change of control provisions, taken as a whole, are no more favorable in any material respect to holders of such Equity Interests than the change of control provisions applicable to the Notes and any purchase requirement triggered thereby may not become operative until compliance with the change of control provisions applicable to the Notes (including the purchase of any Notes tendered pursuant thereto));
(2)    is convertible or exchangeable for Indebtedness or Disqualified Stock, or
(3)    is redeemable at the option of the holder thereof, in whole or in part,
in each case, prior to the date that is 91 days after the earlier of the maturity date of the Notes and the date the Notes are no longer outstanding; provided that only the portion of Equity Interests that so mature or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Issuer or its Subsidiaries or a direct or indirect parent of the Issuer or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries or a direct or indirect parent of the Issuer in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.
30    “Dollars” or “$” means the lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
31    “DTC” means The Depository Trust Company or any successor securities clearing agency.
32    “Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing (but excluding Indebtedness convertible or exchangeable into Equity Interests).
33    “Equity Offering” means a public or private offering or sale for cash by the Issuer of its Equity Interests (other than Disqualified Equity Interests).
34    “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the final rules and regulations promulgated thereunder, as from time to time in effect.
35    “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Issuer, is treated as a single employer under Section 414(b) or (c) of the Internal Revenue Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Internal Revenue Code, is treated as a single employer under Section 414 of the Internal Revenue Code.
36    “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
37    “Excluded Contribution” means the net cash proceeds and cash equivalents, or the Fair Market Value of other assets, received by the Issuer after the Issue Date from:
(1)    contributions to its common equity capital, and
(2)    the sale of Capital Stock (other than Excluded Equity) of the Issuer,
38    in each case designated as Excluded Contributions pursuant to an Officer’s Certificate, or that are utilized to make a Restricted Payment pursuant to Section 3.8(c)(v) of this Indenture. Excluded Contributions will be excluded from the calculation set forth in Section 3.8(b) of this Indenture.
39    “Excluded Equity” means (i) Disqualified Stock, (ii) any Equity Interests issued or sold to a Subsidiary or any employee stock ownership plan or trust established by the Issuer or any of its Subsidiaries or a direct or indirect parent of the Issuer (to the extent such employee stock ownership plan or trust has been funded by the Issuer or any Subsidiary or a direct or indirect parent of the Issuer) and (iii) any Equity Interest that has already been used or designated as (or the proceeds of which have been used or designated as) a Cash Contribution Amount, Designated Preferred Stock, an Excluded Contribution or Refunding Capital Stock.
40    “Fair Market Value” means the consideration received or paid in any transaction or series of transactions, a value that is fair and on market terms as determined by an Officer or the Board of Directors in good faith.
41    “Fitch” means Fitch Ratings, or any successor thereto.
42    “Four Quarter Period” means the period of the most recent four full consecutive Fiscal Quarters.
43    “Funded Debt” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(1)    in respect of borrowed money or advances, and
(2)    evidenced by loan agreements, bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof), whether or not then available or drawn.
44    For the avoidance of doubt, “Funded Debt” shall not include Hedging Obligations.
45    “GAAP” means the United States generally accepted accounting principles in effect as of the Issue Date. For purposes of determining compliance with any covenant contained herein, whether a lease constitutes a capitalized lease, and whether obligations arising under such lease are required to be capitalized on the balance sheet of the lessee thereunder and/or recognized as interest expense in such lessee’s financial statements, shall be determined in accordance with GAAP as in effect on February 3, 2018 notwithstanding any modification or interpretive change occurring thereafter.
46    “Governmental Approval” means any Permit, ruling or determination by any Governmental Authority required to be obtained with respect to any Designated Real Estate Asset or the ownership, occupation, testing, operation or maintenance thereof.
47    “Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
48    “Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1)    to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2)    entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business or consistent with past practice. The term “Guarantee” used as a verb has a corresponding meaning.
49    “Guaranteed Ratio Debt” means an amount of Indebtedness incurred by any of the Guarantors if on the date of such incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof) the Total Guaranteed Leverage Ratio of the Issuer and its Subsidiaries does not exceed 2.75 to 1.00.
50    “Guarantors” means any Subsidiary that Guarantees the Notes, until such Note Guarantee is released in accordance with the terms of this Indenture.
51    “Hedge Agreement” means any Swap Contract; provided that the counterparty thereto has delivered a joinder to the Collateral Trust Agreement in the form required under the Collateral Trust Agreement in respect thereof and the other requirements of the Collateral Trust Agreement have been complied with. “Hedge Agreement” shall include both any Swap Contract constituting a “master agreement” and any related Swap Transaction; provided, however, that such joinder to the Collateral Trust Agreement referred to in this definition shall only be required once for each master agreement and shall not be required for each individual Swap Transaction thereunder.
52    “Hedge Provider” means the counterparty to the Issuer or any Guarantor under any Hedge Agreement.
53    “Hedging Obligations” means, with respect to any specified Person and with respect to any Series of Parity Lien Debt, the obligations of such Person under any Hedge Agreement, which Obligations constitute “Obligations” or “Secured Obligations” as defined in the Parity Lien Documents of such Series of Parity Lien Debt, in each case that are designated by the Issuer to the Collateral Trustee and each Parity Lien Representative as Hedging Obligations by written notice in accordance with the terms of the Collateral Trust Agreement.
54    “Holder” means each Person in whose name the Notes are registered on the registrar’s books, which shall initially be the respective nominee of DTC.
55    “Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable incurred in the ordinary course of business and consignment purchases, (ii) any earn-out obligation contingent upon performance of an acquired business, except to the extent such obligation would be required to be reflected on a consolidated balance sheet of the Issuer prepared in accordance with GAAP and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed (provided that with respect to Indebtedness that is nonrecourse to the credit of that Person, such Indebtedness shall be taken into account only to the extent of the lesser of (x) the fair market value of the asset(s) subject to such Lien and (y) the amount of Indebtedness secured), (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) all Off-Balance Sheet Liabilities and (k) Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance of doubt, any preferred Equity Interests (other than any Disqualified Equity Interests) of any Person that are convertible into common Equity Interests (other than any Disqualified Equity Interests) of such Person shall not constitute Indebtedness of such Person. For the avoidance of doubt, obligations in respect of Swap Agreements shall not constitute Indebtedness.
56    “Insolvency or Liquidation Proceeding” means:
(1)    any voluntary or involuntary case commenced by or against the Issuer or any Guarantor under Title 11, U.S. Code or any similar federal or state law for the relief of debtors, any other proceeding for the reorganization, recapitalization, receivership, liquidation or adjustment or marshaling of the assets or liabilities of the Issuer or any Guarantor, any receivership or assignment for the benefit of creditors relating to the Issuer or any Guarantor or any similar case or proceeding relative to the Issuer or any Guarantor or its creditors, in each case whether or not voluntary; or
(2)    any liquidation, dissolution, marshaling of assets or liabilities or other winding up of or relating to the Issuer or any Guarantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3)    any other proceeding of any type or nature in which substantially all claims of creditors of the Issuer or any Guarantor are determined and any payment or distribution is or may be made on account of such claims.
57    “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
58    “Investment Grade” means a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch), Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
59    “Issue Date” means April 16, 2020.
60    “Leasehold Property” means any leasehold interest of the Issuer or any Guarantor as lessee under any lease of real property.
61    “Lien” means with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, excluding operating leases.
62    “Lien Sharing and Priority Confirmation” means, as to any Series of Parity Lien Debt, the written agreement of the holders of such Series of Parity Lien Debt, as set forth in this Indenture, credit agreement or other agreement governing such Series of Parity Lien Debt, for the enforceable benefit of each other current and future Parity Lien Representative and each current and future Parity Lien Secured Party:
(1)    that all Parity Lien Obligations will be and are secured equally and ratably by all Parity Liens at any time granted by the Issuer or any Guarantor to secure any Obligations in respect of such Series of Parity Lien Debt and that all such Parity Liens will be enforceable by the Collateral Trustee for the benefit of all Parity Lien Secured Parties equally and ratably; provided, however, that notwithstanding the foregoing, (x) this provision will not be violated with respect to any particular Collateral and any particular Series of Parity Lien Debt if the Parity Lien Debt Documents in respect thereof prohibit the applicable Parity Lien Representative from accepting the benefit of a Lien on any particular asset or property or such Parity Lien Representative otherwise expressly declines in writing to accept the benefit of a Lien on such asset or property and (y) this provision will not be violated with respect to any particular Hedging Obligations if the Hedge Agreement prohibits the applicable Hedge Provider from accepting the benefit of a Lien on any particular asset or property or such Hedge Provider otherwise expressly declines in writing to accept the benefit of a Lien on such asset or property; and
(2)    that the holders of Obligations in respect of such Series of Parity Lien Debt are bound by the provisions of the Collateral Trust Agreement, including the provisions relating to the ranking of Parity Liens and the order of application of proceeds from the enforcement of Parity Liens.
63    “Master Lease” means, collectively or individually, as the context may require, (i) that certain Nordstrom Master Lease (Distribution Center) between PropCo and the Issuer, dated as of April 16, 2020, and (ii) that certain Nordstrom Master Lease (FLS) between PropCo and the Issuer, dated as of April 16, 2020.
64    “Material Real Property Document” means, with respect to any Designated Real Estate Asset, any agreement, document or instrument relating to such Designated Real Estate Asset that is material in relation to the use, business or operation of the applicable Designated Real Property Asset.
65    “Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.
66    “Mortgage” means a mortgage, deed of trust, deed to secure debt, security deed, trust deed or spreader of lien, as it may be amended, restated supplemented or otherwise modified from time to time.
67    “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA maintained, sponsored or contributed by the Issuer or any ERISA Affiliate.
68    “Net Available Cash” means, with respect to any Asset Disposition or Casualty Event, an amount equal to: (i) cash payments (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by the Issuer or any of its Subsidiaries from such Asset Disposition or Casualty Event, minus (ii) any bona fide direct costs incurred in connection with such Asset Disposition or Casualty Event, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Disposition, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Notes and Indebtedness that is secured by a Lien on the Collateral on a basis that is pari passu with or junior to the Notes) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Disposition or Casualty Event and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Disposition undertaken by the Issuer or any of its Subsidiaries in connection with such Asset Disposition; provided that upon release of any such reserve to the Issuer or any of its Subsidiaries, the amount released shall be considered Net Available Cash.
69    “Net Tangible Assets” means the aggregate amount at which the assets of the Issuer and its Subsidiaries are reflected, in accordance with GAAP as in effect on the Issue Date, on the asset side of the consolidated balance sheet of the Issuer and its Subsidiaries, as of the end of the most recent Fiscal Quarter for which financial statements shall at such time have been delivered pursuant to Section 3.12 or otherwise prepared (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which historical financial statements have been delivered or otherwise prepared) (after deducting all valuation and qualifying reserves relating to such assets), except any of the following described items that may be included among such assets: (a) trademarks, patents, goodwill and similar intangibles, (b) investments in and advances to Subsidiaries, and (c) capital lease property rights, after deducting from such amount current liabilities (other than deferred Tax effects) as reflected, in accordance with GAAP as in effect on the Issue Date, on such balance sheet.
70    “Non-Guarantor” means any Subsidiary of the Issuer that is not a Guarantor.
71    “Note Documents” means this Indenture, the Notes and the Parity Lien Security Documents securing the Obligations in respect thereof.
72    “Obligations” means any principal, interest, (including Post-Petition Interest or entitlement to fees or expenses or other charges accruing on or after the filing of any petition or application in bankruptcy or insolvency case or proceeding or for reorganization relating to the Issuer or any Guarantor whether or not a claim for Post-Petition Interest is allowed or allowable in such proceedings), penalties, fees, expenses, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
73    “Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person or (b) any indebtedness, liability or obligation under any so-called “synthetic lease” transaction entered into by such Person. For the avoidance of doubt, any preferred Equity Interests (other than any Disqualified Equity Interests) of any Person that are convertible into common Equity Interests (other than any Disqualified Equity Interests) of such Person shall not constitute an Off-Balance Sheet Liability of such Person.
74    “Officer” means, with respect to any Person, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Treasurer or Corporate Treasurer, any Assistant Treasurer or Assistant Corporate Treasurer, the Controller or Corporate Controller, any Assistant Controller or Assistant Corporate Controller, the General Counsel, any Vice President, the Secretary or Corporate Secretary or any Assistant Secretary or Assistant Corporate Secretary of such Person.
75    “Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Person.
    “Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of, or counsel to, the Issuer, or other counsel who is acceptable to the Trustee.

