Common use of Net Short Holders Clause in Contracts

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) derivative contracts with respect to any Specified Indebtedness and such contracts that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall be converted to the Dollar equivalent thereof by such Holder in a commercially reasonable manner consistent with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date of determination, (iii) derivative contracts in respect of an index that includes the Company or any of its Restricted Subsidiaries or any instrument issued or guaranteed by the Company or any of its Restricted Subsidiaries shall not be deemed to create a short position with respect to such Specified Indebtedness, so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness if such Holder or its Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (x) the relevant Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y) the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or (z) the Company or any of its Restricted Subsidiaries is designated as a “Reference Entity” under the terms of such derivative transaction, and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to any Specified Indebtedness if such transactions offer the Holder or its Affiliates protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Company or any of its Restricted Subsidiaries, in each case, other than as part of an index so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries, and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index. In connection with any amendment, modification or waiver of this Indenture, any Security Document or any Intercreditor Agreement, each Holder (other than any Holder that is a Regulated Bank) will be deemed to have represented to the Company, the Trustee and the Collateral Agent that it does not constitute a Net Short Holder, in each case, unless such Holder shall have notified the Company, the Trustee and the Collateral Agent prior to the requested response date with respect to such amendment, modification or waiver that it constitutes a Net Short Holder (it being understood and agreed that the Company, the Trustee and the Collateral Agent shall be entitled to rely on each such representation and deemed representation). In no event shall the Trustee or the Collateral Agent be obligated to ascertain, calculate, monitor, inquire or otherwise make any determination as to whether any Holder is a Net Short Holder. None of the Trustee nor the Collateral Agent shall have any liability to the Company, Guarantor, Holder, beneficial holder or any other person in connection with determinations related to or actions taken or deemed to be taken by Net Short Holders. In any case in which the Holder is DTC or its nominee, each beneficial owner of the Notes agrees to notify DTC if it is a Net Short Holder and DTC shall be entitled to conclusively rely thereon in delivering its consent to any amendment, modification or waiver of any provision of this Indenture, the Notes, the Note Guarantees, any Security Document or any Intercreditor Agreement. For the avoidance of doubt, each of the Trustee and the Collateral Agent shall be entitled to conclusively rely on any direction, consent or waiver delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any position representation, enforce compliance with any net short covenants, verify any statements in any delivered to it, or otherwise make calculations, investigations or determinations with respect to Net Short Holders. Neither the Trustee not the Collateral Agent shall have any liability to the Company, any Holder or any other Person in acting in good faith on a direction, consent or waiver delivered to it.

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 Parent Guarantor or any of its Restricted Subsidiaries Subsidiary 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 Parent Guarantor 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) derivative contracts with respect to any Specified Indebtedness and such contracts that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall be converted to the Dollar equivalent thereof by such Holder in a commercially reasonable manner consistent with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date of determination, (iii) derivative contracts in respect of an index that includes the Company Parent Guarantor or any of its Restricted Subsidiaries Subsidiary or any instrument issued or guaranteed by the Company Parent Guarantor or any of its Restricted Subsidiaries Subsidiary shall not be deemed to create a short position with respect to such Specified Indebtedness, so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company Parent Guarantor, the Co-Issuers and its their the Restricted Subsidiaries and any instrument issued or guaranteed by the Company Parent Guarantor, the Co-Issuers or its their the Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness if such Holder or its Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (x) the relevant Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y) the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or (z) the Company Parent Guarantor, the Co-Issuers or any of its their Restricted Subsidiaries is designated as a “Reference Entity” under the terms of such derivative transaction, and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to any Specified Indebtedness if such transactions offer the Holder or its Affiliates protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Company Parent Guarantor, the Co-Issuers or any of its their Restricted Subsidiaries, in each case, other than as part of an index so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company Parent Guarantor, the Co-Issuers and its their Restricted Subsidiaries, and any instrument issued or guaranteed by the Company Parent Guarantor, the Co-Issuers or its their Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index. In connection with any amendment, modification or waiver of this Indenture, any Security Document or any Intercreditor Agreement, each Holder (other than any Holder that is a Regulated Bank) will be deemed to have represented to the Company, Co-Issuers and the Trustee and the Collateral Agent that it does not constitute a Net Short Holder, in each case, unless such Holder shall have notified the Company, Co-Issuers and the Trustee and the Collateral Agent prior to the requested response date with respect to such amendment, modification or waiver that it constitutes a Net Short Holder (it being understood and agreed that the Company, Co-Issuers and the Trustee and the Collateral Agent shall be entitled to rely on each such representation and deemed representation). In no event shall the Trustee or the Collateral Agent be obligated to ascertain, calculate, monitor, inquire or otherwise make any determination as to whether any Holder is a Net Short Holder. None of the Trustee nor the Collateral Agent shall have any liability to the Company, Guarantor, Holder, beneficial holder or any other person in connection with determinations related to or actions taken or deemed to be taken by Net Short Holders. In any case in which the Holder is DTC or its nominee, each beneficial owner of the Notes agrees to notify DTC if it is a Net Short Holder and DTC shall be entitled to conclusively rely thereon in delivering its consent to any amendment, modification or waiver of any provision of this Indenture, the Notes, the Note Guarantees, any Security Document or any Intercreditor Agreement. For the avoidance of doubt, each of the Trustee and the Collateral Agent shall be entitled to conclusively rely on any direction, consent or waiver delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any position representation, enforce compliance with any net short covenants, verify any statements in any delivered to it, or otherwise make calculations, investigations or determinations with respect to Net Short Holders. Neither the Trustee not the Collateral Agent shall have any liability to the Company, any Holder or any other Person in acting in good faith on a direction, consent or waiver delivered to it.

