Net Short Holders. In connection with any determination as to whether the requisite Holders have (A) consented (or not consented) to any amendment, modification or waiver of any provision of this Indenture, any Security Document or any Intercreditor Agreement or any departure by the Company or any of its Restricted Subsidiaries therefrom, (B) otherwise acted on any matter related to this Indenture, the Notes, the Note Guarantees, any Security Document or any Intercreditor Agreement or (C) directed or required the Trustee or the Collateral Agent to undertake any action (or refrain from taking any action) with respect to, or under, this Indenture, the Notes, the Note Guarantees, any Security Document or any Intercreditor Agreement, any Holder (or any Affiliate of such Person (provided that for purposes of this paragraph, Affiliates shall not include Persons that are subject to customary procedures to prevent the sharing of confidential information between such Holders and such Person and such Person is managed having independent fiduciary duties to the investors or other equityholders of such Person)) (other than any Holder that is a Regulated Bank) that, as a result of its (or its Affiliates’) interest in any total return swap, total rate of return swap, credit default swap or other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract entered into pursuant to bona fide market making activities), has a net short position on the date, if any, that such Holder consents to such amendment, modification or waiver or takes an action of the type specified in clause (B) or (C) above (such later date, the “date of determination”) with respect to the Notes or with respect to any other tranche, class or series of Indebtedness for borrowed money incurred or issued by the Company or any of its Restricted Subsidiaries on such date of determination (including commitments with respect to any revolving credit facility) (each such item of Indebtedness, including the Notes, “Specified Indebtedness”) (each such Holder, a “Net Short Holder”) shall be deemed to have voted its interest as a Holder without discretion in the same proportion as the allocation of voting with respect to such matter by Holders who are not Net Short Holders (including in any plan of reorganization). For purposes of determining whether a Holder (alone or together with its Affiliates) has a “net short position” on any date of determination: (i...
Net Short Holders. (a) Any notice of Default, notice of acceleration or instruction to the Trustee or Notes Collateral Agent, as applicable, to provide a notice of Default, notice of acceleration or take any other action (or refrain from taking any other action) (a “Noteholder Direction”) provided by any one or more Holders (each a “Directing Holder”) must be accompanied by a written representation from each such Holder to the Issuers and the Trustee and Notes Collateral Agent, if applicable, that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by ben- eficial owners that are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the result- ing Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder must, at the time of providing a Noteholder Direction, covenant to provide the Issuers (with a copy to the Trustee and the Notes Collateral Agent, as applicable) with such other information as the Issuers may reasonably request from time to time in order to verify the accuracy of such Holder’s Po- sition Representation within five (5) Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is DTC or its nominee, any Position Representation or Verification Cove- nant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nomi- nee (after delivery to the Trustee and the Notes Collateral Agent of appropriate confirmation of beneficial ownership satisfactory to the Trustee and the Notes Collateral Agent), and DTC shall be entitled to con- clusively rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee or Notes Collateral Agent, as applicable. Neither the Trustee nor the Notes Collateral Agent shall have any duty whatsoever to provide this information to the Issuers or to obtain this information for the Issuers.
(b) If, following the delivery of a Noteholder Direction, but prior to the acceleration of the Notes, the Company determines in good faith that there is a reasonable basis to believe that a Di- recting Holder providing such Noteholder Direction was, at any relevant time, in breach of its Position Representation and provides to the Trustee and the Notes Collateral Agent an Officer’s Certificate...
Net Short Holders. Each amendment, supplement, waiver or modification of this Indenture, the Notes, the Note Security Documents or the Intercreditor Agreements, as well as any other request, demand, authorization, direction, notice, consent or waiver under this Indenture, shall be binding and effective as to each Net Short Holder. By acceptance of a beneficial ownership interest in the Notes, each Notes Beneficial Owner shall be deemed to have agreed to not take any action, whether consenting, affirmatively not consenting or otherwise, for any amendment, supplement, waiver or modification of this Indenture, the Notes, the Note Security Documents or the Intercreditor Agreements, or otherwise give any request, demand, authorization, direction, notice, consent or waiver under this Indenture, if it is a Net Short Holder (in each case unless otherwise agreed to by the Company). In connection with 155 1010271152v11010271152_5.doc
Net Short Holders. Each amendment, supplement, waiver or modification of this Indenture, the Notes, the Note Security Documents or the Intercreditor Agreements, as well as any other request, demand, authorization, direction, notice, consent or waiver under this Indenture, shall be binding and effective as to each Net Short Holder. By acceptance of a beneficial ownership interest in the Notes, each Notes Beneficial Owner shall be deemed to have agreed to not take any action, whether consenting, affirmatively not consenting or otherwise, for any amendment, supplement, waiver or modification of this Indenture, the Notes, the Note Security Documents or the Intercreditor Agreements, or otherwise give any request, demand, authorization, direction, notice, consent or waiver under this Indenture, if it is a Net Short Holder (in each case unless otherwise agreed to by the Company). In connection with any amendment, supplement, waiver or modification of this Indenture, the Notes, the Note