76    “Paying Agent” means any Person authorized by the Issuer to pay the principal of (and premium, if any) or interest on any Note on behalf of the Issuer.
77    “Parity Lien” means a Lien granted, or purported to be granted, by a Security Document to the Collateral Trustee, at any time, upon any property of the Issuer or any Guarantor to secure Parity Lien Obligations.
78    “Parity Lien Debt” means:
(1)    the Notes issued on the date of this Indenture;
(2)    any other Funded Debt (including additional Notes), that is secured by a Parity Lien and that was permitted to be incurred and permitted to be so secured under each applicable Parity Lien Debt Document; provided, in the case of any Funded Debt referred to in clause (2) of this definition, that:
(i)    on or before the date on which such Funded Debt is incurred by the Issuer or by a Subsidiary, such Funded Debt is designated by the Issuer, in an officers’ certificate in the form required under the Collateral Trust Agreement delivered to each Parity Lien Representative and the Collateral Trustee, as “Parity Lien Debt” for the purposes of this Indenture and the Collateral Trust Agreement;
(ii)    unless such Funded Debt is issued under an existing Parity Lien Debt Document for any Series of Parity Lien Debt whose Parity Lien Debt Representative is already party to the Collateral Trust Agreement, the Parity Lien Representative for such Funded Debt executes and delivers a joinder in the form required under the Collateral Trust Agreement; and
(iii)    all other requirements set forth in the Collateral Trust Agreement as to the confirmation, grant or perfection of the Collateral Trustee’s Liens to secure such Funded Debt in respect thereof are satisfied (and the satisfaction of such requirements and the other provisions of this clause (c) will be conclusively established if the Issuer delivers to the Collateral Trustee an officers’ certificate and opinion of counsel in the form required under the Collateral Trust Agreement stating that such requirements and other provisions have been satisfied and that such Funded Debt is “Parity Lien Debt”).
For the avoidance of doubt, Hedging Obligations do not constitute Parity Lien Debt but may constitute Parity Lien Obligations.
79    “Parity Lien Documents” means, collectively, the Note Documents and any other indenture, credit agreement or other agreement pursuant to which any Parity Lien Debt is incurred and the Parity Lien Security Documents.
80    “Parity Lien Obligations” means Parity Lien Debt and all other Obligations in respect thereof including, without limitation interest and premium (if any) (including Post-Petition Interest whether or not allowable), together with all Hedging Obligations and all guarantees of any of the foregoing. In addition to the foregoing, all obligations owing to the Collateral Trustee in its capacity as such, whether pursuant to the Collateral Trust Agreement or one or more of the Priority Lien Obligations (with the obligations described in this sentence being herein referred to as the “Collateral Trustee Obligations”), which Collateral Trustee Obligations shall be entitled to the priority provided pursuant to the Collateral Trust Agreement.
81    “Parity Lien Representative” means:
(1)    in the case of the Notes, the Trustee; and
(2)    in the case of any other Series of Parity Debt, the trustee, agent or representative of the holders of such Series of Parity Lien Debt who maintains the transfer register for such Series of Parity Lien Debt and (A) is appointed as a representative for such Parity Lien Debt (for purposes related to the administration of the Security Documents) pursuant to this Indenture, credit agreement or other agreement governing such Series of Parity Lien Debt and (B) has become a party to the Collateral Trust Agreement by executing a joinder in the form required under the Collateral Trust Agreement, together with its successors and assigns in such capacity.
82    “Parity Lien Secured Parties” means the holders of Parity Lien Obligations and each Parity Lien Representative.
83    “Parity Lien Security Documents” means all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Issuer or any Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of any of the Parity Lien Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and pursuant to Sections 9.1 and 9.2 of this Indenture.
84    “Permit” means any license, certificate, action, approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right, registration, filing or submission filed with or obtained from a Governmental Authority.
85    “Permitted Encumbrances” means:
(a)    Liens imposed by law for Taxes, assessments or governmental charges or levies that, in each case, are not overdue by more than 30 days or are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves with respect thereto are maintained in accordance with GAAP;
(b)    carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days (or, in the case of a landlords’ Lien, beyond any notice and cure period under the applicable real property lease) or are being contested;
(c)    pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance, employers’ health taxes and other social security laws or regulations or similar legislation or to secure letters of credit, bank guarantees or similar instruments supporting such obligations;
(d)    pledges or deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds or obligations to insurance carriers and other obligations of a like nature, in each case in the ordinary course of business or to secure letters of credit, bank guarantees or similar instruments supporting such obligations;
(e)    judgment liens in respect of judgments that do not constitute an Event of Default;
(f)    easements, restrictions (including zoning restrictions), rights-of-way and other encumbrances, title defects and matters of record affecting real property that do not materially detract from the value of the Collateral, taken as a whole, or interfere with the ordinary conduct of business of the Issuer and its Subsidiaries, taken as a whole;
(g)    the special property interest of a consignor in respect of goods subject to consignment;
(h)    Liens (i) in favor of banks, other financial institutions, securities or commodities intermediaries or brokerage arising as a matter of law encumbering deposits of cash, securities, commodities and other funds maintained with such Persons (including rights of set off) and that are within the general parameters customary in such Person’s industry, (ii) deemed to exist in connection with investments in repurchase agreements described in clause (d) of the definition of “Permitted Investments,” (iii) attaching to commodity trading accounts or other brokerage accounts in the ordinary course of business securing obligations owed to the institutions with which such accounts are maintained, (iv) that are contractual rights of setoff (x) relating to the establishment of depository relations with banks or other deposit-taking financial institutions in the ordinary course of business and not given in connection with the issuance of Indebtedness or (y) relating to pooled deposit or sweep accounts of the Issuer or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business and (v) that are rights of set-off (or holdbacks or reserves established by a credit card issuer or processor) against credit balances of the Issuer or any of its Subsidiaries with credit card issuers or credit card processors or amounts owing by such credit card issuers or credit card processors to the Issuer or any of its Subsidiaries, or Liens on returned merchandise in favor of such issuers or processors, in each case in the ordinary course of business, but not rights of set-off against any other property or assets of the Issuer or any of its Subsidiaries pursuant to agreements with credit card issuers or credit card processors to secure the obligations of the Issuer or any of its Subsidiaries to credit card issuers or credit card processors as a result of fees and chargebacks;
(i)    Liens of a collecting bank under Section 4-210 of the UCC in effect in the relevant jurisdiction (or Section 4-208 in the case of the New York UCC) on items in the course of collection;
(j)    Liens of sellers of goods to the Issuer or a Subsidiary arising as a matter of law under Article 2 of the UCC in effect in the relevant jurisdiction or similar provisions of applicable law, in each case in the ordinary course of business;
(k)    licenses of patents, trademarks and other intellectual property rights of the Issuer or any of its Subsidiaries, in each case in the ordinary course of business and not materially interfering with the conduct of business by the Issuer and its Subsidiaries, taken as a whole;
(l)    Liens solely on any cash earnest money deposits made by the Issuer or any of its Subsidiaries in connection with any letter of intent or purchase agreement entered into by it;
(m)    Liens incurred in the ordinary course of business in connection with the shipping of goods on the related goods and proceeds thereof in favor of the shipper of such goods;
(n)    as to any Leasehold Property, any Lien encumbering the underlying fee estate or master or primary lease in connection therewith so long as such fee estate or landlord (or similar) interest is not held by a Person that is the Issuer or a Guarantor or an Affiliate of the Issuer or a Guarantor; and
(o)    any matters affirmatively insured over or exceptions noted in the final title polices issued in connection with the Mortgages;
provided that the term “Permitted Encumbrances” shall not include any Lien against Collateral securing Indebtedness for borrowed money.
86    “Permitted Indebtedness” means:
(a)    obligations incurred by any Guarantor arising from agreements providing for customary indemnification, earnouts, adjustment of purchase price, non-compete, consulting or other similar obligations, in each case arising in connection with acquisitions or dispositions of any business, assets or subsidiary of such Guarantor permitted under this Indenture;
(b)    Indebtedness in respect of (i) the financing of insurance premiums or (ii) take‑or‑pay or minimum buy obligations contained in supply agreements, in each case incurred in the ordinary course of business;
(c)    obligations in respect of deferred compensation to employees of any Guarantor in the ordinary course of business;
(d)    (i) obligations of any Guarantor incurred in the ordinary course of business in respect of performance guarantees, completion guarantees, performance bonds, bid bonds, appeal bonds, surety bonds, judgment bonds, replevin bonds and similar bonds, self-insurance and other similar obligations to the extent any such obligations constitute Indebtedness and (ii) obligations in respect of letters of credit, bank guarantees or similar instruments supporting any such obligations or obligations described in clauses (c) and (d) of the definition of “Permitted Encumbrances;”
(e)    customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; and
(f)    Indebtedness incurred in the ordinary course of business in respect of cash management; netting services; automatic clearinghouse arrangements; employee credit card, debit card, prepaid card, purchase card or other payment card programs; overdraft protections and other bank products and similar arrangements and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument of a Guarantor drawn against insufficient funds in the ordinary course of business that is promptly repaid.
87    “Permitted Investments” means:
(a)    direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency or instrumentality thereof);
(b)    investments in commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a credit rating of at least A2 from S&P, P2 from Moody’s or F2 from Fitch;
(c)    investments in certificates of deposit, bankers’ acceptances and time deposits issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, (i) any domestic or offshore office of any commercial bank organized under the laws of the United States of America or any State thereof, (ii) any office located within the United States of America or in a foreign jurisdiction that has an income tax treaty with the United States of America of a commercial bank organized under the laws of another country or (iii) any office located in London of any commercial bank organized under the laws of the United States of America, any Asian country or any European country, in each case which, at the time of acquisition, has a combined capital and surplus and undivided profits of not less than $500,000,000; provided, however, that investments with any bank that has a combined capital and surplus and undivided profits of less than $500,000,000 are permitted if the Issuer maintains a banking relationship with such bank;
(d)    collateralized repurchase agreements with a term of not more than 365 days and entered into with a financial institution satisfying the criteria described in clause (c) above (i) that has a combined capital and surplus and undivided profits of not less than $500,000,000 or (ii) whose obligations under any such agreements is guaranteed by an entity that has a combined capital and surplus and undivided profits of not less than $500,000,000; and
(e)    money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940 (the “Investment Company Act”) and (ii) have portfolio assets of at least $3,000,000,000; provided that investments in any money market fund with portfolio assets of less than $3,000,000,000 are permitted if such fund has received a rating of AAA from S&P or Aaa from Moody’s.
88    “Permitted Liens” means each of the following:
(a)    Liens on the Collateral securing Parity Lien Obligations in respect of (i) Parity Lien Debt (and Parity Lien Obligations in respect thereof) so long as immediately after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Collateral Coverage Ratio shall be at least 2.00 to 1.00 and (ii) refinancings, extensions, renewals and replacements of Indebtedness secured by Liens described in subclauses (i) that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(b)    Liens on the Collateral in favor of the Collateral Trustee securing Parity Lien Obligations in respect of (i) Notes and related Note Guarantees issued on the Issue Date, (ii) refinancings, extensions, renewals and replacements of Indebtedness secured by Liens described in subclauses (i) above that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(c)    Permitted Encumbrances;
(d)    any Lien on any property or asset that constitutes Collateral of the Issuer or any Subsidiary existing on the Issue Date; provided that (i) such Lien shall not apply to any other property or asset of the Issuer or any Subsidiary and (ii) such Lien shall secure only those obligations which it secured on the Issue Date and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(e)    [Reserved];
(f)    [Reserved];
(g)    Liens in respect of leases, subleases, licenses and any other occupancy rights or agreements granted to other Persons in the ordinary course of business and not materially interfering with the conduct of business of the Issuer and its Subsidiaries, taken as a whole;
(h)    Liens in favor of customs and revenue authorities arising as a matter of law securing payment of customs duties in connection with the importation of goods;
(i)    the sale or discount, in the ordinary course of business, of accounts receivable in connection with the compromise or collection thereof and not in connection with any financing or factoring arrangement;
(j)    [Reserved];
(k)    to the extent constituting a Lien, sales or assignments of any litigation claims or rights to receive payments with respect to any such claims;
(l)    to the extent constituting a Lien, sales or assignments of any right to receive rental payments permitted pursuant to Section 3.5 of this Indenture;
(m)    Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(n)    other Liens securing obligations (including Parity Lien Obligations) that do not exceed $100,000,000.
89    “Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
90    “Plan” means any pension plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code or Section 302 of ERISA that is maintained, sponsored or contributed to by the Issuer or any ERISA Affiliate.
91    “Post-Petition Interest” means any interest, fees, expenses or other amount that accrues or would have accrued after the commencement of any Insolvency or Liquidation Proceeding, whether or not allowed or allowable in any such Insolvency or Liquidation Proceeding.
92    “Preferred Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution or winding up.
93    “Pro Forma Basis” means, with respect to the calculation of any test, financial ratio, basket or covenant under this Indenture, including the Total Guaranteed Leverage Ratio and the Collateral Coverage Ratio and the calculation of Net Tangible Assets, of any Person and its Subsidiaries, as of any date, that pro forma effect will be given to any acquisition, merger, amalgamation, consolidation, Investment, any issuance, Incurrence, assumption or repayment or redemption of Indebtedness (including Indebtedness issued, Incurred or assumed or repaid or redeemed as a result of, or to finance, any relevant transaction and for which any such test, financial ratio, basket or covenant is being calculated, including, without limitation, the issuance of the Notes, the use of proceeds thereof and the amendment to the Revolving Credit Facility), any issuance or redemption of Preferred Stock or Disqualified Stock, all sales, transfers and other dispositions or discontinuance of any Subsidiary, line of business, division, segment or operating unit, any operational change, in each case that have occurred during the four consecutive fiscal quarter period of such Person being used to calculate such test, financial ratio, basket or covenant (the “Reference Period”), or subsequent to the end of the Reference Period but prior to such date or prior to or substantially simultaneously with the event for which a determination under this definition is made (including any such event occurring at a Person who became a Subsidiary of the subject Person or was merged, amalgamated or consolidated with or into the subject Person or any other Subsidiary of the subject Person after the commencement of the Reference Period), as if each such event occurred on the first day of the Reference Period. In the event that the Issuer shall classify Indebtedness or Liens Incurred on the date of determination as Incurred in part as Guaranteed Ratio Debt or under the Collateral Coverage Ratio, respectively, and in part pursuant to one or more clauses of the definition of “Permitted Debt” or one or more clauses of the definition of “Permitted Liens,” as applicable, any calculation of Consolidated Total Debt or of Parity Lien Obligations, as applicable, in each case pursuant to this definition on such date (but not in respect of any future calculation following such date) shall not include any such Indebtedness or Liens, as applicable (and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness or Liens, as applicable, from the proceeds thereof) to the extent Incurred pursuant to any such other clause of such definitions, respectively.
94    For purposes of making any computation referred to above:
(1)    if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date for which a determination under this definition is made had been the applicable rate for the entire period (taking into account any Swap Contracts applicable to such Indebtedness if such Swap Contracts have a remaining term in excess of 12 months);
(2)    interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer, in his or her capacity as such and not in his or her personal capacity, of the Issuer or a direct or indirect parent of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP;
(3)    interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate;
(4)    interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; and
(5)    to the extent not already covered above, any such calculation may include adjustments calculated in accordance with Regulation S-X under the Securities Act.
95    “PropCo” means Nordstrom Real Estate Holdings, LLC.
96    “Rating Agency” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
97    “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by the Issuer or any Guarantor in any real property.
98    “S&P” means S&P Global Ratings, the credit ratings business operated by S&P Global Inc. and its subsidiaries.
99    “SEC” means the Securities and Exchange Commission or any successor thereto.
100    “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
101    “Security Documents” means the Collateral Trust Agreement, each Lien Sharing and Priority Confirmation, and each Parity Lien Security Document, in each case, as amended, modified, renewed or restated, in whole or in part, from time to time, in accordance with its terms and pursuant to Sections 9.1 and 9.2 of this Indenture.
102    “Series of Parity Lien Debt” means, severally, the Notes and each other issue or series of Parity Lien Debt for which a single transfer register is maintained. For the avoidance of doubt, all reimbursement obligations in respect of letters of credit issued pursuant to a Parity Lien Document shall be part of the same Series of Parity Lien Debt as all other Parity Lien Debt incurred pursuant to such Parity Lien Document.
103    “Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary” of the Issuer as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act as in effect on the Issue Date.
104    “Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
105    “Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned or held; provided that Excluded Subsidiaries shall not be considered “Subsidiaries” of the Issuer for purposes hereof. Unless the context requires otherwise, any reference to a “Subsidiary” contained herein shall refer to a Subsidiary of the Issuer.
106    “Substitute Designated Real Estate Asset” has the meaning ascribed to such term in Section 10.1(d) herein.
107    “Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Issuer or the Subsidiaries shall be a Swap Agreement. For the avoidance of doubt, “Swap Agreement” will include a swap transaction pursuant to which the obligations of the Issuer or applicable Guarantor to make scheduled payments thereunder are deferred (including, without limitation, payment obligations that are deferred to the scheduled termination date of such transaction so that such Issuer or Guarantor makes a single payment thereunder on such scheduled termination date).
108    “Swap Contract” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options for forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including such obligations or liabilities under any Master Agreement.
109    “Swap Transactions” means any and all such transactions of any kind, and the related confirmations, that are subject to the terms and conditions of, or governed by, any Hedge Agreement.
110    “Tax” or “Taxes” means any present or future tax, levy, impost, duty, deduction, withholding (including backup withholding), assessment, fee or other charge imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
111    “Total Guaranteed Leverage Ratio” means, as of any date of determination, the ratio of (i)(x) any Consolidated Total Debt that is incurred or guaranteed by any of the Guarantors as of such date minus (y) the aggregate stated balance sheet amount of unrestricted cash and cash equivalents of the Issuer and its Subsidiaries as of such date; to (ii) Consolidated Adjusted EBITDA for the Four Quarter Period ending prior to the date of such determination for which financial statements have been delivered pursuant to the covenant titled “Reports” (or prior to delivery of such financial statements, with respect to which historical financial statements have been prepared), in each case calculated on a Pro Forma Basis.
112    “Treasury Rate” means, with respect to the Notes, as of the applicable redemption date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two business days prior to the redemption date) of the yield to maturity of United States Treasury Securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H.15 with respect to each applicable day during such week or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to May 15, 2022; provided, however, that if the period from such redemption date to May 15, 2022 is not equal to the constant maturity of a United States Treasury Security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from the redemption date to May 15, 2022 is less than one year, the weekly average yield on actually traded United States Treasury Securities adjusted to a constant maturity of one year shall be used.
113    “Trust Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
114    “UCC” means the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any security interest, the Uniform Commercial Code of such jurisdiction.
115     “U.S. Government Obligations” means securities which are (1) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, provided that the payment of such obligations is unconditionally Guaranteed as a full faith and credit obligation by the United States of America. The term “U.S. Government Obligations” shall also include depository receipts issued by a bank or trust company as custodian and evidencing ownership by the holders of such depository receipts of future payments of interest or principal, or both, on U.S. Government Obligations, as defined above, held by such custodian; provided that except as required by law, no deduction may be made by the custodian from the amount payable to the holder of any such depository receipt from the amount received by the custodian in respect of any such payment of interest or principal.
SECTION 1.2.    Other Definitions.
Term
Defined in Section
“Additional Restricted Notes”
2.1(b)
“Agent Members”
2.1(e)(ii)
“Asset Disposition Offer”
3.5(b)
“Authenticating Agent”
2.2
“Automatic Exchange”
2.6(e)
“Automatic Exchange Date”
2.6(e)
“Change of Control Offer”
3.11(a)
“Change of Control Payment”
3.11(a)
“Change of Control Payment Date”
3.11(a)
“Clearstream”
2.1(a)
“Defaulted Interest”
2.11
“Defeasance”
8.2
“Euroclear”
2.1(a)
“Event of Default”
6.1(a)
“Excess Proceeds”
3.5(b)
“Global Notes”
2.1(a)
“Guaranteed Obligations”
10.1
“Issuer Order”
2.2
“Legal Holiday”
13.7
“Note Guarantees”
10.1
“Notes Register”
2.3
“protected purchaser”
2.7
“Redemption Date”
5.1
“Registrar”
2.3
“Regulation S Global Note”
2.1(a)
“Regulation S Notes”
2.1(a)
“Restricted Global Note”
2.6(e)
“Restricted Period”
2.1(a)
“Rule 144A Global Note”
2.1(a)
“Rule 144A Notes”
2.1(a)
“Satisfaction and Discharge”
11.1
“Secured Indebtedness”
6.1(a)(iv)
“Special Interest Payment Date”
2.11(a)
“Special Record Date”
2.11(a)
“TIA”
1.4
“Unrestricted Global Note”
2.6(e)
“USA PATRIOT Act”
13.11

SECTION 1.3.    Rules of Construction. Unless the context otherwise requires:
(i)    a term has the meaning assigned to it;
(ii)    an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii)    “or” is not exclusive;
(iv)    “including” means including without limitation;
(v)    words in the singular include the plural and words in the plural include the singular;
(vi)    “will” shall be interpreted to express a command;
(vii)    all amounts expressed in this Indenture or in any of the Notes in terms of money refer to the lawful currency of the United States of America;
(viii)    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 of this Indenture; and
(ix)    references to “Article,” “Section” or other subdivision herein are references to an Article, Section or other subdivision of this Indenture.
SECTION 1.4.    Inapplicability of the Trust Indenture Act. No provisions of the Trust Indenture Act of 1939, as amended (the “TIA”), are incorporated by reference in or made a part of this Indenture unless explicitly incorporated by reference. Unless specifically provided in this Indenture, no terms that are defined under the TIA have such meanings for purposes of this Indenture.
Article II.    

