Common use of Limitations on Transactions with Affiliates Clause in Contracts

Limitations on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, in each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (each, an “Affiliate Transaction”), unless: (i) the Affiliate Transaction is on terms, taken as a whole, that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $35.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee (or other committee serving similar function), if any. (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 5.12(a); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basis.

Limitations on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, in Issuer (each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $25.0 million, unless: (i1) the such Affiliate Transaction is on terms, taken as a whole, terms that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entiretyon an arm’s-length basis; and (ii2) the Company Issuer delivers to the Trustee, Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $35.0 50.0 million, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee clause (or other committee serving similar function), if any1) above. (b) The following items will foregoing provisions shall not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 5.12(a):following: (1) (i) any employment, severance, employee benefit, director transactions between or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by among the Company or Issuer and/or any of its Restricted Subsidiaries in the ordinary course or any entity that becomes a Restricted Subsidiary as a result of business such transaction and payments, awards, grants (ii) any merger or issuances of securities pursuant thereto (including any consolidation of the foregoing for the benefit of employees, officer and directors of Affiliates Issuer or any direct or indirect parent of the Company)Issuer; provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger or consolidation is otherwise in compliance with the terms of this Indenture; (ii2) transactions between or among any of the Company Permitted Investments and its Restricted Subsidiaries (including Excluded Project Subsidiaries)Payments permitted by Section 1010; (iii3) transactions pursuant to compensatory, benefit and incentive plans and similar agreements with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors directors, managers or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company Issuer or any of its Restricted Subsidiaries; (4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, former, current or future officers, directors, managers, employees or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary; (5) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such transaction meets the requirements of Section 5.12(a)Restricted Subsidiary with an unrelated Person on an arm’s-length basis; (xi6) any agreement or arrangement in effect as of the Issue Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date) or any transaction or payments contemplated thereby; (7) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Issuer or any Restricted Subsidiary of, obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect when taken as a whole; (8) the Transactions and the payment of all fees and expenses related to the Transactions, in each case, as contemplated in the Offering Document; (9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performance of customary registration rights; (11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (12) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or reimbursements former employees, officers, directors, managers or consultants of expenses incurred the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by employees the Issuer in good faith; (13) any transaction in which the only consideration paid by the Issuer or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Issuer; (14) payments to any future, current or former employee, director, manager, officer, manager or consultant of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment or severance agreements, stock option plans, severance plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants that are, in each case, approved by the Issuer in good faith; (15) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; (16) payments by the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for movingsuch fiscal year were the Issuer, entertainment its Restricted Subsidiaries and travel expenses its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such direct or indirect parent company of the Issuer; (17) any lease entered into between the Issuer or any Restricted Subsidiary and similar expenditures any Affiliate of the Issuer in the ordinary course of business; (18) intellectual property licenses in the ordinary course of business; (19) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person; (20) pledges of Equity Interests of Unrestricted Subsidiaries; (21) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and (xii22) in any merger, consolidation or reorganization of the case of contracts for supplies, raw materials, inventory Issuer or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, with an Affiliate of the Issuer or if neither the Company nor any Restricted Subsidiary has entered into solely for the purpose of reincorporating the Issuer or Restricted Subsidiary in a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisnew jurisdiction.

Limitations on Transactions with Affiliates. At any time from and including the Series A Issue Date to and excluding the Issue Date, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any Affiliate Transaction, except in compliance with Section 4.12 of the indenture governing the Old Series A Notes as in effect immediately prior to the consummation of the Transactions. (a) The At any time from and after the Issue Date, the Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, make directly or indirectly, enter into or permit to exist any payment totransaction or series of related transactions (including, without limitation, the purchase, sale, lease or sell, lease, transfer or otherwise dispose exchange of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend the rendering of any transaction, contract, agreement, understanding, loan, advance or guarantee service) with, or for the benefit of, any Affiliate of the Company, in its Affiliates (each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (each, an “Affiliate Transaction”), unless: other than (ix) the Affiliate Transaction is Transactions permitted under paragraph (b) below and (y) Affiliate Transactions on terms, taken as a whole, terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would could reasonably have been obtained in a comparable transaction by at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Subsidiary. All Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view Transactions (and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate consideration payments or other property with a fair market value in excess of $35.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been 2.0 million shall be approved by the Board of Directors of the Company, including such approval to be evidenced by a majority of the disinterested members of the Board Resolution stating that each such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $10.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the Company’s conflicts committee (or other committee serving similar function)relevant Restricted Subsidiary, if anyas the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee. (b) The following items will restrictions set forth in clause (a) shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a):apply to: (i) any employmentreasonable fees and compensation paid to and indemnity provided on behalf of, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors managers, directors, employees or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness consultants of the Company or any Restricted Subsidiary of the Company as determined in accordance with its terms, provided that good faith by the Affiliate is treated no more favorably than other holders Company’s Board of such IndebtednessDirectors; (viiii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by transactions exclusively between the Company or and any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges exclusively among such Restricted Subsidiaries; provided such transactions are not otherwise prohibited by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”this Indenture; (ixiii) any agreement as in effect or entered into as of the Series A Issue Date or any amendment thereto or any replacement agreement thereto or any transaction contemplated thereby so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Series A Issue Date; (iv) Restricted Payments and Permitted Investments permitted by this Indenture; (v) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 5.12(athe first sentence of paragraph (a) above; (vi) the issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to or the funding of, employment arrangements, stock options and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the Company in good faith and loans to employees of the Company and its Subsidiaries which are approved by the Board of Directors of the Company in good faith; (vii) (reserved); (xiviii) advances transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case on ordinary business terms and otherwise in compliance with the terms of this Indenture, which are fair to the Company or reimbursements of expenses incurred by employees for movingits Restricted Subsidiaries, entertainment and travel expenses and similar expenditures in the ordinary course reasonable determination of businessthe Board of Directors of the Company or the senior management thereof, or are on terms at least as favorable as could reasonably have been obtained at such time from an unaffiliated party; (ix) any contribution to the capital of the Company by QD Inc., or any sales of Capital Stock of the Company to QD Inc.; and (xiix) in any tax sharing agreement or arrangement and payments pursuant thereto among the case of contracts for supplies, raw materials, inventory Company and its Subsidiaries and any other Person with which the Company or other goods its Subsidiaries is required or services permitted to file a consolidated tax return or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by with which the Company or any of its Restricted Subsidiary and third parties, Subsidiaries is or if neither the Company nor any Restricted Subsidiary has entered into could be part of a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisconsolidated group for tax purposes in amounts not otherwise prohibited by this Indenture.