Net Short Holders. In connection with any determination as (a) Any notice of Default, notice of a continuing Event of Default, notice of acceleration or instruction 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 to provide a notice of Default, notice of a continuing Event of Default, notice of acceleration or take any other action relating to a Default or Event of Default other than a payment Default or a bankruptcy or insolvency Default as described in Section 5.1(e) of the Collateral Agent to undertake Base Indenture (a “Noteholder Direction”) provided by any action (one or refrain from taking any action) with respect to, or under, this Indenture, more Holders of 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 Notes to the investors Trustee by any one or other equityholders more Holders of such Person)) the Notes (other than any Holder that is a Regulated Bank) that(each, as a result of its “Directing Holder”) must be accompanied by a written representation from each such Directing Holder delivered to the Issuer and the Trustee that such Directing Holder is not (or, in the case such Directing Holder is DTC 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 anynominee, that such Directing Holder consents is being instructed solely by beneficial owners that have represented to such amendmentHolder that they are not) Net Short (a “Position Representation”), modification or waiver or takes an action which representation, in the case of the type specified in clause (B) or (C) above (such later date, the “date of determination”) with respect a Noteholder Direction relating to the Notes delivery of a notice of Default or with respect to any other tranche, class or series notice of Indebtedness for borrowed money incurred or issued by the Company or any a continuing Event 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”) Default shall be deemed a continuing representation until the resulting Default or Event of Default is cured or otherwise ceases to have voted its interest as exist or the Notes are accelerated. (b) In addition, each Directing Holder is deemed, at the time of providing a Holder without discretion in Noteholder Direction, to covenant to provide the same proportion Issuer with such other information as the allocation Issuer may reasonably request from time to time in order to verify the accuracy of voting with respect to such matter by Holders who are not Net Short Holders Directing Holder’s Position Representation within five Business Days of request therefor (including in any plan of reorganizationa “Verification Covenant”). For purposes of determining whether a Holder (alone or together with its Affiliates) has a “net short position” on any date of determination: (i) derivative contracts with respect The Trustee shall have no duty whatsoever to any Specified Indebtedness and such contracts that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall be converted provide this information to the Dollar equivalent thereof by such Holder in a commercially reasonable manner consistent with generally accepted financial practices and based on Issuer or to obtain this information for the prevailing conversion rate Issuer. (determined on a mid-market basisc) on the date of determination, (iii) derivative contracts in respect of an index that includes the Company or any of its Restricted Subsidiaries or any instrument issued or guaranteed by the Company or any of its Restricted Subsidiaries shall not be deemed to create a short position with respect to such Specified Indebtedness, so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness if such Holder or its Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (x) the relevant Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y) the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or (z) the Company or any of its Restricted Subsidiaries is designated as a “Reference Entity” under the terms of such derivative transaction, and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to any Specified Indebtedness if such transactions offer the Holder or its Affiliates protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Company or any of its Restricted Subsidiaries, in each case, other than as part of an index so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries, and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index. In connection with any amendment, modification or waiver of this Indenture, any Security Document or any Intercreditor Agreement, each Holder (other than any Holder that is a Regulated Bank) will be deemed to have represented to the Company, the Trustee and the Collateral Agent that it does not constitute a Net Short Holder, in each case, unless such Holder shall have notified