THE NOTES
SECTION 2.1.    Form, Dating and Terms.
(a)    The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Initial Notes issued on the date hereof will be in an aggregate principal amount of $600,000,000. In addition, the Issuer may issue, from time to time in accordance with the provisions of this Indenture, Additional Notes. Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of other Notes pursuant to Section 2.2, 2.6, 2.7, 2.9, 5.6 or 9.5, in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Section 3.11.
Notwithstanding anything to the contrary contained herein, the Issuer may not issue any Additional Notes, unless such issuance is in compliance with Sections 3.6 and 3.13.
With respect to any Additional Notes, the Issuer shall set forth in an Officer’s Certificate or one or more indentures supplemental hereto, the following information:
(i)    the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(ii)    the issue price and the issue date of such Additional Notes, including the date from which interest shall accrue; and
(iii)    whether such Additional Notes shall be Restricted Notes.
In authenticating and delivering Additional Notes, the Trustee shall receive and shall be fully protected in conclusively relying upon the Opinion of Counsel and Officer’s Certificate required by Section 13.3.
The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this Indenture. Holders of the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.
Initial Notes and any Additional Notes that are Restricted Notes (“Additional Restricted Notes”) offered and sold to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Sections 2.1(c) and (d) (the “Rule 144A Global Note”), deposited with the Trustee, as custodian for DTC, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Notes Custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and any Additional Restricted Notes offered and sold outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global Note (the “Regulation S Global Note”) in the form of Exhibit A including appropriate legends as set forth in Sections 2.1(c) and (d). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as Notes Custodian for DTC in the manner described in this Article II for credit to the respective accounts of the purchasers (or to such other accounts as they may direct), including, but not limited to, accounts at Euroclear Bank S.A./N.V. (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”). Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be transferred to non‑U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein.
Investors may hold their interests in the Regulation S Global Note through organizations other than Euroclear or Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
The Rule 144A Global Notes and the Regulation S Global Notes and any other global notes evidencing Notes issued under this Indenture are sometimes collectively herein referred to as the “Global Notes.”
The principal of, premium, if any, and interest due on the Notes shall be payable at the office or agency of the Paying Agent designated by the Issuer maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such purpose pursuant to Section 2.3; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof or otherwise in accordance with the applicable procedures of DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a Dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than fifteen (15) days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Sections 2.1(c) and (d). The Issuer shall approve any notation, endorsement or legend on the Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.
(b)    Denominations. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(c)    Restrictive Legends. Unless and until (i) an Initial Note or an Additional Restricted Note is sold under an effective registration statement or (ii) the Issuer and the Trustee receive an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, the Rule 144A Global Note and the Regulation S Global Note shall bear the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS ONE YEAR (IN THE CASE OF THE 144A NOTES) OR 40 DAYS (IN THE CASE OF THE REGULATION S NOTES) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT OR (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
(d)    Global Note Legend. Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(e)    Book-Entry Provisions. (i) This Section 2.1(e) shall apply only to Global Notes deposited with the Trustee, as custodian for DTC.
(i)    Each Global Note initially shall (%3) be registered in the name of DTC or the nominee of DTC, (%3) be delivered to the Notes Custodian for DTC and (%3) bear legends as set forth in Section 2.1(d). Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to DTC, its successors or its respective nominees, except as set forth in Sections 2.1(e)(iii) and 2.1(f). If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Notes Custodian will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(ii)    Members of, or participants in, DTC (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the custodian of DTC or under such Global Note, and DTC may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(iii)    In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to Section 2.1(f) to beneficial owners who are required to hold Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Notes of like tenor and amount.
(iv)    In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.1(f), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(v)    The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(vi)    Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (%3) the Holder of such Global Note (or its agent) or (%3) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.
(f)    Definitive Notes. Except as provided below in this paragraph (f), owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (%3) DTC notifies the Issuer that it is unwilling or unable to continue to act as Depositary for the Global Note or that DTC ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Issuer fails to appoint a successor depositary within 90 days after the date of such notice, or (%3) there shall have occurred and be continuing an Event of Default with respect to the Notes under this Indenture and DTC shall have requested the issuance of Definitive Notes. In the event of the occurrence of any of the events specified in the second preceding sentence or in clause (i) or (ii) of the preceding sentence, the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of the Issuer or evidencing a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which either the Issuer or any Affiliate of the Issuer was an owner of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d). If required to do so pursuant to any applicable law or regulation, beneficial owners may also obtain Definitive Notes in exchange for their beneficial interests in a Global Note upon written request in accordance with DTC’s and the Registrar’s procedures.
(i)    Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to this Section 2.1(f) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in Section 2.1(c).
(ii)    If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (%3) cancel such Definitive Note, (%3) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (%3) in the event that such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal amount not so transferred.
(iii)    If a Definitive Note is transferred or exchanged for another Definitive Note, (%3) the Trustee will cancel the Definitive Note being transferred or exchanged, (%3) the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (%3) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, one or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder thereof.
SECTION 2.2.    Execution and Authentication. One Officer of the Issuer shall sign the Notes for the Issuer by manual, facsimile or pdf signature. If the Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized officer of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery: (%3) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $600,000,000, (%3) subject to Sections 3.6 and 3.13, Additional Notes for original issue in an unlimited principal amount and (%3) under the circumstances set forth in Section 2.6(e), Initial Notes in the form of an Unrestricted Global Note, in each case upon a written order of the Issuer signed by one Officer of the Issuer (the “Issuer Order”). The Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the Holder of the Notes and whether the Notes are to be Initial Notes or Additional Notes.
The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Issuer to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Issuer.
Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.
In case the Issuer, pursuant to Article IV, shall be consolidated or merged with or into any other corporation or shall convey or transfer all or substantially all of its properties or assets to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Issuer or any Guarantor shall have been merged, or the Person which shall have received a conveyance or transfer as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance or transfer may (but shall not be required), from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate to reflect such successor Person, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and delivered in such new name.
SECTION 2.3.    Registrar and Paying Agent. The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may be presented for payment. The Registrar shall keep a register of the Notes and of their transfer and exchange (the “Notes Register”). The Issuer may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any co‑registrar.
The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee in writing of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer agent.
The Issuer initially appoints DTC to act as Depositary with respect to the Global Notes. The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent for the Notes and the Issuer may remove any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (%3) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by DTC procedures or (%3) written notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (a) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee.
SECTION 2.4.    Paying Agent to Hold Money in Trust. Prior to 10:00 a.m. (Eastern Time), on each date of the principal of, premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, if any, or interest when due. The Issuer shall require the Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on the Notes (whether such assets have been distributed to it by the Issuer or other obligors on the Notes), shall notify the Trustee in writing of any default by the Issuer or any Guarantor in making any such payment and shall during the continuance of any default by the Issuer (or any other obligor upon the Notes) or any Guarantor in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes together with a full accounting thereof. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5.    Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Issuer, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders and the Issuer.
SECTION 2.6.    Transfer and Exchange.
(a)    A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by this Section 2.6. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes Register maintained by the Trustee for the purpose, and no transfer or exchange will be effective until it is registered in such Notes Register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section 2.6 and Sections 2.1(e) and 2.1(f), as applicable, and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not comply with this Section 2.6(a).
(b)    Transfers of Rule 144A Notes. The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note prior to the date that is one year after the later of the date of its original issue and the last date on which the Issuer or any Affiliate of the Issuer was the owner of such Notes (or any predecessor thereto):
(i)    a registration of transfer of a Rule 144A Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC; and
(ii)    a registration of transfer of a Rule 144A Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Issuer and the Registrar or its agent of a certificate substantially in the form set forth in Exhibit C from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer.
(c)    Transfers of Regulation S Notes. The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(i)    a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and
(ii)    a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Exhibit C hereof from the proposed transferee and receipt by the Issuer and Registrar or its agent of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer.
After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in accordance with applicable law without requiring the certification set forth in Exhibit C or any additional certification.
(d)    Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (%3) an Initial Note is being transferred pursuant to an effective registration statement, (%3) Initial Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in accordance with Section 2.6(e) or (%3) there is delivered to the Registrar an Opinion of Counsel stating that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.
(e)    Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not Bearing Restricted Notes Legend. Upon the Issuer’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, beneficial interests in a Global Note bearing the Restricted Notes Legend (a “Restricted Global Note”) may be automatically exchanged into beneficial interests in a Global Note not bearing the Restricted Notes Legend (an “Unrestricted Global Note”) without any action required by or on behalf of the Holder (the “Automatic Exchange”) at any time on or after the date that is the 366th calendar day after (%3) with respect to the Notes issued on the Issue Date, the Issue Date or (%3) with respect to Additional Restricted Notes, if any, the issue date of such Additional Restricted Notes, or, in each case, if such day is not a Business Day, on the next succeeding Business Day (the “Automatic Exchange Date”). Upon the Issuer’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, the Issuer, upon request by any Holder, shall (%5) provide written notice to DTC and the Trustee at least fifteen (15) calendar days prior to the Automatic Exchange Date, instructing DTC to exchange all of the outstanding beneficial interests in a particular Restricted Global Note to the Unrestricted Global Note, which the Issuer shall have previously otherwise made eligible for exchange with DTC, (%5) provide prior written notice to each Holder at such Holder’s address appearing in the register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange Date, which notice must include (w) the Automatic Exchange Date, (x) the section of this Indenture pursuant to which the Automatic Exchange shall occur, (y) the “CUSIP” number of the Restricted Global Note from which such Holder’s beneficial interests will be transferred and (z) the “CUSIP” number of the Unrestricted Global Note into which such Holder’s beneficial interests will be transferred, and (%5) on or prior to the Automatic Exchange Date, deliver to the Trustee for authentication one or more Unrestricted Global Notes, duly executed by the Issuer, in an aggregate principal amount equal to the aggregate principal amount of Restricted Global Notes to be exchanged into such Unrestricted Global Notes.
Notwithstanding anything to the contrary in this Section 2.6(e), during the fifteen (15) calendar day period prior to the Automatic Exchange Date, no transfers or exchanges other than pursuant to this Section 2.6(e) shall be permitted without the prior written consent of the Issuer. As a condition to any Automatic Exchange, the Issuer shall provide, and the Trustee shall be entitled to conclusively rely upon, an Officer’s Certificate and Opinion of Counsel to the Issuer to the effect that the Automatic Exchange shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act and that the aggregate principal amount of the particular Restricted Global Note is to be transferred to the particular Unrestricted Global Note by adjustment made on the records of the Trustee, as custodian for the Depositary, to reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section 2.6(e), the aggregate principal amount of the Global Notes shall be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect the relevant increase or decrease in the principal amount of such Global Note resulting from the applicable exchange. The Restricted Global Note from which beneficial interests are transferred pursuant to an Automatic Exchange shall be canceled following the Automatic Exchange.
(f)    Retention of Written Communications. The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.1 or this Section 2.6. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior written notice to the Registrar.
(g)    Obligations with Respect to Transfers and Exchanges of Notes. To permit registrations of transfers and exchanges, the Issuer shall, subject to the other terms and conditions of this Article II, execute and the Trustee shall authenticate Definitive Notes and Global Notes at the Issuer’s and Registrar’s written request.
No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Section 2.2, 2.6, 2.7, 2.9, 5.6 or 9.5).
The Issuer (and the Registrar) shall not be required to register the transfer of or exchange of any Note (%4) for a period beginning (%5) fifteen (15) calendar days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (%5) fifteen (15) calendar days before an interest payment date and ending on such interest payment date or (%3) called for redemption, except the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the form of Note attached hereto as Exhibit A) interest on such Note and for all other purposes whatsoever, including without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(f) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in Section 2.1(c).
All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(h)    No Obligation of the Trustee. The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
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 Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) 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 hereof. Neither the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by DTC.
SECTION 2.7.    Mutilated, Destroyed, Lost or Stolen Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the UCC are met, such that the Holder (a) satisfies the Issuer and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Issuer and the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the UCC (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee; provided, however, that if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the Trustee and/or the Issuer shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) the Issuer to protect the Issuer, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Issuer, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.7, the Issuer may require that such Holder pay 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 counsel and of the Trustee) in connection therewith.
Subject to the proviso in the initial paragraph of this Section 2.7, every new Note issued pursuant to this Section 2.7, in lieu of any mutilated, destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.7 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 Notes.
SECTION 2.8.    Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.7 and those described in this Section 2.8 as not outstanding. A Note does not cease to be outstanding in the event the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that (%3) for purposes of determining which Notes are outstanding for consent or voting purposes hereunder, the provisions of Section 13.5 shall apply and (%3) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered outstanding.
If a Note is replaced pursuant to Section 2.7 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section 2.7.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9.    Temporary Notes. In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Issuer for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.
SECTION 2.10.    Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Issuer or any Guarantor acquires any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.10. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
SECTION 2.11.    Payment of Interest; Defaulted Interest. Interest on any Note 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 such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3.
Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a)    The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) 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 Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment (the “Special Interest Payment Date”), and at the same time the Issuer 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 Section 2.11(a). Thereupon the Issuer shall fix a record date (the “Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the Special Interest Payment Date and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Issuer, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.1, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions in Section 2.11(b).
(b)    The Issuer may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment pursuant to this Section 2.11(b), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.11, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.12.    CUSIP and ISIN Numbers. The Issuer in issuing the Notes may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption or other notice as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or other notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or other notification shall not be affected by any defect in or omission of such CUSIP and ISIN numbers. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
Article III.    