Limitations on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment todirectly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, from or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company, in each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (eachforegoing, an “Affiliate TransactionAFFILIATE TRANSACTION”), unless: unless (i) the such Affiliate Transaction is on terms, taken as a whole, terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, Trustee (a) with respect to any Affiliate Transaction (or series of related Affiliate Transactions transactions) involving Pro-Fac (including, without limitation, any amendment to or waiver under the Pro-Fac Marketing Agreement and any agreement for the purchase of crops entered into pursuant to the Pro-Fac Marketing Agreement) prior to consummation of the Pro-Fac Merger or involving aggregate consideration payments in excess of $35.0 1.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 clause (i) above and which sets forth and authenticates a resolution that such Affiliate Transaction has been approved adopted by the Board a vote of Directors of the Company, including a majority of the disinterested members of the Board of Disinterested Directors of the Company or the Company’s conflicts committee (or other committee serving similar function), if any. approving such Affiliate Transaction and (b) The following items will not be deemed with respect to be any Affiliate Transactions and, therefore, will not be subject Transaction (or series of related transactions) involving aggregate payments in excess of $5.0 million (other than any Affiliate Transaction (for series of related transactions) occurring prior to consummation of the Pro-Fac Merger and relating to the provisions Pro-Fac Marketing Agreement or any agreement for the purchase of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan crops entered into by pursuant to the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (CPro-Fac Marketing Agreement), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to Officers’ Certificate described in the preceding clause (A), respectively; (va) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures an opinion as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair fairness to the Company or such Restricted Subsidiary from a financial point of view of such Affiliate Transaction (or series of related transactions) issued by an Independent Financial Advisor; provided, however, that the following shall not be deemed to be Affiliate Transactions: (i) transactions exclusively between or among (1) the Company and one or more Restricted Subsidiaries or (2) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Company (other than another Restricted Subsidiary) owns Capital Stock of any such transaction meets Restricted Subsidiary; (ii) transactions between the requirements Company or any Restricted Subsidiary and any qualified employee stock ownership plan established for the benefit of Section 5.12(a); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary theretoCompany’s employees, or other operational contracts, the establishment or maintenance of any such contracts are plan; (iii) reasonable director, officer and employee compensation and other benefit and indemnification arrangements entered into in the ordinary course of business on terms substantially similar and consistent with past practice; (iv) transactions permitted by Section 4.05 or excluded from the definition of “Restricted Payments;” (v) the pledge of Capital Stock of Unrestricted Subsidiaries to those contained in similar contracts entered into by support the Indebtedness thereof; (vi) transactions between the Company or any Restricted Subsidiary and third parties, or if neither any Affiliate of the Company nor any or such Restricted Subsidiary has entered into that is a similar contract with joint venture, provided that no direct or indirect holder of an equity interest in such joint venture (other than the Company or a third partyRestricted Subsidiary) is an Affiliate of the Company or such Restricted Subsidiary; and (vii) except as set forth in clause (a) above, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’sPro-length basisFac Marketing Agreement and any transaction effected pursuant thereto.

Limitations on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the CompanyIssuer (each of the foregoing, in each case, other than any such transaction an “Affiliate Transaction”) involving aggregate payments or series of transactions that does not involve consideration in excess of $10.0 million (each, an “Affiliate Transaction”)million, unless: (i1) the such Affiliate Transaction is on terms, taken as a whole, terms that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entiretyon an arm’s-length basis; and (ii2) the Company Issuer delivers to the Trustee, Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $35.0 50.0 million, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee clause (or other committee serving similar function), if any1) above. (b) The following items will foregoing provisions shall not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 5.12(a):following: (1) (i) any employment, severance, employee benefit, director transactions between or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by among the Company or Issuer and/or any of its Restricted Subsidiaries in the ordinary course or any entity that becomes a Restricted Subsidiary as a result of business such transaction and payments, awards, grants (ii) any merger or issuances of securities pursuant thereto (including any consolidation of the foregoing for the benefit of employees, officer and directors of Affiliates Issuer or any direct or indirect 88 parent of the Company)Issuer; provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger or consolidation is otherwise in compliance with the terms of this Indenture; (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B2) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9the provisions of this Indenture; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix3) transactions between the Company pursuant to compensatory, benefit and any Personincentive plans and similar agreements with officers, a director of which is also a director directors, managers or employees of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company Issuer or any of its Restricted Subsidiaries; (4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, former, current or future officers, directors, managers, employees or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary; (5) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such transaction meets the requirements of Section 5.12(a)Restricted Subsidiary with an unrelated Person on an arm’s-length basis; (xi6) any agreement or arrangement in effect as of the Issue Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date) or any transaction or payments contemplated thereby; (7) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Issuer or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect when taken as a whole; (8) the Transactions and the payment of all fees and expenses related to the Transactions; (9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performance of customary registration rights; (11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (12) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or reimbursements former employees, officers, directors, managers or consultants of expenses incurred the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by employees the Issuer in good faith; (13) any transaction in which the only consideration paid by the Issuer or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Issuer; (14) payments to any future, current or former employee, director, manager, officer, manager or consultant of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment or severance agreements, stock option plans, severance plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants that are, in each case, approved by the Issuer in good faith; (15) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; (16) payments by the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for movingsuch fiscal year were the Issuer, entertainment its Restricted Subsidiaries and travel expenses its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such direct or indirect parent company of the Issuer; (17) any lease entered into between the Issuer or any Restricted Subsidiary and similar expenditures any Affiliate of the Issuer in the ordinary course of business; (18) intellectual property licenses in the ordinary course of business; (19) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person; (20) pledges of Equity Interests of Unrestricted Subsidiaries; (21) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and (xii22) in any merger, consolidation or reorganization of the case of contracts for supplies, raw materials, inventory Issuer or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, with an Affiliate of the Issuer or if neither the Company nor any Restricted Subsidiary has entered into solely for the purpose of reincorporating the Issuer or Restricted Subsidiary in a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisnew jurisdiction.