the Company, the Trustee and the Collateral Agent prior to the requested response date with respect to such amendment, modification or waiver that it constitutes a Net Short Holder (it being understood and agreed that the Company, the Trustee and the Collateral Agent shall be entitled to rely on each such representation and deemed representation). In no event shall the Trustee or the Collateral Agent be obligated to ascertain, calculate, monitor, inquire or otherwise make any determination as to whether any Holder is a Net Short Holder. None of the Trustee nor the Collateral Agent shall have any liability to the Company, Guarantor, Holder, beneficial holder or any other person in connection with determinations related to or actions taken or deemed to be taken by Net Short Holders. In any case in which the Holder is DTC or its nominee, each any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner owners of the Notes agrees to notify in lieu of DTC if it is a Net Short Holder or its nominee, and DTC shall be entitled to conclusively rely thereon on such Position Representation and Verification Covenant in delivering its consent direction to the Trustee. If the Holder of the applicable Note is a Clearing System or its nominee, any Position Representation required hereunder shall be provided by the Clearing System or its nominee or by the beneficial owner of an interest in such global notes after delivery to the Trustee of appropriate confirmation of beneficial ownership satisfactory to the Trustee. Notwithstanding anything to the contrary in this section, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of bankruptcy or similar proceedings shall not require compliance with this section. In addition, for the avoidance of doubt, this section shall not apply to any amendment, modification or waiver of any provision of this Indenture, the Notes, the Note Guarantees, any Security Document or any Intercreditor AgreementHolder that is a Regulated Bank. For the avoidance of doubt, the requirements of this section shall only apply to Noteholder Directions as defined herein and do not apply to any other directions given by Holders to the Trustee under this Indenture. (d) If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provide to the Trustee an Officers’ Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity such Directing Holder may have offered the Trustee), with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default provided, however, this shall not invalidate any indemnity or security provided by the Directing Holders to the Trustee which obligations shall continue to survive. (e) With their acquisition of the Notes, each Holder and subsequent purchaser of the Notes consents to the delivery of its Position Representation by the Trustee to the Issuer in accordance with the terms of this section. Each Noteholder and subsequent purchaser of the Notes waives any and all claims, in law and/ or in equity, against the Trustee and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this section, or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction. The Issuer hereby waives any and all claims, in law and/or in equity, against the Trustee, and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this section, or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction. For the avoidance of doubt, the Trustee will treat all Holders equally with respect to their rights under this section. In connection with the requisite percentages required under this Indenture, the Trustee shall also treat all outstanding Notes equally irrespective of any Position Representation in determining whether the requisite percentage has been obtained with respect to the initial delivery of the Noteholder Direction. The Issuer hereby confirms that any and all other actions that the Trustee takes or omits to take under this section and all fees, costs expenses, losses, claims, liabilities, and damages of the Trustee and its agents and counsel arising hereunder and in connection herewith shall be covered by the Collateral Agent Issuer’s indemnifications under this Indenture. (f) For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any direction, consent or waiver Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any position representationPosition Representation, enforce compliance with any net short covenantsVerification Covenant, verify any statements in any Officers’ Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short HoldersDerivative Instruments or otherwise. Neither the The Trustee not the Collateral Agent shall have any no liability to the CompanyIssuer, any Holder of Notes or any other Person in acting in good faith on a direction, consent or waiver delivered to itNoteholder Direction.