COVENANTS
SECTION 3.1.    Payment of Notes.
The Issuer will pay or cause to be paid the principal of, premium, if any, and interest due on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest due on the Notes will be considered paid on the date due if the Paying Agent, if other than Holdings or a Subsidiary thereof, holds as of 11:00 a.m. (Eastern Time) on the due date money deposited (or caused or directed to be deposited) by the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due on the Notes.
The Issuer will pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; the Issuer will pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
SECTION 3.2.    Maintenance of Office or Agency.
The Issuer will maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for payment, registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served; provided, however, that nothing herein shall be construed to render the Trustee or any affiliate of the Trustee, Registrar or co-registrar as the agent of the Issuer for service of process. The Issuer 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 Issuer fails to maintain any such required office or agency or fails 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.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes 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 will in any manner relieve the Issuer of their obligation to maintain an office or agency for such purposes. The Issuer 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
SECTION 3.3.    Stay, Extension and Usury Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenant that it will not, by resort to any such law, 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 has been enacted.
SECTION 3.4.    Compliance Certificate.
The Issuer shall deliver to the Trustee, within 120 days after the end of each Fiscal Year ended after the Issue Date, an Officer’s Certificate (which need not comply with Section 13.4) stating, as to the signer thereof (who must be the principal executive officer, principal financial officer or principal accounting officer of the Issuer) that:
(a)    a review of the activities of the Issuer during such year and of its performance under this Indenture has been made under his or her supervision, and
(b)    to the best of his or her knowledge, based on such review, the Issuer has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him or her and the nature and status thereof.
SECTION 3.5.    Limitation on Asset Dispositions.
(a)    The Issuer shall not, and shall not permit PropCo to, make any Asset Disposition unless:
(i)    the Issuer or PropCo, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the Equity Interests, property or assets subject to such Asset Disposition;
(ii)    in any such Asset Disposition, or series of related Asset Dispositions, at least 75% of the consideration from such Asset Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), received by the Issuer or PropCo, as the case may be, is in the form of cash, cash equivalents or other Permitted Investments; and
(iii)    an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied within 365 days after the receipt thereof (or, if the Issuer or PropCo enters into a binding commitment to acquire such long-term assets within 365 days of receipt of such Net Available Cash, within 540 days of receipt thereof) at the option of the Issuer:
(A)    to repay, redeem, repurchase or otherwise acquire or retire: (1) the Notes; (2) any other Parity Lien Obligations; provided that in the case of clause (2), the Issuer shall equally and ratably reduce the Notes Obligations (x) through open market purchases (to the extent such purchases are at or above 100% of the principal amount of the Notes, (y) as provided under Section 5.7 or (z) by making an Asset Disposition Offer; or
(B)    by PropCo to acquire Real Estate Assets that would constitute and are pledged in favor of the Parity Lien Obligations as, Collateral; or
(C)    any combination of the foregoing;
provided that, pending the final application of the amount of any such Net Available Cash in accordance with clause (iii) of this Section 3.5(a), the Issuer and PropCo may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture.
For purposes of the 75% cash, cash equivalents or other Permitted Investments requirement set forth in clause (ii) above, the following shall be deemed to be “cash”: (I) any liabilities (as shown on the Issuer’s or PropCo’s most recent balance sheet or in the footnotes thereto which shall at such time have been delivered pursuant to Section 3.12 or otherwise prepared (other than any liabilities that are by their terms subordinated to the Notes Obligations)) that are assumed by the transferee with respect to the applicable disposition, (II) any notes or other obligations or other securities or assets received by the Issuer or PropCo in the applicable disposition that are converted into cash or cash equivalents or other Permitted Investments within 180 days of the receipt thereof (to the extent of the cash or cash equivalents or other Permitted Investments received) and (III) any Designated Non-Cash Consideration received by the Issuer or PropCo in the applicable disposition having an aggregate fair market value (as determined in good faith by the Issuer), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (III) that is at the time outstanding, not to exceed, at the time of receipt of such consideration, 1.0% of Net Tangible Assets of the Issuer and its Subsidiaries (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).
(b)    The amount of any Net Available Cash that is not applied or invested or committed to be applied or invested as provided in Section 3.5(a) will be deemed to constitute “Excess Proceeds” under this Indenture. Within 10 Business Days after the date that the aggregate amount of Excess Proceeds exceeds $20.0 million, the Issuer will be required to make an offer (“Asset Disposition Offer”) to all Holders of Notes issued under this Indenture to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in Sections 3.5(c) and (d) and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer shall deliver notice of such Asset Disposition Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Issuer may, in its sole discretion, make an Asset Disposition Offer pursuant to this Section 3.5 prior to the time that the aggregate amount of Excess Proceeds exceeds $20.0 million.
(c)    To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes to be purchased on a pro rata basis, by lot to the extent practicable or by such other method in accordance with the applicable procedures of DTC, on the basis of the aggregate principal amount of tendered Notes; provided that no Notes will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(d)    The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 3.5. To the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws, rules and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
SECTION 3.6.    Limitation on Liens.
(a)    The Issuer and the Guarantors shall not create, incur, assume or permit to exist any Lien securing Indebtedness on or with respect to the Collateral or any Designated Real Estate Assets, except for Permitted Liens.
(b)    For purposes of determining compliance with this Section 3.6, (%3) a Lien securing Indebtedness need not be permitted solely by reference to the above paragraph or to one category (or portion thereof) of Permitted Liens described in the definition of “Permitted Liens,” but may be permitted in part under any combination thereof and (%3) in the event that a Lien securing Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens described in the definition of “Permitted Liens” or pursuant to the above paragraph, the Issuer may, in its sole discretion, classify or divide such Lien securing such Indebtedness (or any portion thereof) in any manner that complies with this Section 3.6.
SECTION 3.7.    Subsidiaries. If any Subsidiary of the Issuer guarantees or becomes a borrower in respect of the obligations under the Revolving Credit Facility, any facility evidencing Parity Lien Obligations or any other facility evidencing indebtedness in an aggregate principal amount in excess of $100,000,000, the Issuer shall, within twenty Business Days after such Domestic Subsidiary guarantees or becomes a borrower in respect of the obligations under the Revolving Credit Facility, any facility evidencing Parity Lien Obligations or any other facility evidencing indebtedness in an aggregate principal amount in excess of $100,000,000, notify the Trustee thereof and promptly cause such Domestic Subsidiary to execute and deliver a supplemental indenture to this Indenture providing for a Note Guarantee by such Domestic Subsidiary.
SECTION 3.8.    Limitation on Restricted Payments. The Issuer shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:
(a)    declare or pay any dividend or make any payment or distribution on account of the Issuer’s or any of its Subsidiaries’ Equity Interests, including any payment made in connection with any merger, amalgamation or consolidation involving the Issuer (other than (A) dividends or distributions by the Issuer payable solely in Equity Interests (other than Disqualified Stock) of the Issuer; (B) dividends or distributions by a Subsidiary (other than direct or indirect dividends or distributions of Collateral by PropCo) so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a Wholly Owned Subsidiary, the Issuer or Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with Equity Interests in such class or series of securities); or
(b)    purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Issuer or any direct or indirect parent of the Issuer, including in connection with any merger, amalgamation or consolidation;
(all such payments and other actions set forth in clauses (a) through (b) above being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(i)    no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; or
(ii)    immediately after giving effect to such transaction on a Pro Forma Basis, the Guarantors could Incur $1.00 of additional Indebtedness as Guaranteed Ratio Debt; or
(iii)    such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and its Subsidiaries after the Issue Date (including Restricted Payments permitted by clause (1) of the next succeeding paragraph, but excluding all other Restricted Payments permitted by the next succeeding paragraph), is less than the sum of, without duplication,
(A)    50% of the Consolidated Net Income of the Issuer for the period (taken as one accounting period) beginning on May 3, 2020 to the end of the Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, or, in the case that such Consolidated Net Income for such period is a deficit, minus 100% of such deficit, plus
(B)    100% of the aggregate net proceeds, including cash and the Fair Market Value of assets (other than cash), received by the Issuer after the Issue Date from the issue or sale of Equity Interests of the Issuer (other than Excluded Equity), including such Equity Interests issued upon exercise of warrants or options, plus
(C)    100% of the aggregate amount of contributions to the capital of the Issuer received in cash and the Fair Market Value of assets (other than cash) after the Issue Date (other than Excluded Equity), plus
(D)    the principal amount of any Indebtedness that, in each case, has been converted into or exchanged for Equity Interests in the Issuer (other than Excluded Equity).
(c)    The foregoing provisions will not prohibit:
(i)    the payment of any dividend or distribution or consummation of any redemption within 60 days after the date of declaration thereof or the giving of a redemption notice related thereto, if at the date of declaration or notice such payment would have complied with the provisions of this Indenture;
(ii)    the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) of the Issuer or any direct or indirect parent of the Issuer, in exchange for, or out of the proceeds of the issuance or sale of, Equity Interests of the Issuer or any direct or indirect parent of the Issuer or contributions to the equity capital of the Issuer (other than Excluded Equity) (collectively, including any such contributions, “Refunding Capital Stock”);
(A)    the declaration and payment of accrued dividends on the Retired Capital Stock out of the proceeds of the issuance or sale (other than to a Subsidiary of the Issuer or to an employee stock ownership plan or any trust established by the Issuer or any of its Subsidiaries) of Refunding Capital Stock; and
(B)    if immediately prior to the retirement of the Retired Capital Stock, the declaration and payment of dividends thereon was permitted pursuant to this covenant and has not been made as of such time (the “Unpaid Amount”), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of the Issuer or any direct or indirect parent of the Issuer) in an aggregate amount no greater than the Unpaid Amount (with the payment of such Unpaid Amount being treated as a payment under the applicable provision);
(iii)    the purchase, retirement, redemption or other acquisition (or Restricted Payments to the Issuer or any direct or indirect parent of the Issuer to finance any such purchase, retirement, redemption or other acquisition) for value of Equity Interests (including related stock appreciation rights or similar securities) of the Issuer or any direct or indirect parent of the Issuer held directly or indirectly by any future, present or former employee, officer, director, manager, consultant or independent contractor of the Issuer or any direct or indirect parent of the Issuer or any Subsidiary of the Issuer or their estates, heirs, family members, spouses or former spouses, domestic partners or former domestic partners, or permitted transferees (including for all purposes of this clause (4), Equity Interests held by any entity whose Equity Interests are held by any such future, present or former employee, officer, director, manager, consultant or independent contractor or their estates, heirs, family members, spouses or former spouses, domestic partners or former domestic partners, or permitted transferees) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement or any stock subscription or shareholder or similar agreement; provided, however, that the aggregate amounts paid under this clause (3) shall not exceed (x) $25.0 million in any fiscal year;
(iv)    the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) and the declaration and payment of dividends to the Issuer or any direct or indirect parent of the Issuer, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of the Issuer or any direct or indirect parent of the Issuer issued after the Issue Date; provided, however, that (A) for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, a Guarantor would be able to incur $1 of Guaranteed Ratio Debt and (B) the aggregate amount of dividends declared and paid pursuant to this clause (6) does not exceed the net cash proceeds actually received by the Issuer from the sale (or the contribution of the net cash proceeds from the sale) of Designated Preferred Stock;
(v)    Restricted Payments that are made with Excluded Contributions;
(vi)    other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (6) not to exceed $250.0 million per fiscal year;
(vii)    payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger, amalgamation or transfer of assets that complies with the provisions of this Indenture;
(viii)    the payment of cash in lieu of the issuance of fractional shares of Equity Interests in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution or split of or upon exercise, conversion or exchange of Equity Interests, warrants, options or other securities exercisable or convertible into, Equity Interests of the Issuer or any direct or indirect parent of the Issuer; and
(ix)    other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (9) not to exceed 6% of market capitalization.
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (iii), (vi) and (ix), no Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
For purposes of this Section 3.8, if any Restricted Payment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Issuer may divide and classify such Restricted Payment (or a portion thereof) in any manner that complies with this covenant and may later divide and reclassify any such Investment or Restricted Payment so long as the Investment or Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
Notwithstanding anything to the contrary in this Section 3.8, neither the Issuer nor any Subsidiaries may make any Restricted Payment constituting any Collateral or Designated Real Estate Assets, except in compliance with Section 3.5.
SECTION 3.9.    Limitation on PropCo. Notwithstanding anything to the contrary in this Section 3.9, PropCo shall not have any Subsidiaries and may not make any Investments in any Person. PropCo shall not hold any assets other than the Collateral or Designated Real Estate Assets or have any operations other than (a) holding the Collateral (including any Collateral or Designated Real Estate Assets contributed to or acquired by PropCo after the Issue Date) and leasing or licensing such Collateral or Designated Real Estate Assets to the Issuer or its other subsidiaries or otherwise operating such Collateral or Designated Real Estate Assets in the ordinary course of business in accordance with the provisions of this Indenture and distributing the cash proceeds of such leasing or licensing to the Issuer, (b) performing its obligations with respect to the Indebtedness and Liens permitted to be incurred under this Indenture, (c) maintaining its legal existence, (d) issuing equity interests to its parent company, (e) participating in tax, accounting and other administrative matters, (f) providing indemnification to officers and directors (g) incurring Indebtedness or Liens to the extent permitted hereunder, (h) consummating any Asset Dispositions and apply the proceeds thereof, in each case in accordance with Section 3.5 and (i) activities incidental to the foregoing businesses, activities or operations.
SECTION 3.10.    Suspension of Certain Covenants.
(a)    If on any date following the second anniversary of the Issue Date the Notes have an Investment Grade Rating from at least two of the Rating Agencies and no Default or Event of Default has occurred and is continuing under this Indenture, then beginning on that day and subject to this Section 3.10, Sections 3.8 and 3.13 in this Indenture will be suspended (collectively, the “Suspended Covenants”). The period during which such covenants shall be suspended pursuant to this Section 3.10 is called the “Suspension Period.” The Issuer shall notify the Trustee of the continuance and termination of any Suspension Period.
(b)    In the event that the Issuer and its Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of Section 3.10(a) and, subsequently, one of the Rating Agencies withdraws its ratings or downgrades the rating assigned to the Notes so that the Notes no longer have Investment Grade Ratings from two Rating Agencies or a Default or Event of Default occurs and is continuing, then the Issuer and its Subsidiaries will, from and after such date (the “Reinstatement Date”), again be subject to the Suspended Covenants. Notwithstanding the foregoing and any other provision of this Indenture, the Notes or the Guarantees, no Default or Event of Default shall be deemed to exist under this Indenture, the Notes or any Guarantees with respect to the Suspended Covenants based on, and none of the Issuer or any of the Subsidiaries shall bear any liability with respect to the Suspended Covenants for (a) any actions taken or events occurring during a Suspension Period (including without limitation any agreements, Liens, preferred stock, obligations (including Indebtedness), or of any other facts or circumstances or obligations that were incurred or otherwise came into existence during a Suspension Period), or (b) any actions required to be taken at any time pursuant to any contractual obligation entered into during a Suspension Period, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period.
(c)    In the event of any reinstatement of the Suspended Covenants, all Indebtedness incurred during the Suspension Period will be classified as having been Incurred pursuant to clause (c) of Section 3.13 and all Restricted Payments made after such reinstatement will be calculated as though the limitations under Section 3.8 had been in effect prior to, but not during, the Suspension Period. The Trustee shall have no obligation to independently determine or verify if a Suspended Covenant has occurred or notify the holders of the continuance and termination of any Suspension Period, or the occurrence of a Reinstatement Date. The Issuer shall provide written notice to the Trustee of the occurrence of any Reinstatement Date. The Trustee may provide a copy of any such notice to any holder of Notes upon request.
SECTION 3.11.    Change of Control Triggering Event.
(a)    If a Change of Control Triggering Event occurs, except as provided in Section 3.11(c) or unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes pursuant to Section 5.7, the Issuer will make an offer (the “Change of Control Offer”) to each Holder of Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 principal amount in excess thereof) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of repurchase (the “Change of Control Payment”). Within 30 days following the date of any Change of Control Triggering Event, or, at the Issuer’s option, prior to any Change of Control Triggering Event but after the public announcement of the Change of Control Triggering Event, the Issuer shall mail (or in the case of holders of book-entry interests, transmit electronically in accordance with the applicable procedures of DTC) a notice to Holders describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice (the “Change of Control Payment Date”), which date shall be no earlier than 30 days and no later than 60 days from the date such notice is so mailed or transmitted (subject to the next succeeding sentence), pursuant to the procedures required by this Indenture and described in such notice. The notice shall state, if so mailed or transmitted prior to the date of consummation of the Change of Control Triggering Event, that the offer to repurchase the Notes is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date specified in the notice; provided, that if a conditional Change of Control Offer is made, the Change of Control Payment Date may be delayed, in the Issuer’s discretion, until such time as such Change of Control Triggering Event shall have occurred, or if such Change of Control Triggering Event shall not have occurred by the applicable Change of Control Payment Date (whether the original Change of Control Payment Date or the Change of Control Payment Date so delayed), then such Change of Control Offer may be rescinded by the Issuer.
(b)    The Issuer shall comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws, rules or regulations conflict with this Section 3.11 and Section 7 of the Notes, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 3.11 or Section 7 of the Notes by virtue of such conflicts and compliance with law.
(c)    On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(i)    accept for purchase all Notes or portions of Notes properly tendered (and not properly withdrawn) pursuant to the Change of Control Offer;
(ii)    deposit by 11:00 a.m. New York City time with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered (and not properly withdrawn) and accepted for purchase by the Issuer; and
(iii)    deliver or cause to be delivered to the Trustee (if not previously delivered to the Trustee by the Holders) the Notes accepted for purchase, together with an Officer’s Certificate stating the aggregate principal amount of Notes being purchased by the Issuer.
(d)    The Paying Agent shall promptly mail (or in the case of holders of book-entry interests, transmit electronically in accordance with the applicable procedures of DTC) to each Holder of Notes properly tendered (and not properly withdrawn) and accepted for purchase by the Issuer, the Change of Control Payment for the Notes, and the Trustee, upon receipt of an authentication order, shall promptly authenticate and mail to each Holder a new Note (or in the case of book-entry interests cause to be transferred by book-entry an interest in the applicable global note) equal in principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note will be in a minimum principal denomination of $2,000 or an integral multiple of $1,000 in excess thereof.
(e)    Notwithstanding anything to the contrary in this Section 3.11, the Issuer shall not be required to make a Change of Control Offer Triggering Event to repurchase the Notes upon a Change of Control Triggering Event if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements for a Change of Control Offer made by us, and such third party purchases all Notes properly tendered (and not properly withdrawn) under its offer.
SECTION 3.12.    Reports.
(a)    To the extent the Issuer is required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and to the Holders and to the Holders within 15 days after the Issuer is required to file (including any extension period under Rule 12b-25 under the Exchange Act) the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulation.
(b)    To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured. The filing by the Issuer of such information and such reports with the SEC shall satisfy any requirement under this Indenture to furnish such reports to the Trustee and to Holders; it being understood that the Trustee shall have no responsibility to determine whether the Issuer has made such filings. In addition, to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes are outstanding, it will furnish to the Trustee and to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c)    Delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s, any Guarantor’s or any other Person’s compliance with any of its covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates delivered pursuant to this Indenture).
SECTION 3.13.    Limitation on Guarantor Indebtedness. The Issuer shall not permit any Guarantor to create, incur, assume, Guarantee, or otherwise become liable in respect of any Indebtedness, except:
(a)    (%6) Parity Lien Obligations permitted pursuant to clause (a) of the definition of “Permitted Liens” and any other Indebtedness that would be permitted pursuant to such clause (a) if such other Indebtedness were treated for such purpose as Parity Lien Obligations (and, in each case, amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such amendment, extension, renewal, refinancing or replacement)) and Guarantees of such Parity Lien Obligations and any such other Indebtedness;
(b)    Indebtedness represented by the Note Guarantees in respect of the Notes issued on the Issue Date;
(c)    Indebtedness existing on the Issue Date and amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such amendment, extension, renewal, refinancing or replacement);
(d)    Indebtedness under Credit Facilities in an aggregate principal amount not to exceed the greater of (x) $1,250,000,000 and (y) the sum of (1) 75% of the net book value of the Issuer and its Subsidiaries’ accounts receivable at such date plus (2) 90% of the net book value of the Issuer and its Subsidiaries’ inventory at such date, in each case and amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such amendment, extension, renewal, refinancing or replacement); provided that, net book value shall be determined in accordance with GAAP and shall be calculated using amounts reflected on the most recent consolidated balance sheet of the Issuer and its Subsidiaries that is internally available;
(e)    Guarantees of Indebtedness; provided that the Indebtedness so Guaranteed would have been permitted to be incurred pursuant to this Section 3.13, assuming for purposes of this clause (e) that the Person incurring the Indebtedness so Guaranteed were subject to this Section 3.13;
(f)    Permitted Indebtedness;
(g)    Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets (other than real property or fixtures constituting Collateral or Designated Real Estate Assets as of the Issue Date or required to become Collateral) or to finance the acquisition of computer hardware or software or other information technology assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection therewith); provided that (i) such Indebtedness is incurred prior to or within twelve months after such acquisition or the completion of such construction or improvement and (ii) such Indebtedness shall not be incurred on or with respect to any assets that constitute or have become Collateral or any Designated Real Estate Assets;
(h)    other Indebtedness in an aggregate principal amount not to exceed the sum of an amount at any time outstanding equal to $100,000,000;
(i)    Guaranteed Ratio Debt;
(j)    Indebtedness supported by a letter of credit issued pursuant to the Revolving Credit Facility, in a principal amount not in excess of the stated amount of such letter of credit;
(k)    [Reserved];
(l)    unsecured reimbursement obligations in respect of standby letters of credit issued in the ordinary course of business for the Issuer or any other Subsidiary so long as only the Issuer or any Guarantor (other than PropCo) is obligated to reimburse the issuer thereof in the case of any drawing;
(m)    Indebtedness owing to the Issuer or any other Subsidiary; provided that any Indebtedness of a Guarantor owing to the Issuer or any Subsidiary that is not a Guarantor shall be subordinated in right of payment to such Guarantor’s obligations under the Indenture;
(n)    Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(o)    Indebtedness in respect of non-speculative Swap Agreements relating to the business or operation of such Guarantor; and
(p)    reimbursement obligations incurred in the ordinary course of business.
Notwithstanding the foregoing, PropCo may not incur or guarantee any Indebtedness pursuant to the foregoing clauses (a) – (p), other than additional Parity Lien Obligations incurred pursuant to clauses (a), (b) or (h) and Indebtedness incurred pursuant to clauses (xvii), (xii), (xiv), (xv) and (xvi) (and refinancings thereof that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such amendment, extension, renewal, refinancing or replacement)) that are permitted pursuant to Section 3.6.
For purposes of this Section 3.13, in the event that any Indebtedness of a Guarantor meets the criteria of more than one of the clauses above, the Issuer, in its sole discretion, will classify, and may reclassify, such Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses, and the Indebtedness of a Guarantor may be divided and classified and reclassified into more than one of the types of Indebtedness of a Guarantor described above. In addition, for purposes of calculating compliance with this Section 3.13, in no event will the amount of any Indebtedness of a Guarantor be required to be included more than once despite the fact more than one Person is or becomes liable with respect to any related Indebtedness (for example, and for the avoidance of doubt, in the case where more than one Guarantor incurs Indebtedness or otherwise becomes liable for such Indebtedness, the amount of such Indebtedness shall only be included once for purposes of such calculations).
SECTION 3.14.    Statement by Officers as to Default. The Issuer shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events of which it is aware that would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
SECTION 3.15.    Master Leases and Other Leases.
Each of Issuer and PropCo shall duly and punctually perform, observe and comply with each Master Lease. Without the consent of the Holders of at least two-thirds of the aggregate principal amount of the Notes then outstanding, Issuer and PropCo shall not alter, amend, modify, supplement, change the terms of, grant a forbearance, waiver, release or consent under, assign, transfer, pledge, terminate or accept a surrender or termination of any Master Lease. No rent payable under any Master Lease shall be collected more than one month in advance. Neither Issuer nor PropCo shall enter into any new lease or sublease with respect to any Designated Real Estate Asset (each, a “New Lease”) without the consent of the Holders of at least two-thirds of the aggregate principal amount of the Notes then outstanding. Each New Lease shall be on commercially reasonable terms and shall provide that it is subordinate to the applicable Mortgage. In the event that any New Lease is executed in accordance with the terms of this Section 3.15, such New Lease shall not be altered, modified, supplemented, changed, assigned, transferred, pledged, terminated or surrendered without the consent of the Holders of at least two-thirds of the aggregate principal amount of the Notes then outstanding.
SECTION 3.16.    Operation and Maintenance of Properties. Each of the Issuer and PropCo shall (i) operate and maintain each Designated Real Estate Asset in a first-class manner (and in all material respects consistent with the manner in which such Designated Real Estate Asset is operated and maintained as of the Issue Date), ordinary wear and tear and damage caused by casualty and condemnation excepted, (ii) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a material adverse effect, (iii) use the standard of care typical in its industry in the operation and maintenance of its facilities, (iv) comply, in all material respects, with the terms and conditions of all Material Real Property Documents, leases, license agreements and concession agreements relating to any Designated Real Estate Asset and easements, rights-of-way and other matters appearing on title to any Designated Real Estate Asset, and (v) not enter into, modify, amend, terminate, surrender or assign any Material Real Property Document without the consent of the Holders of least two-thirds of the aggregate principal amount of the Notes then outstanding. Each Designated Real Estate Asset shall be self-managed by Issuer pursuant to the terms of the applicable Master Lease.
SECTION 3.17.    Compliance with Laws and Insurance Requirements. The Issuer and each of the Guarantors shall comply with, and cause each Designated Real Estate Asset to be operated in compliance with all laws, orders, writs, injunctions, decrees and Governmental Approvals applicable to it or to its business or property or the Designated Real Estate Assets, except in such instances in which (a) such law, order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a material adverse effect. Neither Issuer nor PropCo will petition, request or take any legal or administrative action that seeks to amend, supplement or modify any Governmental Approval in any material respect, unless such amendment, supplement or modification would not reasonably be expected to result in a material adverse effect on the applicable Designated Real Estate Asset or the use, operation, ownership or value thereof. If any Governmental Approval related to any Designated Real Estate Asset shall be rescinded, terminated, cancelled, repealed, invalidated, suspended, enjoined, amended, modified or supplemented (each, a “Governmental Approval Modification”) and such occurrence would reasonably be expected to have a material adverse effect on the applicable Designated Real Estate Asset or the use, operation, ownership or value thereof, then Issuer and/or PropCo, as applicable, shall (i) promptly and diligently apply for and use commercially reasonable efforts to obtain a replacement Governmental Approval on terms and conditions that are similar in all material respects to those of such Governmental Approval as in effect prior to such Governmental Approval Modification, or (ii) take such other lawful action as shall be reasonably necessary to mitigate or eliminate such material adverse effect. The Issuer shall operate each Designated Real Estate Asset in accordance with applicable insurance policies required by Section 12.4 of this Indenture.
SECTION 3.18.    Casualty or Condemnation.
Issuer shall promptly give the Collateral Trustee written notice of any (a) casualty or loss or (b) known actual or threatened commencement of any condemnation or eminent domain proceeding affecting any Designated Real Estate Asset or any portion thereof, and Issuer shall deliver to the Collateral Trustee copies of any and all material papers served in connection with such condemnation or eminent domain proceeding. To the extent commercially reasonable under the circumstances, Issuer and PropCo will diligently pursue in all material respects all rights and remedies under any insurance policy, agreement or other document with respect to any compensation which Issuer or PropCo has determined by to be available to Issuer or PropCo in connection therewith. All Net Available Cash on account of any Casualty Event shall be applied in accordance with Section 3.5(a)(iii) above as though such Net Available Cash from such Casualty Event was Net Available Cash from an Asset Disposition.
SECTION 3.19.    Material Notices. Issuer shall promptly deliver to Collateral Trustee copies of any and all notices of a material default or breach which is reasonably expected to result in a termination of any Material Real Property Document.
SECTION 3.20.    Title to the Designated Real Estate Assets. Issuer and PropCo will warrant and defend fee title to each Designated Real Estate Asset and every part thereof vested in PropCo, subject only to Permitted Encumbrances.
SECTION 3.21.    Alterations. Without the consent of the Holders of at least two-thirds of the aggregate principal amount of the Notes then outstanding, neither Issuer nor PropCo shall make any alteration to any improvements at any Designated Real Estate Asset to the extent such alteration (a) could reasonably be expected to have a material adverse effect on such applicable Designated Real Estate Asset or the use, operation, ownership or value thereof, or (b) would adversely affect any structural component of such Designated Real Estate Asset or any material utility or HVAC system contained in such Designated Real Estate Asset.
Article IV.    

CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 4.1.    Consolidation, Merger or Sale of Assets.
(a)    The Issuer shall not consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties or assets to any Person, unless:
(i)    the corporation formed by such consolidation or into which the Issuer is merged or the Person which acquires by conveyance or transfer the Issuer’s properties or assets substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume, by supplemental indenture executed and delivered to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on the Notes and the performance or observance of every covenant of this Indenture on the Issuer’s part to be performed or observed and shall pursuant to supplements to the Security Documents take such action as may be required to assume the obligations of the Issuer thereunder and maintain the perfection of the Liens securing the Parity Lien Obligations;
(ii)    the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article IV and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with; and
(iii)    immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing.
(b)    Upon any consolidation or merger, or any conveyance or transfer of all or substantially all of the Issuer’s properties and assets in accordance with this Section 4.1, the successor corporation formed by such consolidation or into which the Issuer is merged or to which such conveyance or transfer is made will succeed to, and be substituted for, the Issuer under this Indenture with the same effect as if the successor corporation had been named as the Issuer in this Indenture, and the predecessor shall be released from all obligations and covenants under this Indenture and the Notes. In the event of any such conveyance or transfer, the Issuer as the predecessor may be dissolved, wound up and liquidated at any time thereafter;
(c)    Unless the Note Guarantee of a Guarantor is permitted to be released in connection with such transaction pursuant to Article X, no Guarantor shall consolidate with or merge into any other Person or convey or transfer all or substantially all of its properties or assets to any Person unless:
(i)    the other Person is the Issuer or another Guarantor, or
(ii)    either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person shall be a corporation, limited liability company or limited partnership organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and expressly assumes by a supplemental indenture all of the obligations of the Guarantor under its Note Guarantee, the Indenture and the Security Documents, as applicable, and shall pursuant to supplements to the Security Documents take such action as may be required to assume the obligations of such Guarantor thereunder and maintain the perfection of the Liens securing the Parity Lien Obligations and immediately after giving effect to the transaction, no Default has occurred and is continuing;
(iii)    the transaction does not violate Section 3.5; or
(iv)     the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article IV and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
Notwithstanding anything to the contrary in this Section 4.1, while PropCo holds any Collateral, it shall not merge, consolidate or transfer all of substantially all of its assets to the Issuer of any of its Subsidiaries other than PropCo.
SECTION 4.2.    Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of all or substantially all of the Issuer’s properties and assets in accordance with the provisions of Section 4.1, the successor corporation formed by such consolidation or into which the Issuer is merged or to which such conveyance or transfer is made will succeed to, and be substituted for, the Issuer with the same effect as if the successor corporation had been named as the Issuer, and the predecessor shall be released from all obligations and covenants under this Indenture and the Notes. In the event of any such conveyance or transfer, the Issuer as the predecessor may be dissolved, wound up and liquidated at any time thereafter.
Article V.    

REDEMPTION OF SECURITIES
SECTION 5.1.    Notices and Opinions to Trustee.
(a)    If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 5.7, it must furnish to the Trustee, at least 30 days but not more than 60 days before a date fixed for redemption (the “Redemption Date”) (or such longer period permitted by Section 5.3(a), an Officer’s Certificate setting forth:
(i)    the clause of this Indenture pursuant to which the redemption shall occur;
(ii)    the Redemption Date;
(iii)    the principal amount of Notes to be redeemed; and
(iv)    the redemption price.
If the redemption price is not known at the time such notice is to be given, the actual redemption price shall be set forth in an Officer’s Certificate of the Issuer delivered to the Trustee no later than two (2) Business Days prior to the redemption date.
SECTION 5.2.    Selection of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, as certified to the Trustee by the Issuer, and by lot, in compliance with the requirements of DTC, or if the Notes are not so listed or such exchange prescribes no method of selection and such Notes are not held through DTC or DTC prescribes no method of selection, on a pro rata basis, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided, however, that no Note of $2,000 in aggregate principal amount or less shall be redeemed in part.
SECTION 5.3.    Notice of Redemption.
(a)    At least 30 days but not more than 60 days before a Redemption Date, the Issuer shall send or cause to be sent, by electronic delivery (in the case of book-entry interests) or by first class mail postage prepaid, a notice of redemption to each Holder (with a copy to the Trustee) whose Notes are to be redeemed at the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, except that redemption notices may be delivered electronically (in the case of book-entry interests) or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII or XI.
(b)    The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:
(i)    the Redemption Date;
(ii)    the redemption price;
(iii)    if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(iv)    the name and address of the Paying Agent;
(v)    that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(vi)    that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(vii)    the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(viii)    that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(ix)    any conditions to redemption.
(c)    If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of a Global Note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the Redemption Date, unless the Issuer defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of them called for redemption.
(d)    At the Issuer’s request, the Trustee will give the notice of redemption in the Issuer’s name and at their expense; provided, however, that the Issuer has delivered to the Trustee, at least five (5) Business Days (or such shorter period as may be agreed to by the Trustee) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 5.3, an Officer’s Certificate requesting that the Trustee give such notice, which shall include a form of the notice setting forth the information provided in the preceding paragraphs of this Section 5.3.
SECTION 5.4.    Effect of Notice of Redemption. Once notice of redemption is sent in accordance with Section 5.3, Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price (subject to any conditions set forth in such notice). Notice of redemption may, at the Issuer’s option and discretion, be subject to the satisfaction of any conditions precedent contained in such notice of redemption. Notice of any redemption of the Notes may be subject to the satisfaction (or waiver by the Issuer in the Issuer’s discretion) of any conditions precedent to such redemption specified in the applicable notice. If such redemption is subject to satisfaction of one or more conditions precedent, the Redemption Date may be delayed, in the Issuer’s discretion, until such time as any or all such conditions shall be satisfied (or waived by the Issuer in the Issuer’s discretion), or such redemption may not occur and the notice of redemption may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in the Issuer’s discretion) by the applicable Redemption Date (whether the original Redemption Date or the Redemption Date so delayed). The Issuer shall provide written notice to the Trustee prior to the close of business two Business Days prior to the Redemption Date if any such redemption has been rescinded or delayed, and upon receipt the Trustee shall provide such notice to each Holder of the Notes in the same manner in which the notice of redemption was given.
SECTION 5.5.    Deposit of Redemption Price. Prior to 10:00 a.m. (Eastern Time) on the redemption date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of, and accrued interest if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued interest if any, on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes.
SECTION 5.6.    Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the Issuer will issue and, upon receipt of an Issuer Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $2,000 or integral multiple of $1,000 in excess thereof.
SECTION 5.7.    Optional Redemption.
(a)    At any time, and from time to time, prior to May 15, 2022, the Issuer may redeem the Notes in whole or in part, at its option, at a redemption price equal to the greater of:
(i)    100% of the principal amount of the Notes to be redeemed; and
(ii)    the excess of:
(A)    the present value at such redemption date of (1) the redemption price of the Note at May 15, 2022 (such redemption price being set forth in the table under clause (e) below) plus (2) all required interest payments due on the Note through May 15, 2022 (excluding interest paid prior to the redemption date and accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(B)    the principal amount of the Note,
(iii)    plus, in each case, any accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
In the event of any redemption pursuant to this clause (a), the Issuer shall calculate or cause the calculation of the redemption price, and the Trustee shall have no duty to calculate or verify the calculation thereof.
(b)    At any time prior to May 15, 2022, the Issuer may on one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price equal to 108.750% of the principal amount plus accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) in an amount of up to the amount of net cash proceeds received by or contributed to the Issuer from one or more Equity Offerings; provided that (%3) at least 65% of the aggregate principal amount of Notes originally issued under this Indenture (including Additional Notes but excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption, and (%3) notice of such redemption is given within 90 days of the date of the closing of such Equity Offering. The Trustee shall select the Notes to be redeemed in the manner described under Sections 5.1 through 5.6.
(c)    [Reserved].
(d)    Except pursuant to paragraphs (a) and (b) of this Section 5.7, the Notes will not be redeemable at the Issuer’s option prior to May 15, 2022.
(e)    On or after May 15, 2022, the Issuer may redeem all or a part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on May 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:
Year
Percentage
2022
104.375
%
2023
102.188
%
2024 and thereafter
100.000
%

(f)    Unless the Issuer defaults in the payment of the redemption price, on and after the Redemption Date (whether the original Redemption Date or the Redemption Date so delayed), interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date. On or prior to any redemption date, we are required to deposit with the paying agent money sufficient to pay the redemption price of, and accrued and unpaid interest to, but not including, the redemption date, on the Notes to be redeemed on such redemption date. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee by lot or another method in accordance with the applicable procedures of DTC.
(g)    Any redemption pursuant to this Section 5.7 shall be made pursuant to the provisions of Sections 5.1 through 5.6.
SECTION 5.8.    Mandatory Redemption. The Issuer is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes.
Article VI.    

DEFAULTS AND REMEDIES
SECTION 6.1.    Events of Default.
(a)    Each of the following is an “Event of Default”:
(i)    default in any payment of interest on any Note when due and payable, continued for 30 days;
(ii)    default in payment of principal of, or premium, if any, on, the Notes at maturity;
(iii)    failure to comply for 90 days after written notice by the Trustee or by the Holders of 25% in principal amount of the outstanding Notes with any agreement or obligation for the benefit of the Holders of the Notes contained in this Indenture or, subject to the requirements and exceptions set forth in Section 12.1, to the extent such failure to comply affects in any material respect the enforceability, validity, perfection or priority of the Liens on a material portion of the Collateral, the Security Documents;
(iv)    default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Significant Subsidiaries (or the payment of which is Guaranteed by the Issuer or any of its Significant Subsidiaries) other than Secured Indebtedness owed to the Issuer or a Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the date hereof, which default:
(A)    is caused by a failure to pay principal of such Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods) provided in such Indebtedness (“payment default”); or
(B)    results in the acceleration of such Indebtedness prior to its stated final maturity (“cross acceleration provision);
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness for which there has been a payment default or the maturity of which has been so accelerated and, in each case, remains unpaid, aggregates $100.0 million or more;
(v)    the entry of an order for relief in respect of any petition filed against any of the Issuer or a Significant Subsidiary under any Bankruptcy Code, or the entry of a decree or order by a court having competent jurisdiction in the premises in respect of any petition filed or action taken against the Issuer or a Significant Subsidiary looking to reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future federal or state statute, law or regulation, resulting in the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or a Significant Subsidiary or of any substantial part of its property, or resulting in the winding-up or liquidation of its affairs, all without the consent or acquiescence of the Issuer or a Significant Subsidiary, and the continuance of any such decree or order is unstayed and in effect for a period of 60 consecutive days;
(vi)    the filing of a petition for relief under any Bankruptcy Code by any of the Issuer or a Significant Subsidiary, or the consent, acquiescence or taking of any action by any of the Issuer or a Significant Subsidiary in support of a petition filed by or against it looking to reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future federal or state statute, law or regulation, or the appointment, with the consent of the Issuer or a Significant Subsidiary, of any receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or a Significant Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer or a Significant Subsidiary in furtherance of any such action;
(vii)    (A) any Note Guarantee by a Guarantor that is a Significant Subsidiary or any Note Guarantee by PropCo (regardless of whether PropCo is a Significant Subsidiary) ceases to be in full force and effect, other than in accordance with the terms of this Indenture or (B) a Guarantor that is a Significant Subsidiary or PropCo (regardless of whether PropCo is a Significant Subsidiary) denies or disaffirms its obligations under its Note Guarantee, other than in accordance this Indenture; or
(viii)    (%3) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by the Issuer or any Guarantor not to be, a valid and perfected Lien on any Collateral having an aggregate fair value of $25.0 million or more, with the priority required by the relevant Security Document, in each case for any reason other than (1) by reason of express release pursuant to the terms of this Indenture or the terms of any Security Document or (2) as a result of the sale or other disposition of the applicable Collateral to a Person that is not the Issuer or a Guarantor in a transaction not prohibited under this Indenture, or (%5) the Issuer or any Guarantor shall contest the validity or enforceability of its obligations under any Security Document in writing or deny in writing that it has any further liability under any Security Document to which it is a party.
(b)    Notwithstanding the foregoing, a default under Section 6.1(a)(iii) will not constitute an Event of Default until the Trustee or the Holders of 25% in principal amount of the outstanding Notes notify the Issuer (with a copy to the Trustee, if given by the Holders) of the default and the Issuer does not cure such default within the time specified in Section 6.1(a)(iii) after receipt of such notice.
SECTION 6.2.    Acceleration.
(a)    If an Event of Default (other than an Event of Default described in Section 6.1(a)(v) or (vi) with respect to the Issuer) occurs and is continuing, the Trustee by written notice to the Issuer or the Holders of at least 25% in principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of, premium, if any, and accrued and unpaid interest on all the Notes to be due and payable. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately.
In the event of a declaration of acceleration of the Notes because an Event of Default described in Section 6.1(a)(iv) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the event of default or payment default triggering such Event of Default pursuant to Section 6.1(a)(iv) shall be remedied or cured, or waived by the holders of the Indebtedness, or the Indebtedness that gave rise to such Event of Default shall have been discharged in full, in each case, within 30 days after the declaration of acceleration with respect thereto and if:
(i)    the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction; and
(ii)    any other existing Events of Default, except nonpayment of principal, premium, if any, or interest, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
(b)    If an Event of Default described in Section 6.1(a)(v) or (vi) with respect to the Issuer occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
(c)    Any Default or Event of Default for the failure to comply with the time periods prescribed under Section 3.12, or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the filing, furnishing or delivery of any such report or document required by Section 3.12 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified herein.
SECTION 6.3.    Other Remedies. If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Notes 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 contractual remedy under this Indenture.
SECTION 6.4.    Waiver of Past or Existing Defaults. The Holders of a majority in principal amount of the outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, may waive, by their consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), past or existing Defaults or Events of Default and its consequences under this Indenture except a Default or Event of Default in the payment of the principal of, or premium, if any, or interest, if any, on a Note and rescind any acceleration with respect to the Notes and its consequences if such rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
SECTION 6.5.    Control by Majority. Subject to certain restrictions set forth herein and the Collateral Trust Agreement, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee pursuant to this Indenture or of exercising any trust or power conferred on the Trustee pursuant to this Indenture. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trustee determines is unduly prejudicial to the rights of any Holder or that would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any such action hereunder, the Trustee and the Collateral Trustee shall be entitled to indemnification satisfactory to the Trustee and the Collateral Trustee against all losses, liabilities, costs and expenses that may be caused by taking or not taking such action.
SECTION 6.6.    Limitation on Suits. Subject to Section 6.7, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(a)    such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(b)    Holders of at least 25% in principal amount of the outstanding Notes have requested in writing the Trustee to pursue the remedy;
(c)    such Holders have offered in writing the Trustee security or indemnity satisfactory to the Trustee against any loss, liability, cost or expense;
(d)    the Trustee has not complied with such request within 60 days after the receipt of the written request and the offer of security or indemnity; and
(e)    the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (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 6.7.    Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.6), the contractual right expressly set forth in this Indenture of any Holder to receive payment of principal of, premium, if any, or interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed or provided for in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be amended without the consent of such Holder.
SECTION 6.8.    Collection Suit by Trustee. If an Event of Default specified in Section 6.1(a)(i) or (ii) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount then due and owing (together with interest on any unpaid interest, if any, to the extent lawful) and the amounts provided for in Section 7.7.
SECTION 6.9.    Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and 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 the Holders allowed in any judicial proceedings relative to the Issuer, its Subsidiaries or its or their respective creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, compromise, adjustment or composition affecting the Notes 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.
SECTION 6.10.    Priorities.
(a)    Subject to the provisions of the Collateral Trust Agreement, if the Trustee collects any money or property pursuant to this Article VI it shall pay out the money or property in the following order:
FIRST: to the Trustee and the Collateral Trustee for amounts due to each of them under this Indenture;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or premium, if any, and interest if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal of, or premium, if any, and interest respectively; and
THIRD: to the Issuer, or to the extent the Trustee collects any amount for any Guarantor, to such Guarantor.
(b)    The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least fifteen (15) days before such record date, the Issuer shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11.    Undertaking for Costs. 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 or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes.
Article VII.    