Limitations on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, in each case, other than Company or any such transaction or series of transactions that does not involve consideration in excess of $10.0 million Restricted Subsidiary (each, an “Affiliate Transaction”), unless: (ia) the Affiliate Transaction is on terms, taken as a whole, that are terms no less favorable to the Company or the relevant Restricted Subsidiary than those that would could have been obtained in a comparable transaction by the Company or such Restricted Subsidiary on an arm’s length basis with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entiretyPerson; and (iib) the Company obtains and delivers to the Trustee, : (1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $35.0 million5,000,000, a resolution of its Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 4.11 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the its Board of Directors Directors; and (2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10,000,000, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm selected by the Company’s conflicts committee (Company or other committee serving similar function)such Restricted Subsidiary, if any. (b) as applicable, of recognized national standing with experience in appraising the terms and conditions of the type of transaction or series of related transactions for which such opinion is required. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a):the prior paragraph: (i1) any employmentemployment agreement, severancecollective bargaining agreement, employee benefitbenefit plan (including the Management Incentive Plan and any vacation plan, health and life insurance plan, deferred compensation plan, retirement or savings plan or stock option, stock ownership or similar plan), officer and director or officer indemnification, equity award, equity option or equity appreciation or other compensation indemnification agreement or plan any similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business business, and payments, awards, grants the payment or issuances issuance of securities pursuant thereto (including to any of the foregoing for the benefit of employeessuch agreement, officer and directors of Affiliates of the Company)plan or arrangement; (ii2) the payment of compensation (including awards or grants in cash, securities or other payments) for the personal services of, and expense reimbursement and indemnity provided on behalf of, officers, directors (including the payment of, or an agreement providing for the payment of, reasonable directors’ fees), consultants and employees of the Company or any of its Restricted Subsidiaries, in each case in the ordinary course of business; (3) to the extent permitted by applicable law, loans or advances to employees in the ordinary course of business for bona fide business purposes and not to exceed $250,000 in the aggregate at any time outstanding; (4) transactions between or among any of the Company and and/or its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii5) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of pursuant to agreements or arrangements in effect on the Closing Issue Date, (B) or any amendment amendment, modification or supplement thereto or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreementsthereof, so long as, in the case of clause (B) or (C), the terms of any as such amendment or replacement agreement or future agreement arearrangement, on the whole either as so amended, modified, supplemented or replaced, taken as a whole, is not materially less advantageous to the Company or not materially less favorable favorable, taken as a whole, to the Holders of the Notes than the original agreement so amended or replaced or arrangement in existence on the similar agreement referred to in the preceding clause (A), respectivelyIssue Date; (v6) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x7) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating Payments that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of do not violate Section 5.12(a); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basis4.10.