Net Short Holders. In connection with any determination as to whether the requisite Holders have (Aa) consented (or not consented) to any Each amendment, modification or waiver of any provision of this Indenturesupplement, 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) derivative contracts with respect to any Specified Indebtedness and such contracts that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall be converted to the Dollar equivalent thereof by such Holder in a commercially reasonable manner consistent with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date of determination, (iii) derivative contracts in respect of an index that includes the Company or any of its Restricted Subsidiaries or any instrument issued or guaranteed by the Company or any of its Restricted Subsidiaries shall not be deemed to create a short position with respect to such Specified Indebtedness, so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness if such Holder or its Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (x) the relevant Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y) the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or (z) the Company or any of its Restricted Subsidiaries is designated as a “Reference Entity” under the terms of such derivative transaction, and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to any Specified Indebtedness if such transactions offer the Holder or its Affiliates protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Company or any of its Restricted Subsidiaries, in each case, other than as part of an index so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries, and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index. In connection with any amendment, modification or waiver of this Indenture, any Security Document or any Intercreditor Agreement, each Holder (other than any Holder that is a Regulated Bank) will be deemed to have represented to the Company, the Trustee and the Collateral Agent that it does not constitute a Net Short Holder, in each case, unless such Holder shall have notified the Company, the Trustee and the Collateral Agent prior to the requested response date with respect to such amendment, modification or waiver that it constitutes a Net Short Holder (it being understood and agreed that the Company, the Trustee and the Collateral Agent shall be entitled to rely on each such representation and deemed representation). In no event shall the Trustee or the Collateral Agent be obligated to ascertain, calculate, monitor, inquire or otherwise make any determination as to whether any Holder is a Net Short Holder. None of the Trustee nor the Collateral Agent shall have any liability to the Company, Guarantor, Holder, beneficial holder or any other person in connection with determinations related to or actions taken or deemed to be taken by Net Short Holders. In any case in which the Holder is DTC or its nominee, each beneficial owner of the Notes agrees to notify DTC if it is a Net Short Holder and DTC shall be entitled to conclusively rely thereon in delivering its consent to any amendment, modification or waiver of any provision of this Indenture, the Notes, the Note GuaranteesSecurity 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 Document 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 Security Documents or the Intercreditor Agreements, or any Intercreditor Agreement. For the avoidance of doubtother request, demand, authorization, direction, notice, consent or waiver under this Indenture, each of Notes Beneficial Owner shall promptly notify the Trustee and the Collateral Agent Company in writing that it is a Net Short Holder, or shall otherwise be deemed to have represented and warranted to the Company and the Trustee that it is not a Net Short Holder. In connection with, and as a condition to, taking any action requiring the consent of, or the giving of any request, demand, authorization, direction, notice, consent or waiver by, the Holders of the requisite principal amount of Notes, each Notes Beneficial Owner taking such action shall certify to the Trustee and the Company that it is not a Net Short Holder (in each case unless otherwise agreed to by the Company). Notwithstanding the foregoing, these provisions shall in no way limit the right of any Notes Beneficial Owner or Holder to institute suit for the enforcement of payment of principal and interest of any Note of such Holder on or after the final maturity date for such principal or scheduled interest payment dates for such interest expressed in such Note. If any Notes Beneficial Owner has made an incorrect representation or warranty, deemed representation or warranty or certification with respect to not being a Net Short Holder, or has otherwise breached its covenant 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), the Company shall have the right at the sole expense of any such Person to cause such Person to (and such Person shall be obligated to) transfer any or all of its Notes to one or more transferees (which may, at the Company’s sole option, be or include any Parent, the Company or any Subsidiary); provided that (1) the Trustee shall not have any obligation to the Company or to such Notes Beneficial Owner to find such a transferee, (2) the Company shall not have any obligation to such Notes Beneficial Owner to find such a transferee or accept or consent to any such transfer to itself or any other Person and (3) the transferee (or, at its option, the Company) shall pay to such Notes Beneficial Owner concurrently with such transfer an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Notes so assigned and (y) the most recently available quoted price for such Notes (as determined by the Company in good faith, which determination shall be conclusive), in each case without interest thereon. The rights and remedies of the Company provided herein are cumulative and are not exclusive of any other rights and remedies provided to the Company at law or in equity, and the Company shall be entitled to conclusively pursue any remedy available to it against any Net Short Holder (or any Notes Beneficial Owner that the Company in good faith believes is a Net Short Holder). In no event shall the Trustee have any liability or obligation to ascertain, monitor or inquire as to whether any Person is a Net Short Holder and/or whether such Net Short Holder has delivered any related certifications under this Indenture or in connection with the Notes or if any such certifications comply with