TRUSTEE
SECTION 7.1.    Duties of Trustee.
(a)    If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)    Except during the continuance of an Event of Default:
(i)    the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture, the Notes, the Security Documents and the Collateral Trust Agreement and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)    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 need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein). However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)    The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)    this paragraph does not limit the effect of paragraph (b) of this Section 7.1;
(ii)    the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)    the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5.
(d)    Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e)    No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request or direction of any Holders of Notes, unless such Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, losses, expenses and liabilities which might be incurred by it in compliance with such request or direction. The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder. The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee.
(f)    The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(g)    Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 7.2.    Rights of Trustee. Subject to Section 7.1:
(a)    The Trustee may conclusively rely upon any document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b)    Notwithstanding anything to the contrary contained herein, before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on any Officer’s Certificate, Opinion of Counsel, resolution of the Board of Directors of the Issuer, or other request, notice or direction delivered to it pursuant to the terms of this Indenture. The Trustee may consult with counsel of its selection and the written or verbal advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)    The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d)    The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e)    Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f)    The Trustee will 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 unless such Holders have offered to the Trustee an indemnity or security reasonably satisfactory to it against the losses, liabilities, costs and expenses that might be incurred by it in compliance with such request or direction.
(g)    Subject to Section 7.1, 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 Paying Agent, Registrar or Custodian.
(h)    Subject to Section 7.1, the Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless the Issuer or Holders of not less than 25% in aggregate principal amount of the Notes then outstanding notify the Trustee thereof by written notice of such event sent to the Trustee or the Corporate Trust Office in accordance with Section 13.1, and such notice references the Notes and this Indenture.
(i)    Subject to Section 7.1(a), 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 paper or document, but the Trustee, may, but shall not be required to, make further inquiry or investigation into such facts or matters as it may see fit.
(j)    In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(k)    The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(l)    The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with Officer’s Certificates, directions, requests, and any other matters or directions pursuant to this Indenture.
(m)    In no event shall the Trustee be responsible or liable for any 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.
(n)    The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(o)    The Trustee shall have no obligation to pursue any action that is not in accordance with applicable law.
SECTION 7.3.    Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any respective Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or Custodian may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11. Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Bonds.
SECTION 7.4.    Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.5.    Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is actually known to a Trust Officer of the Trustee, the Trustee shall send to Holders a notice of the Default or Event of Default within 90 days after the occurrence of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of (or premium, if any, on) or interest, if any, on the Notes, the Trustee may withhold such notice if it in good faith determines that the withholding of such notice is in the interests of the Holders.
SECTION 7.6.    [Reserved].
SECTION 7.7.    Compensation and Indemnity.
(a)    The Issuer shall pay to the Trustee and Collateral Trustee from time to time such compensation as mutually agreed to in writing for its acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and Collateral Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. All amounts set forth in the separate fee letter entered into prior to the date hereof are deemed reasonable. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s and the Collateral Trustee’s agents and counsel.
(b)    The Issuer shall indemnify the Trustee and Collateral Trustee against any and all losses, damages, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, the Security Documents and the Collateral Trust Agreement, including the costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of enforcing this Indenture against the Issuer (including this Section 7.7) and defending itself against any claim (whether asserted by the Issuer, any Holder or any other Person) or liability in connection with the exercise or performance of any of its rights, powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The Trustee and Collateral Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee and Collateral Trustee to so notify the Issuer will not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee and Collateral Trustee shall cooperate in the defense. Each of the Trustee and Collateral Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without their consent, which consent will not be unreasonably withheld.
(c)    When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(a)(v) or (vi) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Code.
(d)    The Issuer’s obligations set forth in this Section 7.7 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee hereunder.
SECTION 7.8.    Replacement of Trustee.
(a)    A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.8.
(b)    The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(i)    the Trustee fails to comply with Section 7.10;
(ii)    the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Code;
(iii)    a custodian or public officer takes charge of the Trustee or its property; or
(iv)    the Trustee becomes incapable of acting.
(c)    If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d)    If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction, at the expense of the Issuer, for the appointment of a successor Trustee.
(e)    If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f)    A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.7. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7 will continue for the benefit of the retiring Trustee.
SECTION 7.9.    Successor Trustee by Merger. Any Person into which the Trustee or any successor to it in the trusts created by this Indenture shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee or any such successor to it shall be a party, or any Person to which the Trustee or any successor to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any Notes shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 7.10.    Eligibility; Disqualification. There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
SECTION 7.11.    Security Documents; Collateral Trust Agreement.
(a)    By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee to execute and deliver the Collateral Trust Agreement and any Security Document in which the Trustee is named as a party, including any Collateral Trust Agreement or Security Document executed after the Issue Date, and to appoint the Collateral Trustee to act on behalf of the Notes Secured Parties under the Collateral Trust Agreement and any Security Document. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee is (%3) expressly authorized to make the representations attributed to Holders in any such agreements and (%3) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Collateral Trust Agreement or any Security Document, the Trustee shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
(b)    Whenever the Trustee is required or requested to deliver any direction to the Collateral Trustee under the terms of this Indenture, the Collateral Trust Agreement and any Security Document in its capacity as Authorized Representative or otherwise, the Trustee shall do so in accordance with the provisions of this Indenture and shall be vested with the rights, privileges and immunities set forth in this Indenture.
Article VIII.    

DEFEASANCE AND DISCHARGE PRIOR TO MATURITY
SECTION 8.1.    Option to Effect Defeasance. The Issuer may, at its option and at any time, elect to have either Section 8.2 or 8.3 applied to all outstanding Notes upon compliance with the conditions set forth in this Article VIII.
SECTION 8.2.    Defeasance and Discharge. The Issuer may elect, at any time, to fully discharge all or any specified portion of the Issuer’s and the Guarantors’ obligations, and the Issuer will be deemed to have paid and discharged the entire Indebtedness represented by the Notes or, at the Issuer’s option, any specified payment obligation and to have satisfied all of the Issuer’s and the Guarantors’ other obligations under the Notes, the Note Guarantees, this Indenture and the Security Documents insofar as the Notes are concerned (and all Note Guarantees, and Liens on the Collateral securing the Notes and the Note Guarantees, shall be released and terminated) (and the Trustee and the Collateral Trustee, as applicable, at the expense of the Issuer, shall execute instruments as reasonably requested by the Issuer acknowledging the same) (“Defeasance”), subject to the following which will survive until otherwise terminated or discharged under this Indenture:
(a)    the rights of Holders of outstanding Notes to receive payments in respect of all or any defeased portion of the principal of and any premium and/or interest on the Notes when payments are due;
(b)    the Issuer’s obligations under Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9 and 3.2;
(c)    the rights, powers, trusts, duties and immunities of the Trustee hereunder; and
(d)    this Article VIII.
Subject to compliance with this Section 8.2, the Issuer may exercise its option under this Section 8.2 notwithstanding the prior exercise of their option under Section 8.3.
SECTION 8.3.    Conditions to Defeasance. In order to exercise Defeasance under this Section 8.3:
(a)    the Issuer shall have irrevocably deposited or caused or directed to be irrevocably deposited with the Trustee 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 the Notes, (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 one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient to pay and discharge, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate delivered to the Trustee, without consideration of any reinvestment, and which shall be applied by the Trustee to pay and discharge, all or any specific portion of the principal of and any premium and interest on the Notes on the respective interest payment date and/or stated maturities, in accordance with the terms of this Indenture and the Notes;
(b)    the Issuer shall have advised the Trustee in writing of the payment or payments of the Notes to which such deposit is to be applied;
(c)    the Issuer shall have delivered to the Trustee an opinion of counsel reasonably acceptable to the Trustee stating that,
(i)    the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or
(ii)     since the date of the Indenture, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such opinion of counsel shall confirm that, subject to customary assumptions and exclusions, the Holders or beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Defeasance, and will be subject to U.S. 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;
(d)    such Defeasance shall not result in the trust arising from any such deposit constituting an investment company within the meaning of the Investment Company Act, unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder; and
(e)    an Officer’s Certificate and an Opinion of Counsel (which opinion of counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to legal defeasance or covenant defeasance, as the case may be, have been complied with
Upon compliance with the foregoing, the Trustee shall execute instrument(s) as reasonably requested by the Issuer acknowledging the Defeasance of all of the Issuer’s and the Guarantors’ obligations under the Notes. Such Defeasance shall be effective on and after the date that the conditions set forth in clauses (a) through (e) above are satisfied.
SECTION 8.4.    Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
The Trustee shall, subject to the provisions of this Indenture, hold in trust any money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3, and any money received by the Trustee as payment of principal or interest in respect of such U.S. Government Obligations, and shall apply all money, in accordance with the provisions of the Notes and this Indenture, to the payment, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such deposit (including any money to be received by the Trustee as principal or interest in respect of such U.S. Government Obligations) was made with the Trustee; provided, however, that, if the Trustee shall at any time hold in trust pursuant to this Section 8.4, as a result of a deposit made pursuant to this Article VIII, any money in excess of the amount required to make the payments to which such deposit (including any money to be received by the Trustee as principal or interest in respect of any U.S. Government Obligations included within such deposit) was to be applied, the Trustee shall, upon the Issuer’s request, pay to the Issuer such excess money.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.3 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 outstanding Notes.
SECTION 8.5.    Repayment to the Issuer. Subject to applicable escheatment laws, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of (and premium, if any) or interest on any Note 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 Issuer, or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note will thereafter, as an unsecured general creditor, be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
SECTION 8.6.    Reinstatement. If the Trustee or Paying Agent is unable to apply any money in accordance with this Article VIII with respect to any Notes by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes from which the Issuer and the Guarantors’ have been discharged or released pursuant to Section 8.2 shall be revived and reinstated as though no deposit had occurred pursuant to this Article VIII with respect to such Notes, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 8.4 with respect to such Notes in accordance with this Article VIII; provided, however, that if the Issuer or any Guarantor makes any payment of principal of, or any premium or interest on, any such Note following the reinstatement of their obligations, the Issuer or such Guarantor shall be subrogated to the rights (if any) of the Holders of such Notes to receive such payment from the money so held in trust by the Trustee or Paying Agent.
Article IX.    

AMENDMENTS
SECTION 9.1.    Without Consent of Holders. Notwithstanding Section 9.2 of this Indenture, the Issuer and the Trustee (together with any other party whose consent is required pursuant to the Collateral Trust Agreement or the Security Documents) may amend, supplement or otherwise modify the Note Documents without the consent of any Holder (and, upon request from the Issuer, the Trustee shall request that the Collateral Trustee enter into any such amendment, supplement or other modification to the applicable Collateral Trust Agreement or Security Documents) to:
(i)    cure any ambiguity, omission, mistake, defect, error or inconsistency;
(ii)    provide for the assumption by a successor Person of the obligations of the Issuer or any Guarantor under any Note Document;
(iii)    provide for uncertificated Notes in addition to or in place of certificated Notes (provided, that any uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code);
(iv)    add to the covenants or provide for a Note Guarantee for the benefit of the Holders or surrender any right or power conferred upon the Issuer or any Subsidiary;
(v)    make any change that does not adversely affect in any material respect the rights of any Holder;
(vi)    at the Issuer’s election, comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA, if such qualification is required;
(vii)    make such provisions as necessary (as determined in good faith by the Issuer) for the issuance of Additional Notes;
(viii)    provide for any Subsidiary of the Issuer or any other Person to provide a Note Guarantee, to add Note Guarantees with respect to the Notes, to add security to or for the benefit of the Notes, or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with respect to or securing the Notes when such release, termination, discharge or retaking is provided for under this Indenture, the Security Documents or the Collateral Trust Agreement, as applicable;
(ix)    evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee or Collateral Trustee pursuant to the requirements hereof, or to provide for the accession by the Trustee or the Collateral Trustee to any Note Document or evidence and provide for the acceptance and appointment under any Collateral Trust Agreement or Security Document of a successor party thereto pursuant to the requirements thereof;
(x)    make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities law, and (ii) such amendment does not adversely affect the rights of Holders to transfer Notes in any material respect;
(xi)    mortgage, pledge, hypothecate or grant any other Lien in favor of the Collateral Trustee for its benefit and the benefit of the Trustee, the Holders of the Notes and the holders of any other Parity Lien Secured Obligations, as additional security for the payment and performance of all or any portion of the Parity Lien Secured Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted to or for the benefit of the Trustee or the Collateral Trustee pursuant to this Indenture, any of the Collateral Trust Agreement, the Security Documents or otherwise;
(xii)    provide for the release of Collateral from the Lien, or the subordination of such Lien, pursuant to this Indenture, the Security Documents and the Collateral Trust Agreement when permitted or required by the Security Documents, this Indenture and/or the Collateral Trust Agreement;
(xiii)    (i) secure any Parity Lien Debt or Parity Lean Indebtedness or Term Loan/Notes Secured Obligations to the extent permitted under this Indenture, the Security Documents and the Collateral Trust Agreement, (ii) join any party to any Collateral Trust Agreement to the extent permitted or required by the terms thereof or by the terms of this Indenture or any other Parity Lien Document, or (iv) supplement any schedules to any Security Document to the extent permitted or required by the terms thereof or by the terms of this Indenture or any other Parity Lien Document;
(xiv)    comply with the rules of any applicable securities depositary; or
(xv)    conform the text of this Indenture, any Note Guarantee, the Notes or any other Note Document to any provision of the “Description of Notes” section of the Offering Memorandum as evidenced by an Officer’s Certificate.
SECTION 9.2.    With Consent of Holders.
(a)    Except as provided in Section 9.1 and Section 9.2(b), the Issuer and the Trustee may amend, supplement or otherwise modify the Note Documents (and, in the case of any Security Document or Collateral Trust Agreement, upon a written request from the Issuer, the Trustee shall request that the Collateral Trustee enter into any such amendment, supplement or other modification), with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding and issued under this Indenture (including consents obtained in connection with a purchase of or tender offer for such Notes) (in addition to any other consents required under the terms of the Collateral Trust Agreement or the Security Documents from the parties thereto), and any Default or Event of Default thereunder or compliance with any provision of the Note Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of or tender offer for such Notes).
(b)    Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not, with respect to any such Notes held by a non-consenting Holder:
(i)    reduce the principal amount of such Notes whose Holders must consent to an amendment;
(ii)    reduce the stated rate of or extend the stated time for payment of interest on any such Note;
(iii)    amend, change or modify in any material respect the obligation of the Issuer to make and consummate a Change of Control Offer after the occurrence of a Change of Control;
(iv)    reduce the principal of, or extend the Stated Maturity of, any such Note;
(v)    reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed to an earlier time, in each case as set forth in Section 5.7; provided that this Section 9.2 shall not apply to changes to any requirements to give notice by a certain time;
(vi)    make any such Note payable in currency other than that stated in such Note;
(vii)    make any change in the contractual right expressly set forth in this Indenture of any Holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor, or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Notes;
(viii)    waive a Default or Event of Default with respect to the nonpayment of principal, premium, if any, or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration); or
(ix)    make any change in the amendment or waiver provisions which require the Holders’ consent described in clauses (i) – (viii) above.
In addition, without the consent of the Holders of at least two-thirds in aggregate principal amount of the Notes then outstanding, no amendment or waiver may release all or substantially all of the Collateral from the Lien of this Indenture and the Security Documents with respect to the Notes (other than in accordance with the terms of the Security Documents and Collateral Trust Agreement as in effect on the Issue Date or as otherwise provided in Section 12.2).
It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment of any Note Document, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment under this Indenture by any Holder of Notes given in connection with a tender or other purchase of such Holder’s Notes will not be rendered invalid by such tender or other purchase.
SECTION 9.3.    [Reserved].
SECTION 9.4.    Revocation and Effect of Consents and Waivers. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms, and thereafter binds every Holder.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described in this Section 9.4, or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
SECTION 9.5.    Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Issuer Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6.    Trustee to Sign Amendments. Upon the request of the Issuer, and upon the filing with the Trustee of evidence of the consent of the required Holders of Notes as aforesaid in Section 9.2, if such consent of the Holders of Notes is required, and upon receipt by the Trustee of the documents described in this Section 9.6 and Section 13.3, the Trustee shall join (or, if applicable and requested in writing by the Issuer in the case of any amendment, supplement or other modification to any Collateral Trust Agreement or Security Document, request that the Collateral Trustee join) with the Issuer and the Guarantors, if applicable, in the execution of any amended or supplemental indenture or amendment, supplement or other modification to any Note Document unless such amended or supplemental indenture or amendment or supplement to any Note Document adversely affects the Trustee’s own rights, duties or immunities under any Note Document or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture or amendment, supplement or other modification to any Note Document. After an amendment or supplement under Section 9.1 or 9.2, as applicable, becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment or supplement. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement under Section 9.1 or 9.2, as applicable. In executing any amended or supplemental indenture, the Trustee shall receive and (subject to Sections 7.1 and 7.2) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.3, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture, and is valid, binding and enforceable against the Issuer or any Guarantor, as the case may be, in accordance with its terms. In requesting that the Collateral Trustee join in executing any amendment or supplement to any Note Document, the Trustee shall receive and (subject to Sections 7.1 and 7.2) shall be fully protected in conclusively relying upon, such certificates as are required by Section 2.04 of the Collateral Trust Agreement
Article X.    

GUARANTEE
SECTION 10.1.    Guarantee. Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees (the “Note Guarantees”), as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes, the Trustee and the Collateral Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes, fees, expenses, indemnities and all other Obligations and liabilities of the Issuer under this Indenture (including without limitation interest accruing after the filing of any petition or application in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.7) (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”).
To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Guaranteed Obligations, and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever, or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired, or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) subject to Section 9.2, any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) subject to Section 10.2(b), the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 10.2, Article VIII or Article XI. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest, if any, on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy, insolvency or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee on behalf of itself, the Holders and the Collateral Trustee an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing, and (ii) accrued and unpaid interest, if any, on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition or application in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of the Note Guarantee.
Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee, the Collateral Trustee or the Holders in enforcing any rights under this Section 10.1.
SECTION 10.2.    Limitation on Liability; Termination, Release and Discharge.
(a)    Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor under its Note Guarantee will be limited to the maximum amount that would, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, not render the obligations of such Guarantor under its Note Guarantee subject to avoidance under applicable law as a fraudulent conveyance, fraudulent transfer or unjust preference, including provisions of the Bankruptcy Code.
(b)    Any Note Guarantee of a Guarantor shall be released:
(i)    upon the consummation of any transaction not prohibited by this Indenture (including by way of sale, disposition or other transfer of Equity Interests of such Guarantor or merger, consolidation, liquidation or dissolution) that results in such Guarantor ceasing to be a Subsidiary of the Issuer;
(ii)    except for a Subsidiary that continues to Guarantee any other then outstanding Series of Parity Lien Obligations, in connection with any sale, disposition or other transfer of all or substantially all of the assets of such Guarantor (including by way of merger or consolidation), if the sale, disposition or other transfer is made in compliance with this Indenture;
(iii)    upon the release of the Guarantee by such Subsidiary of the Revolving Credit Facility and each other then outstanding Series of Parity Lien Secured Obligations and of that Guarantor (other than with respect to PropCo and other in connection with a repayment in full of such other Series of Priority Secured Obligations); and
(iv)    upon payment in full of the principal of, and accrued and unpaid interest and premium, if any, on, the Notes; In addition to the foregoing, the Note Guarantees of all Guarantors will be released upon a Defeasance of this Indenture in accordance with Article VIII or Satisfaction and Discharge of this Indenture in accordance with Article XI.
SECTION 10.3.    Right of Contribution. Each Guarantor hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share of any payment made on the obligations under its Note Guarantee, such Guarantor shall be entitled to seek and receive contribution from and against the Issuer or any other Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall, in no respect, limit the obligations and liabilities of each Guarantor to the Trustee and the Holders, and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.
SECTION 10.4.    No Subrogation. Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Issuer or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Issuer on account of the Guaranteed Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obligations.
Article XI.    