Limitations on Transactions with Affiliates. (a) The Company Holdings and the Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, make any payment loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any of its properties property or assets toto or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance agreement or guarantee understanding with, or for the benefit of, any Affiliate of the Company, Holdings or any Affiliate of any of Holdings’ Subsidiaries involving payments or consideration in each case, other than any such a single transaction or series of related transactions that does not involve consideration in excess of $10.0 million (each, an “Affiliate Transaction”), unless: (i) with respect to any such Affiliate Transaction involving or having a value of more than $5.0 million, Holdings shall have (A) obtained the approval of a majority of the Board of Directors of Holdings and (B) either obtained the approval of a majority of Holdings’ disinterested directors or obtained an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to Holdings, the Borrower or such Restricted Subsidiary, as the case may be, from a financial point of view, and (ii) with respect to any such Affiliate Transaction involving or having a value of more than $10.0 million, Holdings shall have (A) obtained the approval of a majority of the Board of Directors of Holdings and (B) delivered to the Administrative Agent an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to Holdings, the Borrower or such Restricted Subsidiary, as the case may be, from a financial point of view. (b) Notwithstanding the foregoing, an Affiliate Transaction will not include: (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of, employees of Holdings or its Subsidiaries generally (in their capacities as such) that has been approved by the Board of Directors of Holdings; (ii) Capital Stock issuances to directors, officers and employees of Holdings or its Subsidiaries pursuant to plans approved by the stockholders of Holdings; (iii) any Restricted Payment otherwise permitted under Section 6.04 hereof or any Permitted Investment (other than a Permitted Investment referred to in clause (b) of the definition thereof, except as permitted by clause (iv) below); (iv) any transaction between or among Holdings and/or one or more Restricted Subsidiaries or between or among Restricted Subsidiaries (provided, however, no such transaction shall involve any other Affiliate of Holdings (other than an Unrestricted Subsidiary to the extent permitted by this Agreement)) and any Guarantees issued by Holdings or a Restricted Subsidiary for the benefit of Holdings or a Restricted Subsidiary, as the case may be, in accordance with Section 6.03; (v) any transaction between Holdings, the Borrower or one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries (A) where all of the payments to, or other benefits conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to Holdings, the Borrower or a Restricted Subsidiary or (B) in the ordinary course of business, including sales (directly or indirectly), sales subject to repurchase options, leases and sales and leasebacks of (1) homes, improved land and unimproved land and (2) real estate (including related amenities and improvements); (vi) issuances, sales or other transfers or dispositions of mortgages and collateralized mortgage obligations in the ordinary course of business between Restricted Subsidiaries and Unrestricted Subsidiaries of Holdings; (vii) the payment of reasonable and customary fees to, and indemnity provided on termsbehalf of, taken officers, directors, employees or consultants of Holdings, the Borrower or any Restricted Subsidiary; (viii) transactions in which Holdings, the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent an opinion of a wholequalified independent financial advisor stating that such transaction is fair to Holdings, the Borrower or such Restricted Subsidiary from a financial point of view or stating that the terms are no not materially less favorable to Holdings, the Company Borrower or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by Holdings, the Company Borrower or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $35.0 million, on an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Companyarm’s conflicts committee (or other committee serving similar function), if any. (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company)length basis; (iiix) transactions between any agreement or among any arrangement as in effect as of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest inClosing Date, or otherwise controls, any amendment thereto (so long as any such Person; (iv) transactions effected amendment is not disadvantageous in accordance with (A) any material respect to the terms of agreements Lenders when taken as a whole as compared to the applicable agreement or arrangements arrangement as in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (vx) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates transactions with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures joint ventures entered into in the ordinary course of business, except for guarantees including sales (directly or indirectly), sales subject to repurchase options, leases and sales and leasebacks of Indebtedness in respect of borrowed money(A) homes, improved land and unimproved land and (B) pledges by real estate (including related amenities and improvements); (xi) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because Holdings, the Company Borrower or a Restricted Subsidiary owns Capital Stock in or otherwise controls such Person; (xii) the issuance and transfer of Capital Stock of Holdings, the Borrower and the granting and performance of customary registration rights; (xiii) any lease entered into between Holdings, the Borrower or any Restricted Subsidiary Subsidiary, as lessee, and any Affiliate of Capital Stock Holdings, as lessor, in Unrestricted Subsidiaries or Joint Ventures for the benefit ordinary course of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”business; (ixxiv) intellectual property licenses in the ordinary course of business; (xv) transactions between Holdings, the Company Borrower or any of its Restricted Subsidiaries and any Person, Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the CompanyHoldings; provided, however, that such director abstains from voting as a director of the Company Holdings on any matter involving such other Person; and (xxvi) any transaction in which the pledges of Capital Stock of Unrestricted Subsidiaries (other than a JV Holding Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Permitted Joint Venture (except in compliance with Section 5.12(a6.05 hereof); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basis).

Limitations on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, in Issuer (each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $15.0 million, unless: (i1) the such Affiliate Transaction is on terms, taken as a whole, terms that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entiretyon an arm’s-length basis; and (ii2) the Company Issuer delivers to the Trustee, Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $35.0 30.0 million, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 5.12 clause (1) above. (b) The foregoing provisions shall not apply to the following: (1) (i) transactions between or among the Issuer or any of the Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction and (ii) any merger or consolidation of the Issuer or any direct or indirect parent of the Issuer; provided that such Affiliate Transaction has been parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger or consolidation is otherwise in compliance with the terms of the Indenture and effected for a bona fide business purpose; (2) Restricted Payments permitted by Section 1010 and the definition of “Permitted Investments”; (3) (i) the payment of indemnification and other similar amounts to the Investors pursuant to the Stockholders Agreement; and (ii) payments by the Issuer or any of its Restricted Subsidiaries to any of the Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee (or other committee serving similar function), if any.Issuer in good faith; (b4) The following items will not be deemed to be Affiliate Transactions andthe payment of reasonable and customary fees and compensation paid to, thereforeand indemnities and reimbursements and employment and severance arrangements provided on behalf of, will not be subject to the provisions of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employeesof, officer and directors of Affiliates former, current or future officers, directors, managers, employees or consultants of the Company)Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary; (ii5) transactions between or among any of in which the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company Issuer or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted SubsidiariesSubsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such transaction meets Restricted Subsidiary with an unrelated Person on an arm’s-length basis; (6) any agreement or arrangement as in effect as of the requirements of Section 5.12(aIssue Date, or any amendment thereto (so long as any such amendment is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date); (xi7) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Issuer or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect when taken as a whole; (8) the Transactions and the payment of all fees and expenses related to the Transactions, in each case, as contemplated in the Offering Document; (9) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer to and the granting and performance of customary registration rights; (11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (12) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to employees, directors, managers or reimbursements consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by the Issuer in good faith; (13) investments by the Investors in indebtedness or securities of the Issuer or any Restricted Subsidiary (and payment of reasonable fees and out-of-pocket expenses incurred by employees such Investors in connection therewith) so long as the investment is being generally offered to other investors on the same or more favorable terms; (14) payments to any future, current or former employee, director, manager, officer, manager or consultant of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants that are, in each case, approved by the Issuer in good faith; (15) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Parent or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; (16) payments by the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for movingsuch fiscal year were the Issuer, entertainment its Restricted Subsidiaries and travel expenses its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such direct or indirect parent company of the Issuer; (17) any lease entered into between the Issuer or any Restricted Subsidiary, as lessee, and similar expenditures any Affiliate of the Issuer, as lessor, in the ordinary course of business; (18) intellectual property licenses in the ordinary course of business; (19) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person; (20) pledges of Equity Interests of Unrestricted Subsidiaries; and (xii21) in transactions with joint ventures for the case purchase or sale of contracts for suppliesgoods, raw materials, inventory or other goods or equipment and services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisbusiness.