this Indenture, the Notes or any other document or agreement. It is understood and agreed that the Company and the Trustee shall be entitled to rely on each representation, deemed representation and certification made by, and covenant of, each Notes Beneficial Owner provided for in this paragraph. Notwithstanding any other provision of this Indenture, the Notes or any other document, the provisions of this paragraph shall apply and survive with respect to each Notes Beneficial Owner notwithstanding that any such Person may have ceased to be a Notes Beneficial Owner, this Indenture may have been terminated, the Notes may have been redeemed in full or the Trustee may have resigned or been removed. (b) If any amendment, supplement, waiver or modification of this Indenture, the Notes, the Note Security Documents or the Intercreditor Agreements or any other request, demand, authorization, direction, notice, consent or waiver delivered to it in accordance with under this Indenture, shall have no duty is effected in violation of Section 10.6(a) (including, without limitation, as a result of such amendment, supplement, waiver or modification having been consented to inquire as to or investigate the accuracy of any position representation, enforce compliance with any net short covenants, verify any statements in any delivered to it, or otherwise make calculations, investigations or determinations with respect to by a Net Short Holders. Neither the Trustee not the Collateral Agent shall have any liability to the Company, any Holder or any such other Person in acting in good faith on a request, demand, authorization, direction, notice, consent or waiver delivered having been given by a Net Short Holder), and assuming all Net Short Holders complied with Section 10.6(a) and Notes owned by all Net Short Holders were disregarded and deemed not to itbe Outstanding (in each case unless otherwise agreed to by the Company), (1) if such amendment, supplement, waiver or modification, or such other request, demand, authorization, direction, notice, consent or waiver, shall have received the requisite percentage of Holders under this Indenture, the Notes, the Note Security Documents or the Intercreditor Agreements without taking into account any action, whether consenting, affirmatively not consenting or otherwise, of any Net Short Holder (in each case unless otherwise agreed to by the Company), then such amendment, supplement, waiver or modification, or such other request, demand, authorization, direction, notice, consent or waiver shall nonetheless be binding and effective, and shall not be null or void, as to each Holder and (2) in all other cases, such amendment, supplement, waiver or modification, or such other request, demand, authorization, direction, notice, consent or waiver shall be null and void (in each case unless otherwise agreed to by the Company).

Net Short Holders. In connection with any determination as (a) Any notice of Default, notice of a continuing Event of Default, notice of acceleration or instruction 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 to provide a notice of Default, notice of a continuing Event of Default, notice of acceleration or take any other action relating to a Default or Event of Default other than a payment Default or a bankruptcy or insolvency Default as described in Section 5.1(e) of the Collateral Agent to undertake Base Indenture (a “Noteholder Direction”) provided by any action (one or refrain from taking any action) with respect to, or under, this Indenture, more Holders of 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 Notes to the investors Trustee by any one or other equityholders more Holders of such Person)) the Notes (other than any Holder that is a Regulated Bank) that(each, as a result “Directing Holder”) must be accompanied by a written representation from each such Directing Holder delivered to the Issuer and the Trustee that such Directing Holder is not (or, in the case such Directing Holder is the common depositary on behalf of its (Euroclear or Clearstream 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 anynominee, that such Directing Holder consents is being instructed solely by beneficial owners that have represented to such amendmentHolder that they are not) Net Short (a “Position Representation”), modification or waiver or takes an action which representation, in the case of the type specified in clause (B) or (C) above (such later date, the “date of determination”) with respect a Noteholder Direction relating to the Notes delivery of a notice of Default or with respect to any other tranche, class or series notice of Indebtedness for borrowed money incurred or issued by the Company or any a continuing Event 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”) Default shall be deemed a continuing representation until the resulting Default or Event of Default is cured or otherwise ceases to have voted its interest as exist or the Notes are accelerated. (b) In addition, each Directing Holder is deemed, at the time of providing a Holder without discretion in Noteholder Direction, to covenant to provide the same proportion Issuer with such other information as the allocation Issuer may reasonably request from time to time in order to verify the accuracy of voting with respect to such matter by Holders who are not Net Short Holders Directing Holder’s Position Representation within five Business Days of request therefor (including in any plan of reorganizationa “Verification Covenant”). For purposes of determining whether a Holder (alone or together with its Affiliates) has a “net short position” on any date of determination: (i) derivative contracts with respect The Trustee shall have no duty whatsoever to any Specified Indebtedness and such contracts that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall be converted provide this information to the Dollar equivalent thereof by such Holder in a commercially reasonable manner consistent with generally accepted financial practices and based on Issuer or to obtain this information for the prevailing conversion rate Issuer. (determined on a mid-market basisc) on the date of determination, (iii) derivative contracts in respect of an index that includes the Company or any of its Restricted Subsidiaries or any instrument issued or guaranteed by the Company or any of its Restricted Subsidiaries shall not be deemed to create a short position with respect to such Specified Indebtedness, so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness if such Holder or its Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (x) the relevant Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit, if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y) the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or (z) the Company or any of its Restricted Subsidiaries is designated as a “Reference Entity” under the terms of such derivative transaction, and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to any Specified Indebtedness if such transactions offer the Holder or its Affiliates protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Company or any of its Restricted Subsidiaries, in each case, other than as part of an index so long as (x) such index is not created, designed, administered or requested by such Holder or its Affiliates and (y) the Company and its Restricted Subsidiaries, and any instrument issued or guaranteed by the Company or its Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index. In connection with any amendment, modification or waiver of this Indenture, any Security Document or any Intercreditor Agreement, each Holder (other than any Holder that is a Regulated Bank) will be deemed to have represented to the Company, the Trustee and the Collateral Agent that it does not constitute a Net Short Holder, in each case, unless such Holder shall have notified the Company, the Trustee and the Collateral Agent prior to the requested response date with respect to such amendment, modification or waiver that it constitutes a Net Short Holder (it being understood and agreed that the Company, the Trustee and the Collateral Agent shall be entitled to rely on each such representation and deemed representation). In no event shall the Trustee or the Collateral Agent be obligated to ascertain, calculate, monitor, inquire or otherwise make any determination as to whether any Holder is a Net Short Holder. None of the Trustee nor the Collateral Agent shall have any liability to the Company, Guarantor, Holder, beneficial holder or any other person in connection with determinations related to or actions taken or deemed to be taken by Net Short Holders. In any case in which the Holder is DTC the common depositary on behalf of Euroclear or Clearstream or its nominee, each any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner owners of the Notes agrees to notify DTC if it is a Net Short Holder in lieu of the common depositary on behalf of Euroclear or Clearstream or its nominee, and DTC the common depositary shall be entitled to conclusively rely thereon on such Position Representation and Verification Covenant in delivering its consent direction to the Trustee. If the Holder of the applicable Note is a Clearing System or its nominee, any Position Representation required hereunder shall be provided by the Clearing System or its nominee or by the beneficial owner of an interest in such global notes after delivery to the Trustee of appropriate confirmation of beneficial ownership satisfactory to the Trustee. Notwithstanding anything to the contrary in this section, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of bankruptcy or similar proceedings shall not require compliance with this section. In addition, for the avoidance of doubt, this section shall not apply to any amendment, modification or waiver of any provision of this Indenture, the Notes, the Note Guarantees, any Security Document or any Intercreditor AgreementHolder that is a Regulated Bank. For the avoidance of doubt, the requirements of this section shall only apply to Noteholder Directions as defined herein and do not apply to any other directions given by Holders to the Trustee under this Indenture. (d) If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provide to the Trustee an Officers’ Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer provides to the Trustee an Officers’ Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity such Directing Holder may have offered the Trustee), with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default provided, however, this shall not invalidate any indemnity or security provided by the Directing Holders to the Trustee which obligations shall continue to survive. (e) With their acquisition of the Notes, each Holder and subsequent purchaser of the Notes consents to the delivery of its Position Representation by the Trustee to the Issuer in accordance with the terms of this section. Each Noteholder and subsequent purchaser of the Notes waives any and all claims, in law and/ or in equity, against the Trustee and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this section, or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction. The Issuer hereby waives any and all claims, in law and/or in equity, against the Trustee, and agrees not to commence any legal proceeding against the Trustee in respect of, and agrees that the Trustee will not be liable for any action that the Trustee takes in accordance with this section, or arising out of or in connection with following instructions or taking actions in accordance with a Noteholder Direction. For the avoidance of doubt, the Trustee will treat all Holders equally with respect to their rights under this section. In connection with the requisite percentages required under this Indenture, the Trustee shall also treat all outstanding Notes equally irrespective of any Position Representation in determining whether the requisite percentage has been obtained with respect to the initial delivery of the Noteholder Direction. The Issuer hereby confirms that any and all other actions that the Trustee takes or omits to take under this section and all fees, costs expenses, losses, claims, liabilities, and damages of the Trustee and its agents and counsel arising hereunder and in connection herewith shall be covered by the Collateral Agent Issuer’s indemnifications under this Indenture. (f) For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any direction, consent or waiver Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any position representationPosition Representation, enforce compliance with any net short covenantsVerification Covenant, verify any statements in any Officers’ Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short HoldersDerivative Instruments or otherwise. Neither the The Trustee not the Collateral Agent shall have any no liability to the CompanyIssuer, any Holder of Notes or any other Person in acting in good faith on a direction, consent or waiver delivered to itNoteholder Direction.