SATISFACTION AND DISCHARGE
SECTION 11.1.    Satisfaction and Discharge. This Indenture (including the Notes and the Note Guarantees) will cease to be of further effect as to the Notes (this being referred to herein as “Satisfaction and Discharge”) (except as to any surviving rights of registration of transfer of Notes expressly provided for in this Indenture and any rights to receive payments of interest on the Notes and rights of the Trustee to compensation, reimbursement and indemnification and the Issuer’s obligations with respect thereto expressly provided for herein) and all Note Guarantees, and all Liens on the Collateral securing the Notes and the Note Guarantees, will be released and terminated, and the Trustee, on demand of and at the Issuer’s expense, will execute instruments as reasonably requested by the Issuer acknowledging Satisfaction and Discharge, when:
(a)    either:
(i)    all Notes that have been authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been replaced or paid, and (B) Notes for whose payment money has been either deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust or paid to any State or the District of Columbia pursuant to its unclaimed property or similar laws) have been delivered to the Trustee for cancellation; or
(ii)    all Notes that have not been so delivered to the Trustee for cancellation (A) have become due and payable, (B) will become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of the notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has irrevocably deposited or caused or directed to be irrevocably deposited with the Trustee, as trust funds in trust for this purpose, (i) money in an amount, or (ii) 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 one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient to pay and discharge, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate delivered to the Trustee, without consideration of any reinvestment, and which shall be applied by the Trustee to pay and discharge, the entire Indebtedness on the Notes not delivered to the Trustee for cancellation, for principal, premium, if any, and accrued and unpaid interest, if any, to, but not including, the date of such deposit (in the case of Notes that have become due and payable) or maturity or redemption, as the case may be;
(b)    the Issuer has paid or caused to be paid all other sums payable by the Issuer under this Indenture; and;
(c)    the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent in this Indenture relating to the Satisfaction and Discharge have been complied with.
Upon compliance with the foregoing, the Trustee shall execute such instrument(s) as reasonably requested by the Issuer acknowledging the Satisfaction and Discharge of all of the Issuer’s and the Guarantors’ obligations under the Notes, subject to such provisions that shall survive pursuant to the terms of this Indenture.
Notwithstanding the Satisfaction and Discharge, the obligations of the Issuer and the Guarantors to the Trustee and, if money has been deposited with the Trustee pursuant to Section 11.1(a)(ii), the obligations of the Trustee under Section 8.5, this Section 11.1 and Section 11.2 shall survive.
SECTION 11.2.    Application of Trust Money. Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 11.1 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for the payment of which such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and the Guarantors’ obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 11.1; provided that if the Issuer has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
Article XII.    

COLLATERAL AND SECURITY
SECTION 12.1.    Security. The obligations of the Issuer with respect to the Notes, the obligations of PropCo under its Note Guarantee, all other Parity Lien Obligations and the performance of all other obligations of the Issuer, the Guarantors and the Issuer’s other Subsidiaries under the Parity Lien Documents will be secured equally and ratably by first-priority Liens in the Collateral granted to the Collateral Trustee for the benefit of the Parity Lien Secured Parties.
(a)    Each of the Issuer and PropCo shall use their commercially reasonable efforts (i) to transfer the Designated Real Estate Assets to PropCo, and (ii) to perfect all security interests in the Collateral, in each case on or after the Issue Date.
(b)    In the event a fully executed and notarized Deed and/or Mortgage has not been delivered by PropCo and recorded with respect to each Designated Real Estate Asset, or all actions necessary to perfect a security interest in other Collateral in favor of Collateral Trustee have not been completed, in each case, on or prior to the Issue Date (other than the pledge and perfection of the security interest in all equity interests of PropCo, which must in all events be completed on the Issue Date), the Issuer shall use commercially reasonable efforts to deliver to the Collateral Trustee within 180 days of the date of this Indenture, as such date may be extended to the extent any such actions cannot be completed within such timeframe as a result of the occurrence of the COVID-19 pandemic (including without limitation, as a result of any notary services being unavailable) after the use of commercially reasonable efforts to do so or without undue burden or expense or risk to human health, with respect to each Designated Real Estate Asset the following:
(i)    a fully executed and notarized Deed transferring the fee interest of such Designated Real Estate Asset to PropCo and any associated transfer forms required therewith;
(ii)    a fully executed and notarized Mortgage encumbering the fee interest of PropCo in such Designated Real Estate Asset, together with such UCC-1 financing statements and other fixture filings as the Collateral Trustee shall reasonably deem appropriate with respect to such Designated Real Estate Asset; and
(iii)    evidence that counterparts of the Deed and Mortgage (and such other documents referenced in clause (ii) of this Section 12.1(b)) for such Designated Real Estate Asset have been filed or recorded (or have been delivered to the title insurance company and are in form suitable for filing or recording) in all filing or recording offices that the Collateral Trustee may deem reasonably necessary or desirable in order to create and perfect a valid and subsisting Lien on the property described therein in favor of the Collateral Trustee.
(c)    Issuer shall use commercially reasonable efforts to deliver to the Collateral Trustee within 180 days of the date of this Indenture, as such date may be extended to the extent any such actions cannot be completed within such timeframe as a result of the occurrence of the COVID-19 pandemic (including without limitation, as a result of any notary services being unavailable) after the use of commercially reasonable efforts to do so or without undue burden or expense or risk to human health, with respect to each Designated Real Estate Asset the following:
(i)    one or more additional Deeds or corrective Deeds with respect to such Designated Real Estate Asset in form and substance reasonably satisfactory to Collateral Trustee in order to properly transfer to PropCo the fee interest in the entirety of such Designated Real Estate Asset owned by Issuer immediately prior to the consummation of the transactions contemplated by this Indenture;
(ii)    any amendment or amendment and restatement of any Mortgage previously delivered by PropCo to Collateral Trustee with respect to such Designated Real Estate Asset in form and substance reasonably satisfactory to Collateral Trustee in order to correct or modify the legal description contained therein, add or modify law provisions, make such other modifications reasonably requested by Collateral Trustee to correct any errors contained therein or as otherwise necessary for the Title Company to issue the title insurance for such Designated Real Estate Asset referenced in clause (iii) below;
(iii)    a fully paid policy of title insurance for such Designated Real Estate Asset which (A) upon the recording of the respective Mortgage, will insure the Mortgage to be a valid and subsisting Lien on such Designated Real Estate Asset described therein, free and clear of all Liens, except Permitted Encumbrances, (B) shall be in a form and issued by a reputable title company (the “Title Company”), (C) shall be in an amount at least equal to the fair market value of such Designated Real Estate Asset as reasonably determined by the Issuer and/or PropCo, and (D) include such customary and commercially reasonable endorsements or affirmative insurance as customary, and Issuer and PropCo shall deliver to the Title Company such affidavits and indemnities as shall be reasonably required to induce the Title Company to issue the policy or policies contemplated by this clause (iii);
(iv)    an American Land Title Association/National Society of Professional Surveyors (ALTA/NSPS) form of survey by a duly registered and licensed land surveyor for which all necessary fees have been paid by Issuer or Propco dated a date reasonably satisfactory, certified to the Collateral Trustee and the Title Company in a manner reasonably satisfactory to the Title Company;
(v)    a zoning compliance report for which all necessary fees have been paid by Issuer or Propco, which includes a current zoning verification letter from the applicable municipality, copies of all certificates of occupancy for such Designated Real Estate Asset and confirms that there are no open building, zoning, fire code or other violations with respect to such Designated Real Estate Asset and that such Designated Real Estate Asset is in conformance with all applicable zoning laws; and
(vi)    to the extent not delivered on the Issue Date in connection with the respective Mortgages referenced in Section 12(a) above and/or to the extent requested by Collateral Agent in connection with any such amendment or amendment and restatement of any Mortgage previously delivered by PropCo referenced in Section 12(c)(ii) above, a written opinion from local counsel in the state in which such Designated Real Estate Asset is located with respect to the enforceability of the applicable Mortgage and such amendment or amendment and restatement, as applicable, and the creation and perfection of Liens created by such Mortgage and such amendment or amendment and restatement, as applicable, and any related fixture filings, in customary form and substance and subject to customary assumptions, limitations and qualifications, reasonably satisfactory to the Collateral Trustee; and
(vii)    evidence of payment by Issuer or PropCo of all local counsel fees, title insurance premiums, search and examination charges, transfer, deed, mortgage, filing, recording and other taxes, fees and related charges required for the recordation of the Deeds and Mortgages and issuance of the title insurance policies referenced in clause (iii) above.
(d)    For the avoidance of doubt, it will not be a default, Default or Event of Default, if PropCo has not delivered to the Collateral Trustee the items set forth in clauses (b) or (c) of this Section 12.1 with respect to any Mortgaged Property within 180 days of the date of this Indenture, subject to extension as described above, as a result of the occurrence of the COVID-19 pandemic (including without limitation, as a result of any notary services being unavailable) provided that Issuer and PropCo have used commercially reasonable efforts to provide such items.
(e)    Concurrent with any Asset Disposition with respect to any Designated Real Estate Asset permitted pursuant to Section 3.5 of this Indenture for which some or all of the Net Available Cash is being used to acquire Real Estate Assets pursuant to Section 3.5(a)(iii)(B) or (C) of this Indenture, PropCo shall designate such to be acquired Real Estate Assets to be mortgaged pursuant to this Section 12.1 (each, a “Substitute Designated Real Estate Asset”), and PropCo shall use commercially reasonable efforts to execute and deliver to the Collateral Trustee within 90 days after Asset Disposition, as such date may be adjusted to the extent any such actions are not or cannot be completed within such timeframe as a result of the occurrence of the COVID-19 pandemic (including without limitation, as a result of any notary services being unavailable) after the use of commercially reasonable efforts to do so or without undue burden or expense or risk to human health, a Mortgage, the other items set forth in clauses (b) and (c) of this Section 12.1 relating to such Substitute Designated Real Estate Asset, mutatis mutandis, a representation that PropCo has conducted customary environmental due diligence with respect to such Substitute Designated Real Estate Asset and that it is not aware of any environmental liabilities affecting such Substitute Designated Real Estate Asset, and such other items as the Collateral Trustee shall reasonably request, and thereupon such Substitute Designated Real Estate Asset shall constitute Collateral and be a Designated Real Estate Asset for all purposes of this Indenture.
SECTION 12.2.    Collateral Trust Agreement. The Holders of the Notes have, and by accepting a Note, each Holder will be deemed to have, appointed the Collateral Trustee to act as its agent under the Collateral Trust Agreement and the Security Documents. The Holders of the Notes have, and by accepting a Note, each Holder will be deemed to have, authorized the Collateral Trustee to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Trust Agreement and the Security Documents, together with any other incidental rights, power and discretions; and (ii) execute each Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Collateral Trustee on its behalf.
SECTION 12.3.    Release of Liens in Respect of Notes.
The Collateral Trustee’s Parity Liens upon the Collateral shall no longer secure the Notes outstanding under this Indenture or any other Obligations under this Indenture, and the right of the holders of the Notes and such Obligations to the benefits and proceeds of the Collateral Trustee’s Parity Liens on the Collateral will terminate and be discharged:
(a)    upon satisfaction and discharge of this Indenture pursuant to Section 11.1 of this Indenture;
(b)    upon a Legal Defeasance or Covenant Defeasance of the Notes pursuant to Sections 8.2 and 8.3 of this Indenture;
(c)    upon payment in full and discharge of all Notes outstanding under this Indenture and all Obligations that are outstanding, due and payable under this Indenture at the time the Notes are paid in full and discharged; or
(d)    in whole or in part, with the consent of the holders of the requisite percentage of Notes in accordance with the provisions pursuant to Article IX of this Indenture.
In each case, the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such release complies with this Section 12.3 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
SECTION 12.4.    Collateral Access Agreement. On the date of this Indenture, the Collateral Trustee, on behalf of the Holders of Notes and all other Parity Lien Secured Parties, shall enter into the Collateral Access Agreement with the Issuer, the Guarantors and the Credit Agreement Agent to provide that in the event that, following an Event of Default, the Collateral Trustee shall obtain possession or physical control of any real estate Collateral or the collateral trustee shall sell or otherwise dispose of any real estate Collateral to any third party (each a “Third Party Purchaser”), during the applicable Access Period, the Credit Agreement Agent will have an irrevocable, non-exclusive right to have access to, and a royalty-free, rent-free right to use, such real estate Collateral for the purpose of (i) arranging for and effecting the sale or disposition of any Credit Agreement Collateral, including the packaging and other preparation of such Credit Agreement Collateral for sale or disposition; (ii) selling the Credit Agreement Collateral (by public auction, private sale,  a “store closing,” “going out of business” sale or other sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may include augmented Inventory of the same type sold in the Issuer’s or any Guarantor’s business); (iii) storing or otherwise dealing with the Credit Agreement Collateral; or (iv) taking any action necessary to complete the packaging, storage, sale or disposal (whether in bulk, in lots or to customers in the ordinary course of business or otherwise), transportation or shipping and/or removal of, in any lawful manner inventory or any other item of Credit Agreement Collateral, in each case, without the involvement of or interference by the collateral trustee or any other Parity Lien Secured Party or liability to the collateral trustee or any other Parity Lien Secured Party. 
SECTION 12.5.    Relative Rights.
Nothing in the Note Documents will:
(a)    impair, as to the Issuer and the holders of the Notes, the obligation of the Issuer to pay principal of, premium and interest and liquidated damages, if any, on the Notes in accordance with their terms or any other obligation of the Issuer or any Guarantor;
(b)    affect the relative rights of holders of Notes as against any other creditors of the Issuer or any Guarantor (other than holders of other Parity Liens);
(c)    restrict the right of any holder of Notes to sue for payments that are then due and owing (but not enforce any judgment in respect thereof against any Collateral);
(d)    restrict or prevent any holder of Notes or other Parity Lien Obligations, the Collateral Trustee or any Parity Lien Representative from exercising any of its rights or remedies upon a Default or Event of Default; or
(e)    restrict or prevent any holder of Notes or other Parity Lien Obligations, the Collateral Trustee or any Parity Lien Representative from taking any lawful action in an Insolvency or Liquidation Proceeding.
SECTION 12.6.    Further Assurances; Maintenance of Properties; Compliance with Laws; Insurance.
The Issuer and each of the Guarantors shall undertake, or cause to be undertaken, all acts and things that may be required, or that the Collateral Trustee from time to time may reasonably request, to assure and confirm that the Collateral Trustee holds, for the benefit of the Parity Lien Secured Parties, duly created and enforceable and perfected Liens upon the Collateral (including any property or assets that are acquired or otherwise become, or are required by any Parity Lien Debt Document to become, Collateral after the Notes are issued), in each case, as contemplated by, and with the Lien priority required under, the Parity Lien Debt Documents.
Upon the reasonable request of the Collateral Trustee or any Parity Lien Debt Representative at any time and from time to time, the Issuer and each of the Guarantors shall promptly execute, acknowledge and deliver such Security Documents, instruments, certificates, notices and other documents, and take such other actions as may be reasonably required, or that the Collateral Trustee may reasonably request, to create, perfect, protect, assure or enforce the Liens and benefits intended to be conferred, in each case as contemplated by the Parity Lien Debt Documents for the benefit of the Parity Lien Secured Parties.
The Issuer and the Guarantors shall:
(a)    keep their properties adequately insured at all times by financially sound and reputable insurers;
(b)    maintain such other insurance, to such extent and against such risks (and with such deductibles, retentions and exclusions), including fire and other risks insured against by extended coverage and coverage for acts of terrorism, as is customary with companies in the same or similar businesses operating in the same or similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by them;
(c)    maintain such other insurance as may be required by law;
(d)    maintain title insurance on all real property Collateral insuring the Collateral Trustee’s Lien on that property, subject only to exceptions to title approved by the Collateral Trustee; and
(e)    maintain such other insurance as may be required by the Security Documents.
The Issuer and the Guarantors shall furnish to the Collateral Trustee full information as to their property and liability insurance carriers. Holders of Parity Lien Obligations, as a class, shall be named as additional insureds, with a waiver of subrogation, on all insurance policies of the Issuer and the Guarantors and the Collateral Trustee shall be named as loss payee, with 30 days’ notice of cancellation or material change, on all property and casualty insurance policies of the Issuer and the Guarantors.
Article XIII.    