Limitations on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment todirectly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, from or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the Company, in each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (eachforegoing, an “Affiliate Transaction”"AFFILIATE TRANSACTION"), unless: unless (i) the such Affiliate Transaction is on terms, taken as a whole, terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, Trustee (a) with respect to any Affiliate Transaction (or series of related Affiliate Transactions transactions) involving Pro-Fac (including, without limitation, any amendment to or waiver under the Pro-Fac Marketing Agreement and any agreement for the purchase of crops entered into pursuant to the Pro-Fac Marketing Agreement) prior to consummation of the Pro-Fac Merger or involving aggregate consideration payments in excess of $35.0 1.0 million, an Officers’ ' Certificate certifying that such Affiliate Transaction complies with this Section 5.12 clause (i) above and which sets forth and authenticates a resolution that such Affiliate Transaction has been approved adopted by the Board a vote of Directors of the Company, including a majority of the disinterested members of the Board of Disinterested Directors of the Company or the Company’s conflicts committee (or other committee serving similar function), if any. approving such Affiliate Transaction and (b) The following items will not be deemed with respect to be any Affiliate Transactions and, therefore, will not be subject Transaction (or series of related transactions) involving aggregate payments in excess of $5.0 million (other than any Affiliate Transaction (for series of related transactions) occurring prior to consummation of the Pro-Fac Merger and relating to the provisions Pro-Fac Marketing Agreement or any agreement for the purchase of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan crops entered into by pursuant to the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (CPro-Fac Marketing Agreement), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to Officers' Certificate described in the preceding clause (A), respectively; (va) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures an opinion as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair fairness to the Company or such Restricted Subsidiary from a financial point of view of such Affiliate Transaction (or series of related transactions) issued by an Independent Financial Advisor; provided, however, that the following shall not be deemed to be Affiliate Transactions: (i) transactions exclusively between or among (1) the Company and one or more Restricted Subsidiaries or (2) Restricted Subsidiaries, provided, in each case, that no Affiliate of the Company (other than another Restricted Subsidiary) owns Capital Stock of any such transaction meets Restricted Subsidiary; (ii) transactions between the requirements Company or any Restricted Subsidiary and any qualified employee stock ownership plan established for the benefit of Section 5.12(a); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary theretoCompany's employees, or other operational contracts, the establishment or maintenance of any such contracts are plan; (iii) reasonable director, officer and employee compensation and other benefit and indemnification arrangements entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into and consistent with past practice; (iv) transactions permitted by Section 4.05 or excluded from the Company or any definition of "Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basis.Payments;"

Limitations on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, in Issuer (each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $20.0 million, unless: (i1) the such Affiliate Transaction is on terms, taken as a whole, that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis or, if in the good faith judgment of the Board of Directors of the CompanyIssuer, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company Issuer or the relevant such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and (ii2) the Company Issuer delivers to the Trustee, Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $35.0 50.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved a resolution adopted by a majority of the members of the Board of Directors of the Company, including Issuer and a majority of the disinterested members of the Board of Directors of the Company or the CompanyIssuer approving such Affiliate Transaction and an Officer’s conflicts committee Certificate certifying that such Affiliate Transaction complies with clause (or other committee serving similar function), if any1) above. (b) The following items will foregoing provisions shall not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 5.12(a):following: (i1) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (iia) transactions between or among any of the Company Issuer and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate between or among Restricted Subsidiaries or, in any case, any entity that becomes a Restricted Subsidiary as a result of such transaction and (b) any merger, consolidation or amalgamation of the CompanyIssuer with or into any Parent Entity; provided that such Parent Entity shall have no material liabilities and no material assets other than cash, including reimbursement Cash Equivalents and the Capital Stock of the Issuer or advancement another Parent Entity and such merger, consolidation or amalgamation is otherwise consummated in compliance with the terms of out-of-pocket expenses this Indenture and provisions of officers’ and directors’ liability insuranceeffected for a bona fide business purpose; (vi2) sales of Equity Interests Restricted Payments permitted by Section 10.10 (other than Disqualified Stockpursuant to Section 10.10(b)(13)(F)) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted LiensInvestments;” (3) the payment of indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors, in each case, approved by, or pursuant to arrangements approved by the Board of the Issuer; (ix4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided to or on behalf of, or for the benefit of, former, current or future officers, directors, employees, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any Restricted Subsidiary or any Parent Entity; (5) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company Issuer or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such transaction meets Restricted Subsidiary with an unrelated Person on an arm’s length basis; (6) any agreement or arrangement as in effect or contemplated as of the requirements Issue Date (other than any agreement or arrangement of Section 5.12(athe type described in clause (3) above), or any amendment thereto (so long as any such amendment is not materially disadvantageous in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date); (xi7) advances the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it (or reimbursements any Parent Entity) is a party as of expenses incurred the Issue Date and any similar agreements which it (or any Parent Entity) may enter into thereafter; provided, however, that the existence of, or the performance by employees for movingthe Issuer or any of its Restricted Subsidiaries (or such Parent Entity) of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise materially disadvantageous in the good faith judgment of the Board of the Issuer or the senior management of the Issuer to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date; (8) [reserved]; (9) transactions with customers, entertainment and travel expenses and similar expenditures clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business; andbusiness or that are consistent with past practice and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board or the senior management of the Issuer, or are on terms, taken as a whole, that are not materially less favorable as might reasonably have been obtained at such time from an unaffiliated party; (xii10) the issuance or transfer of (a) Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performing of customary registration rights to any Parent Entity or to any Permitted Holder or to any former, current or future director, officer, manager, employee or consultant (or their respective Controlled Investments Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer or any of its Subsidiaries or any Parent Entity and (b) directors’ qualifying shares and shares issued to foreign nationals as required by applicable law; (11) transactions in connection with Permitted Receivables Financings; (12) payments by the Issuer or any of its Restricted Subsidiaries made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by the Board of the Issuer or the senior management of the Issuer in good faith; (13) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) of the Issuer, any of its Subsidiaries or any Parent Entity and employment agreements, stock option plans and other compensatory or severance arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or similar arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members, or any Permitted Transferee thereof) (including salary or guaranteed payments and bonuses) which, in each case, are approved by the Board of the Issuer or the senior management of the Issuer in good faith; (A) investments by Permitted Holders in securities or loans of the Issuer or any of its Restricted Subsidiaries (and any payment of out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the investment is being offered generally to other investors on the same or more favorable terms, and (B) payments to Permitted Holders in respect of securities or loans of the Issuer or any of its Restricted Subsidiaries contemplated in the case foregoing subclause (A) or that were acquired from Persons other than the Issuer and its Restricted Subsidiaries, in each case, in accordance with the terms of contracts for supplies, raw materials, inventory such securities or other goods loans; (15) transactions with a Person that is an Affiliate of the Issuer arising solely because the Issuer or services or activities reasonably related or ancillary theretoany Restricted Subsidiary owns any Equity Interest in, or controls, such Person; (16) any lease entered into between the Issuer or any Restricted Subsidiary, on the one hand, and any Affiliate of the Issuer, on the other operational contractshand, any such contracts are which is approved by the Board of the Issuer or the senior management of the Issuer in good faith; (17) intellectual property licenses entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by or consistent with past practice; (18) transactions between the Company Issuer or any Restricted Subsidiary and third partiesany other Person that would constitute an Affiliate Transaction solely because a director of such other Person is also a director of the Issuer or any Parent Entity; provided, however, that such director abstains from voting as a director of the Issuer or such Parent Entity, as the case may be, on any matter including such other Person; (19) pledges of Equity Interests of Unrestricted Subsidiaries; (20) payments by the Issuer and any Parent Entity and their respective Subsidiaries pursuant to tax sharing agreements among the Issuer and any Parent Entity and their respective Subsidiaries on customary terms; provided that such payments shall not exceed the excess (if neither any) of the Company nor amount of taxes that the Issuer and its Subsidiaries would have paid on a stand-alone basis over the amount of such taxes actually paid by the Issuer and its Subsidiaries directly to governmental authorities; and (21) payments to and from, and transactions with, any Restricted Subsidiary has joint ventures entered into a similar contract in the ordinary course of business or consistent with a third partypast practice (including, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basiswithout limitation, any cash management activities related thereto).