MISCELLANEOUS
SECTION 13.1.    Notices. Any notice or communication to the Issuer or the Trustee shall be sufficiently given if written and (a) delivered in person or (b) mailed by first class mail (certified or registered, return receipt requested) or (c) sent by facsimile transmission, or (d) sent by overnight air courier guaranteeing next-day delivery, or (e) sent by electronic transmission, in each case addressed as follows:
if to the Issuer:
Nordstrom, Inc.
1700 7th Avenue
Seattle, Washington 98101
Facsimile No.: (206) 303-4419
Attention: Ann Munson Steines

in each case, with a copy to:
Lane Powell PC
1420 Fifth Avenue, Suite 4200
P.O. Box 91302
Seattle, Washington 98111-9402
Facsimile No.: (206) 223-7107
Attention: Michael E. Morgan
if to the Trustee, at its Corporate Trust Office::
Wells Fargo Bank, National Association
Corporate Trust Services
Corporate Debt
333 S. Grand Avenue, 5th Floor, Suite 5A
Los Angeles, California 90071
Attention: Nordstrom, Inc. Administrator
The Issuer or the Trustee, by notice to the others, may designate additional or different addresses and/or facsimile numbers for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; three Business Days after being deposited in the mail, postage prepaid, if mailed by first class mail (certified or registered, return receipt requested); upon acknowledgment of receipt, if transmitted by facsimile; the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery; and at the time delivered, if sent by electronic transmission.
Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or sent by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar or, with respect to Global Notes, to the extent permitted or required by the applicable procedures of DTC, sent electronically. Failure to deliver, mail, transmit or send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
If a notice or communication is delivered, mailed, transmitted or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails or sends a notice or communication to Holders, they will mail or send a copy to the Trustee and each agent at the same time.
Where this Indenture provides for notice in any manner, 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 on such waiver.
In case it shall be impracticable to give notice in the manner provided above, including by reason of a suspension of regular mail service, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 13.2.    [Reserved].
SECTION 13.3.    Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take or refrain from taking any action under this Indenture or the Notes (, ), the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee:
(i)    an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4) stating that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with, as applicable; and
(ii)    an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with, as applicable.
SECTION 13.4.    Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i)    a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions relating thereto;
(ii)    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;
(iii)    a statement that, in the opinion of each such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied or complied with, as applicable; and
(iv)    a statement as to whether or not, in the opinion of each such person, such covenant or condition has been satisfied or complied with, as applicable.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
SECTION 13.5.    When Notes Disregarded. In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.
SECTION 13.6.    Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may make reasonable rules and set reasonable requirements for their functions.
SECTION 13.7.    Legal Holidays. A “Legal Holiday” is a Saturday, Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York, New York or the state of the place of payment. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 13.8.    Governing Law. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13.9.    Jurisdiction. The Issuer and the Guarantors agree that any suit, action or proceeding against the Issuer or any Guarantor brought by any Holder or the Trustee arising out of, or based upon, this Indenture, the Note Guarantee or the Notes may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Issuer and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Note Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Issuer and the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Issuer or the Guarantors, as the case may be, are subject by a suit upon such judgment.
SECTION 13.10.    Waivers of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 13.11.    USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “USA PATRIOT Act”), the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as each may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
SECTION 13.12.    No Recourse Against Others. No director, officer, manager, employee, incorporator or direct or indirect partner, member or stockholder, past, present or future, of the Issuer, any Guarantor or any successor entity of any of them, as such, will have any liability for any of the obligations of the Issuer or any Guarantor under the Notes or this Indenture or any other Note Document, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
SECTION 13.13.    Successors. All agreements of the Issuer and each Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.14.    Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile, pdf or other electronic transmission, shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic means, shall be deemed to be their original signatures for all purposes.
SECTION 13.15.    Table of Contents; Headings. The table of contents, cross-reference table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof, and shall not modify or restrict any of the terms or provisions hereof.
SECTION 13.16.    Force Majeure. In no event shall the Trustee or Collateral Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God or other recognized public emergency, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee and Collateral Trustee shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 13.17.    Severability. In case any provision in this Indenture or in the Notes 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 13.18.    Appointment of Co-Trustee.
(a)    Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the trust may at the time be located, the Trustee shall have the power and may execute and deliver all instruments necessary to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the trust, and to vest in such Person or Persons, in such capacity and for the benefit of the Holders, such title to the trust, or any part thereof, and subject to the other provisions of this Indenture, such powers, duties, obligations, rights and trusts as the Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under this Indenture and no notice to Holders of the appointment of any co-trustee or separate trustee shall be required under this Indenture.
(b)    Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(1)    all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Trustee;
(2)    no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(3)    the Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c)    Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection or rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the Trustee. Every such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may at any time constitute the Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee
[Signatures on following pages]

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the date and year first written above.
NORDSTROM, INC.


By:    /s/ Anne L. Bramman    
Name: Anne L. Bramman
Title: Chief Financial Officer    


GUARANTORS:

NIHC, INC.


By:    /s/ Andrew C. Vickers    
Name: Andrew C. Vickers
Title: President    


NORDSTROM CARD SERVICES, INC.


By:    /s/ Sheryl Garland    
Name: Sheryl Garland
Title: Secretary    


TRUNK CLUB, INC.


By:    /s/ Sheryl Garland    
Name: Sheryl Garland
Title: Secretary    


NORDSTROM REAL ESTATE HOLDINGS, LLC


By:    /s/ Ann Munson Steines    
Name: Ann Munson Steines
Title: Secretary    



NORDSTROM CANADA RETAIL, INC.


By:    /s/ Sheryl Garland    
Name: Sheryl Garland
Title: Secretary    

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee


By:    /s/ Maddy Hughes    
Name: Maddy Hughes
Title: Vice President    



WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Trustee


By:    /s/ Maddy Hughes    
Name: Maddy Hughes
Title: Vice President
Exhibit A
[FORM OF FACE OF GLOBAL RESTRICTED NOTE]
No. [ ˜ ]
Principal Amount $[ ˜ ] [as revised by the Schedule of Increases and Decreases in Global Note attached hereto]
CUSIP NO. [ ˜ ]
ISIN NO. [ ˜ ]

NORDSTROM, INC.
Nordstrom, Inc., a Washington corporation, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of Dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on May 15, 2025.
Interest Payment Dates: May 15 and November 15, commencing on November 15, 2020
Record Dates: May 1 and November 1
Additional provisions of this Note are set forth on the other side of this Note.

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
NORDSTROM, INC.

By:         
Name:
Title:

TRUSTEE CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes referred to in the within-mentioned Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee


By:        

Authorized Signatory

Dated: _______________

[FORM OF REVERSE SIDE OF NOTE]
NORDSTROM, INC.
8.750% Senior Secured Notes due 2025
[Applicable Restricted Notes Legend]
[Depositary Legend, if applicable]
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture.
1.Interest
Nordstrom, Inc., a Washington corporation, promises to pay interest on the principal amount of this Note at 8.750% per annum from April [16], 2020 until maturity. The Issuer will pay interest semi-annually in arrears every May 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided, that the first Interest Payment Date shall be November 15, 2020. The Issuer shall pay interest on overdue principal at the rate specified herein, and it shall pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Interest on the Notes will be computed on the basis of a 360-day year comprised of 12 30-day months. Each interest period will end on (but not include) the relevant Interest Payment Date.
2.    Method of Payment
By no later than 10:00 a.m. (Eastern Time) on the date on which any principal of, premium, if any, or interest, if any, on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, if any, and interest, if any, when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding May 1 and November 1 at the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3 of the Indenture. The principal of, and premium, if any, and interest on the Notes shall be payable at the office or agency of the Paying Agent or Registrar designated by the Issuer maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register, or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest, if any) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). If an Interest Payment Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
3.    Paying Agent and Registrar
The Issuer initially appoints Wells Fargo Bank, National Association (the “Trustee”) to act as the Registrar and Paying Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer agent.
4.    Indenture
The Issuer issued the Notes under an Indenture, dated as of April [16], 2020 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Issuer, the Guarantors party thereto and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail.
5.    Guarantees
To guarantee the due and punctual payment of the principal, premium, if any, and interest (including post-filing or post-petition interest) on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have guaranteed (and future guarantors, jointly and severally with the Guarantors, will fully guarantee) such obligations on a senior secured basis pursuant to the terms of the Indenture.
6.    Optional Redemption
(a)    At any time, and from time to time, prior to May 15, 2022, the Issuer may redeem the Notes in whole or in part, at its option, at a redemption price equal to the greater of:
(1)    100% of the principal amount of such Notes redeemed; and
(2)    the excess of:
(i)    the present value at such redemption date of (i) the redemption price of the Note at May 15, 2022 (such redemption price being set forth in the table under clause (e) below) plus (ii) all required interest payments due on the Note through May 15, 2022 (excluding interest paid prior to the redemption date and accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(ii)    the principal amount of the Note,
(3)    plus, in each case, any accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
In the event of any redemption pursuant to this clause (a), the Issuer shall calculate or cause the calculation of the redemption price, and the Trustee shall have no duty to calculate or verify the calculation thereof.
(b)    At any time prior to May 15, 2022, the Issuer may, on one or more occasions, redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price equal to 108.750% of the principal amount plus accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) in an amount of up to the amount of net cash proceeds received by, or contributed to, the Issuer from one or more Equity Offerings; provided that (1) at least 65% of the aggregate principal amount of Notes originally issued under the Indenture (including Additional Notes but excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption, and (2) notice of such redemption is given within 90 days of the date of the closing of such Equity Offering. The Trustee shall select the Notes to be redeemed in the manner described under Sections 5.1 through 5.6 of the Indenture.
(c)    Except pursuant to clauses (a) and (b) of this paragraph 6, the Notes will not be redeemable at the Issuer’s option prior to May 15, 2022.
(d)    On or after May 15, 2022, the Issuer may redeem all or a part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on May 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:
Year
Percentage
2022
104.375%
2023
102.188%
2024 and thereafter
100.000%

(e)    Unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date. On or prior to any redemption date, we are required to deposit with the paying agent money sufficient to pay the redemption price of, and accrued and unpaid interest to, but not including, the redemption date, on the Notes to be redeemed on such redemption date. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee by lot or another method in accordance with the applicable procedures of DTC.
(f)    Any redemption pursuant to this paragraph 6 shall be made pursuant to the provisions of Sections 5.1 through 5.6 of the Indenture.
The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
7.    Repurchase Provisions
If a Change of Control occurs, except as provided in Section 3.11(c) of the Indenture or unless the Issuer exercised its right to redeem all the outstanding Notes pursuant to Section 5.7 of the Indenture, the Issuer will be required to make an offer to each Holder to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 principal amount in excess thereof) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of repurchase. Within 30 days following the date of any Change of Control, or, at the Issuer’s option, prior to any Change of Control but after the public announcement of the Change of Control, the Issuer shall mail (or in the case of Holders of interests in Global Notes, transmit electronically in accordance with the applicable procedures of DTC) a notice to Holders of Notes (and shall provide a copy of such notice to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Notes on the date specified in the notice (the “Change of Control Payment Date”), which date shall be no earlier than 30 days and no later than 60 days from the date such notice is so mailed or transmitted, pursuant to the procedures required by this Indenture and described in such notice. The notice shall state, if so mailed or transmitted prior to the date of consummation of the Change of Control, that the offer to repurchase the Notes is conditioned on the Change of Control occurring on or prior to the Change of Control Payment Date specified in the notice.
Upon certain Asset Dispositions, the Issuer may be required to use the Excess Proceeds from such Asset Dispositions to offer to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes (or, to the extent that such Excess Proceeds are from Specified Sale/Leaseback Proceeds, 103% of the principal amount of the Notes), plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in Sections 1.1(a) and (c) of the Indenture and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer may, in its sole discretion, make an Asset Disposition Offer pursuant to Section 3.5 of the Indenture prior to the time that the aggregate amount of Excess Proceeds exceeds $25.0 million.
8.    Denominations; Transfer; Exchange
The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning (1)  fifteen (15) days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) fifteen (15) days before an Interest Payment Date and ending on such Interest Payment Date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
9.    Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
10.    Discharge and Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Issuer at any time may terminate its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest, if any, on the Notes to redemption or maturity, as the case may be.
11.    Amendment, Supplement, Waiver
Subject to certain exceptions contained in the Indenture, the Note Documents may be amended, supplemented or otherwise modified with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding and issued under the Indenture (including consents obtained in connection with a purchase of or tender offer for such Notes) (in addition to any other consents required under the terms of the Collateral Trust Agreement or the Security Documents from the parties thereto), and any Default or Event of Default thereunder or compliance with any provision of any Note Document may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of or tender offer for such Notes). Without the consent of any Holder (and, upon request from the Issuer, the Trustee shall request that the Collateral Trustee enter into any such amendment, supplement or other modification to the applicable Collateral Trust Agreement or Security Documents), the Issuer and the Trustee (together with any other party whose consent is required pursuant to the Collateral Trust Agreement or the Security Documents) may amend, supplement or otherwise modify any Note Document as provided in the Indenture.
12.    Defaults and Remedies
If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer) occurs and is continuing, the Trustee by written notice to the Issuer or the Holders of at least 25% in principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of, premium, if any, and accrued and unpaid interest, on all the Notes to be due and payable. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may waive or rescind any such acceleration with respect to the Notes and its consequences.
13.    Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any respective Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or Custodian may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 of the Indenture.
14.    No Recourse Against Others
No director, officer, manager, employee, incorporator or direct or indirect partner, member or stockholder, past, present or future, of the Issuer, any Guarantor or any successor entity of any of them, as such, will have any liability for any of the obligations of the Issuer or any Guarantor under the Notes or the Indenture or any other Note Document or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
15.    Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
16.    Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
17.    CUSIP and ISIN Numbers
The Issuer has caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or other notices as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or other notices and reliance may be placed only on the other identification numbers placed thereon.
18.    Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Nordstrom, Inc.
1700 7th Avenue
Seattle, Washington 98101
Facsimile No.: (206) 303-4419
Attention: Ann Munson Steines
19.    Security
This Note will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture, the Security Documents and the Collateral Trust Agreement.

ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
        
(Print or type assignee’s name, address and zip code)
        
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint _________ agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:    Your Signature:     
Signature Guarantee:     
(Signature must be guaranteed)
    
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
The undersigned hereby certifies that it ☐ is / ☐ is not an Affiliate of an Issuer and that, to its knowledge, the proposed transferee ☐ is / ☐ is not an Affiliate of an Issuer.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by an Issuer or any Affiliate of an Issuer, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
(1)
☐    acquired for the undersigned’s own account, without transfer; or
(2)
☐    transferred to the Issuer; or
(3)
☐    transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or
(4)
☐    transferred pursuant to an effective registration statement under the Securities Act; or
(5)
☐    transferred pursuant to and in compliance with Regulation S under the Securities Act; or
(6)
☐    transferred pursuant to another available exemption from the registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5) or (6) is checked, the Issuer may require, prior to registering any such transfer of the Notes, in their sole discretion, such legal opinions, certifications and other information as the Issuer may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, such as the exemption provided by Rule 144 under the Securities Act.
            
Signature Guarantee:        Signature
            
(Signature must be guaranteed)        Signature
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
        
Dated:

[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES
The following increases or decreases in this Global Note have been made:
Date of Exchange
Amount of decrease in Principal Amount of this Global Note
Amount of increase in Principal Amount of this Global Note
Principal Amount of this Global Note following such decrease or increase
Signature of authorized signatory of Trustee or Notes Custodian
 
 
 
 
 

OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.11 of the Indenture, check either box:
Section 3.5 ☐           Section 3.11 ☐
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.5 or 3.11 of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$____________________________ and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased): ___________.
Date: ________ Your Signature     
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:     
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad‑15.

EXHIBIT B    
Form of Supplemental Indenture
[ ˜ ] SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of [ ˜ ], 20[ ˜ ], by and among Nordstrom, Inc., a Washington corporation (the “Issuer”), the parties that are signatories hereto as Guarantors (each a “Guaranteeing Subsidiary”) and Wells Fargo Bank, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Issuer, the Guarantors party thereto, and the Trustee have heretofore executed and delivered an indenture, dated as of April [16], 2020 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of $600,000,000 of 8.750% Senior Secured Notes due 2025 (the “Notes”) of the Issuer;
WHEREAS, the Indenture provides that each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which each Guaranteeing Subsidiary shall unconditionally guarantee, on a joint and several basis, all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Issuer, any Guaranteeing Subsidiary and the Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Guaranteeing Subsidiar[y/ies] and the Trustee mutually covenant and agree for the benefit of the Trustee and the Holders of the Notes as follows:
Article I

DEFINITIONS
SECTION 1.1.    Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals 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.
ARTICLE II    

AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1.    Agreement to be Bound. Each of the Guaranteeing Subsidiaries hereby agrees to become a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.2.    Guarantee. Each of the Guaranteeing Subsidiaries agrees, on a joint and several basis, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture.
ARTICLE III    

MISCELLANEOUS
SECTION 3.1.    Notices. All notices and other communications to each Guaranteeing Subsidiary shall be given as provided in the Indenture, at the address for the Guarantors set forth in the Indenture.
SECTION 3.2.    Merger, Amalgamation and Consolidation. Each Guaranteeing Subsidiary shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge or amalgamate with or into, another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(b) of the Indenture.
SECTION 3.3.    Release of Guarantee. The Note Guarantees hereunder may be released in accordance with Section 10.2 of the Indenture.
SECTION 3.4.    Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.5.    Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.6.    Severability. In case any provision in this Supplemental Indenture 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, and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.7.    Benefits Acknowledged. Each Guaranteeing Subsidiary’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture, and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8.    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 Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.9.    The Trustee. The Trustee does not make any representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
SECTION 3.10.    Counterparts. The parties hereto 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. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto, and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic means shall be deemed to be their original signatures for all purposes.
SECTION 3.11.    Execution and Delivery. Each Guaranteeing Subsidiary agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
SECTION 3.12.    Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
[GUARANTEEING SUBSIDIARIES],
as a Guarantor

By:        
Name:
Title:

Acknowledged by:

NORDSTROM, INC.

By:        
Name:
Title:


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

By:        
Name:
Title:

EXHIBIT C    
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
[Date]
Nordstrom, Inc.
1700 7th Avenue
Seattle, Washington 98101
Facsimile No.: (206) 303-4419
Attention: Ann Munson Steines
Wells Fargo Bank, National Association,
as Trustee and Registrar.
600 S. Fourth Street, 7th Floor
MAC: N9300-070
Minneapolis, MN 55415 Email: Bondholdercommunications@wellsfarg.com

Re: Nordstrom, Inc. (the “Issuer”)
8.750% Senior Secured Notes due 2025 (the “Notes”)
Ladies and Gentlemen:
116    In connection with our proposed sale of $[ ˜ ] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(a)    the offer of the Notes was not made to a person in the United States;
(b)    either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States, or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c)    no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d)    the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
We also hereby certify that we [are][are not] an Affiliate of an Issuer and, to our knowledge, the transferee of the Notes [is][is not] an Affiliate of an Issuer.
The Trustee and the Issuer are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings, or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,

[Name of Transferor]

By:        
Authorized Signature


            
Signature Guarantee:        Signature
            
(Signature must be guaranteed)        Signature
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.

EXHIBIT D    
Designated Real Estate Assets
1.
2400 Forest Avenue, San Jose, California 95128
2.
8465 Park Meadows Center Drive, Lone Tree, Colorado 80124
3.
1870 Redwood Highway, Corte Madera, California 94925
4.
5192 Hidalgo Street, Houston, Texas 77056
5.
2901 S Capital Of Texas Hwy, Austin, Texas 78746
6.
500 Pine Street #500, Seattle, Washington 98101
7.
5703 N. Marine Drive, Portland, Oregon 97203
8.
5050 Chavenelle Drive, Dubuque, Iowa 52002
9.
1600 S. Milken Avenue, Ontario, California 91761
10.
37599 Filbert Street, Newark, California 94560
11.
839 Commerce Drive, Upper Marlboro, Maryland 20774
12.
5497 NE 49th Avenue, Gainesville, Florida 32609