Limitations on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment loan, advance, guaranty or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance agreement or guarantee understanding with, or for the benefit of, (i) any Affiliate of the Company or any Affiliate of the Company, in 's Restricted Subsidiaries or (ii) any Person (or any Affiliate of such Person) holding 10 percent or more of the Common Equity of the Company or any of its Restricted Subsidiaries (each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (each, an “"Affiliate Transaction”"), unless: (i) the Affiliate Transaction is except on terms, taken as a whole, terms that are no less favorable to the Company or the relevant Restricted Subsidiary Subsidiary, as the case may be, than those that would could have been obtained in a comparable transaction on an arms' length basis from a Person that is not an Affiliate. (b) The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into any Affiliate Transaction involving or having a value of more than $10,000,000, unless in each case such Affiliate Transaction has been approved by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment a majority of the Board of Directors disinterested members of the Company's Board of Directors. (c) The Company will not, no comparable and will not permit any of its Restricted Subsidiaries to, enter into an Affiliate Transaction involving or having a value of more than $20,000,000 unless the Company has delivered to the Trustee an opinion of an Independent Financial Advisor to the effect that the transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary Subsidiary, as the case may be, from a financial point of view and when such transaction is taken in its entirety; andview. (iid) Notwithstanding the foregoing, an Affiliate Transaction will not include (i) any contract, agreement or understanding with, or for the benefit of, or plan for the benefit of, employees or directors of the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration its Subsidiaries (in excess of $35.0 million, an Officers’ Certificate certifying their capacity as such) that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Company's Board of Directors of the CompanyDirectors, including a majority of the disinterested (ii) Capital Stock issuances to members of the Board of Directors of the Company or the Company’s conflicts committee (or other committee serving similar function)Directors, if any. (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors officers or employees of the Company or a Restricted Subsidiary or Affiliate its Subsidiaries pursuant to plans approved by the stockholders of the Company, (iii) any Restricted Payment otherwise permitted under Section 6.12 hereof, (iv) any transaction between the Company or a Restricted Subsidiary and another Restricted Subsidiary, (v) any contract, agreement or understanding as in effect on the Issue Date of Securities of any series or any amendment thereto or any transaction contemplated thereby (including reimbursement any amendment thereto) or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, loans or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges advances by the Company or any Restricted Subsidiary of Capital Stock in to Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and which in an aggregate amount at any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 5.12(a); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisone time outstanding do not exceed $50,000,000.

Limitations on Transactions with Affiliates. (a) The Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries may make any loan, advance, guarantee or capital contribution to, make any payment toor for the benefit of, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or make any or amend any transaction, contract, agreement, understanding, loan, advance agreement or guarantee understanding with, or for the benefit of, any an Affiliate of the Company, in (each case, other than any such transaction or series of related transactions that does not involve consideration in excess are part of $10.0 million (each, a common plan are referred to as an “"Affiliate Transaction”"), unless: (i) the Affiliate Transaction is except in good faith and on terms, taken as a whole, terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction on an arm's length basis from an unrelated person. In addition, the Company will not, and will not permit any Restricted Subsidiary to, engage in any Affiliate Transaction involving aggregate payments or other transfers by the Company or such and its Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration Subsidiaries in excess of $35.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 5,000,000 (including cash and that such Affiliate Transaction has been approved non-cash payments and benefits valued at their fair market value by the Board of Directors of the Company, including Company in good faith) unless the Company delivers to the Trustee: (i) a majority of the disinterested members resolution of the Board of Directors of the Company or stating that the Company’s conflicts committee Board of Directors (or other committee serving similar function)including a majority of the disinterested directors, if any) has, in good faith, determined that such Affiliate Transaction complies with the provisions of this Indenture; and (ii) (A) with respect to any Affiliate Transaction involving the incurrence of Indebtedness, a written opinion of a nationally recognized investment banking or accounting firm experienced in the review of similar types of transactions, (B) with respect to any Affiliate Transaction involving the transfer of real property, fixed assets or equipment, either directly or by a transfer of 50% or more of the Capital Stock of a Restricted Subsidiary which holds any such real property, fixed assets or equipment, a written appraisal from a nationally recognized appraiser, experienced in the review of similar types of transactions or (C) with respect to any Affiliate Transaction not otherwise described in (A) and (B) above, a written certification from a nationally recognized professional or firm experienced in evaluating similar types of transactions, in each case, stating that the terms of such transaction are fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. (b) The following items Notwithstanding the foregoing, Section 4.11(a) hereof will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a):apply to: (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by transactions between the Company and any Restricted Subsidiary or any of its between Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company)Subsidiaries; (ii) any other payments or transactions permitted pursuant to Section 4.07 hereof; (iii) (A) payments and transactions pursuant to employment agreements between or among any officers of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of and the Company solely because the Company owns, directly or through a and its Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, Subsidiaries and (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available reasonable compensation paid to officers, directors employees or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness consultants of the Company or any Restricted Subsidiary as determined in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees good faith by the Company Company's Board of Directors or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Personexecutives; and (xiv) any transaction payments and transactions in which connection with the Company or any Offering and the application of its Restricted Subsidiaries, the net proceeds therefrom as described under "Use of Proceeds" in the case may be, delivers offering circular relating to the Trustee a letter from an Independent Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of Section 5.12(a); (xi) advances to or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of business; and (xii) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisOffering.

Limitations on Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, Directly or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or indirectly enter into or make permit to exist any transaction or amend series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any transaction, contract, agreement, understanding, loan, advance Property or guarantee the rendering of any service) with, or for the benefit of, any of its Affiliates (each an "Affiliate of the Company, in each caseTransaction"), other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (each, an “x) Affiliate Transaction”), unless: Transactions permitted under paragraph (ib) the below and (y) Affiliate Transaction is Transactions on terms, taken as a whole, terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would might reasonably have been obtained in a comparable transaction by the Company or at such Restricted Subsidiary with time on an unrelated arm's-length basis from a Person or, if in the good faith judgment that is not an Affiliate of the Board of Directors Borrower or other member of the Company, no comparable transaction is available with which to compare such Consolidated Group. All Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view Transactions (and when such transaction is taken in its entirety; and (ii) the Company delivers to the Trustee, with respect to any Affiliate Transaction or each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate consideration payments or other Property with a fair market value in excess of $35.0 million, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been 2,000,000 shall be approved by the Board of Directors of the Company, including a majority respective member of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee (or other committee serving similar function), if any. (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.12(a): (i) any employment, severance, employee benefit, director or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities pursuant thereto (including any of the foregoing for the benefit of employees, officer and directors of Affiliates of the Company); (ii) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company or any of its Restricted SubsidiariesConsolidated Group, as the case may be, delivers such approval to the Trustee be evidenced by a letter from an Independent Advisor Board Resolution stating that such Board of Directors has determined that such transaction is complies with the foregoing provisions. If a member of the Consolidated Group enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5,000,000, the Borrower or other member of the Consolidated Group, as the case may be, shall, prior to the Company consummation thereof, obtain a favorable opinion as to the fairness of such transaction or such Restricted Subsidiary series of related transactions to the Borrower or other relevant member of the Consolidated Group, as the case may be, from a financial point of view view, from an Independent Financial Advisor and file the same with the Administrative Agent. (b) The restrictions set forth in the first paragraph of this covenant shall not apply to: (1) reasonable fees and compensation (including severance payments and compensation in the form of securities) and customary expense, reimbursement paid to and indemnity and reimbursement provided on behalf of, officers, directors, employees or that such transaction meets consultants of the requirements Borrower or any member of Section 5.12(a)the Consolidated Group as determined in good faith by the Borrower's Board of Directors or senior management; (xi2) transactions exclusively between or among the Borrower or any of the members of the Consolidated Group or exclusively between or among such members of the Consolidated Group, provided such transactions are not otherwise prohibited hereunder; (3) transactions pursuant to or contemplated by any agreement as in effect as of April 6, 1999 or any amendment thereto or any replacement agreement so long as any such amendment or replacement agreement is not more disadvantageous to the Lenders hereunder in any material respect than the original agreement as in effect on April 6, 1999; (4) loans and advances to employees or reimbursements of expenses incurred by employees for moving, entertainment and travel expenses and similar expenditures in the ordinary course of businessofficers which constitute Permitted Investments hereunder; and (xii5) in the case of contracts for supplies, raw materials, inventory or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, or if neither the Company nor any Restricted Subsidiary has entered into a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisPayments permitted hereunder.

Limitations on Transactions with Affiliates. (a) The Company will Parent shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the CompanyParent (each of the foregoing, in each case, other than any such transaction an “Affiliate Transaction”) involving aggregate payments or series of transactions that does not involve consideration in excess of $10.0 million (each, an “Affiliate Transaction”)million, unless: (i) the such Affiliate Transaction is on terms, taken as a whole, terms that are no not materially less favorable to the Company Parent or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Parent or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entiretyon an arm’s-length basis; and (ii) the Company Parent delivers to the Trustee, Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $35.0 50.0 million, a resolution adopted by the majority of the Board of Directors of the Parent approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee (or other committee serving similar function), if anyclause ‎(i) above. (b) The following items will foregoing provisions shall not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 5.12(a):following: (i) any employment, severance, employee benefit, director (a) transactions between or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by among the Company or Parent and/or any of its Restricted Subsidiaries in the ordinary course or any entity that becomes a Restricted Subsidiary as a result of business such transaction and payments, awards, grants (b) any merger or issuances of securities pursuant thereto (including any consolidation of the foregoing for the benefit of employees, officer and directors of Affiliates Parent or any direct or indirect parent of the Company)Parent; provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Parent and such merger or consolidation is otherwise in compliance with the terms of this Indenture; (ii) transactions between any Permitted Investments or among any Restricted Payments permitted by the provisions of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries)this Indenture; (iii) transactions pursuant to compensatory, benefit and incentive plans and similar agreements with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors directors, managers or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted Liens”; (ix) transactions between the Company and any Person, a director of which is also a director of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company Parent or any of its Restricted Subsidiaries; (iv) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, former, current or future officers, directors, managers, employees or consultants of the Parent any direct or indirect parent company of the Parent or any Restricted Subsidiary; (v) transactions in which the Parent or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Parent or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Parent or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis; (vi) any agreement or arrangement in effect as of the Issue Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date) or any transaction meets or payments contemplated thereby; (vii) the requirements existence of, or the performance by the Parent or any Restricted Subsidiary of Section 5.12(a)its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Parent or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause ‎(vii) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect when taken as a whole; (viii) provision of cash collateral permitted under ‎Section 10.08 and payments and distributions of amounts therefrom; (ix) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Parent and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Parent or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (x) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Parent and the granting and performance of customary registration rights; (xi) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (xii) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or reimbursements former employees, officers, directors, managers or consultants of expenses incurred the Parent, any direct or indirect parent company of the Parent or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by employees the Parent in good faith; (xiii) any transaction in which the only consideration paid by the Parent or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Parent to Affiliates of the Parent; (xiv) payments to any future, current or former employee, director, manager, officer, manager or consultant of the Parent, any of its Subsidiaries or any direct or indirect parent company of the Parent pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement or stock appreciation rights; and any employment or severance agreements, stock option plans, severance plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants that are, in each case, approved by the Parent in good faith; (xv) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Parent or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; (xvi) payments by the Parent (and any direct or indirect parent company of the Parent) and its Subsidiaries pursuant to tax sharing agreements among the Parent (and any direct or indirect parent company of the Parent) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Parent, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for movingsuch fiscal year were the Parent, entertainment its Restricted Subsidiaries and travel expenses its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such direct or indirect parent company of the Parent; (xvii) any lease entered into between the Parent or any Restricted Subsidiary and similar expenditures any Affiliate of the Parent in the ordinary course of business; (xviii) intellectual property licenses in the ordinary course of business; (xix) transactions between the Parent or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Parent or any other direct or indirect parent of the Parent; provided, however, that such director abstains from voting as a director of the Parent or such direct or indirect parent of the Parent, as the case may be, on any matter involving such other Person; (xx) pledges of Equity Interests of Unrestricted Subsidiaries; (xxi) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and (xiixxii) in any merger, consolidation or reorganization of the case of contracts for supplies, raw materials, inventory Parent or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, with an Affiliate of the Parent or if neither the Company nor any Restricted Subsidiary has entered into solely for the purpose of reincorporating the Parent or Restricted Subsidiary in a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisnew jurisdiction.

Limitations on Transactions with Affiliates. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company, in Issuer (each case, other than any such transaction or series of transactions that does not involve consideration in excess of $10.0 million (eachthe foregoing, an “Affiliate Transaction”)) involving aggregate payments or consideration in excess of $25.0 million, unless: (i1) the such Affiliate Transaction is on terms, taken as a whole, terms that are no not materially less favorable to the Company Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company Issuer or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view and when such transaction is taken in its entiretyon an arm’s-length basis; and (ii2) the Company Issuer delivers to the Trustee, Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $35.0 50.0 million, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officers’ Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by the Board of Directors of the Company, including a majority of the disinterested members of the Board of Directors of the Company or the Company’s conflicts committee clause (or other committee serving similar function), if any1) above. (b) The following items will foregoing provisions shall not be deemed to be Affiliate Transactions and, therefore, will not be subject apply to the provisions of Section 5.12(a):following: (1) (i) any employment, severance, employee benefit, director transactions between or officer indemnification, equity award, equity option or equity appreciation or other compensation agreement or plan entered into by among the Company or Issuer and/or any of its Restricted Subsidiaries in the ordinary course or any entity that becomes a Restricted Subsidiary as a result of business such transaction and payments, awards, grants (ii) any merger or issuances of securities pursuant thereto (including any consolidation of the foregoing for the benefit of employees, officer and directors of Affiliates Issuer or any direct or indirect parent of the Company)Issuer; provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger or consolidation is otherwise in compliance with the terms of this Indenture; (ii2) transactions between or among any of the Company and its Restricted Subsidiaries (including Excluded Project Subsidiaries); (iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or otherwise controls, such Person; (iv) transactions effected in accordance with (A) the terms of agreements or arrangements in effect on the Closing Date, (B) any amendment or replacement of any of such agreements or (C) any agreements entered into hereafter that are similar to any of such agreements, so long as, in the case of clause (B) or (C), the terms of any such amendment or replacement agreement or future agreement are, on the whole either not materially less advantageous to the Company or not materially less favorable to the Holders than the agreement so amended or replaced or the similar agreement referred to in the preceding clause (A), respectively; (v) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of the Company, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (vi) sales of Equity Interests (other than Disqualified Stock) to Affiliates of the Company, or receipt by the Company of capital contributions from holders of its Equity Interests, or payments to Affiliates with respect to Indebtedness of the Company or any Restricted Subsidiary in accordance with its terms, provided that the Affiliate is treated no more favorably than other holders of such Indebtedness; (vii) Permitted Investments or Restricted Payments that are permitted by Section 5.9; (viii) (A) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries or Joint Ventures in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, 1010 and (B) pledges by the Company or any Restricted Subsidiary of Capital Stock in Unrestricted Subsidiaries or Joint Ventures for the benefit of lenders or other creditors of Unrestricted Subsidiaries or Joint Ventures as contemplated by the definition of “Permitted LiensInvestments”; (ix3) transactions between the Company pursuant to compensatory, benefit and any Personincentive plans and similar agreements with officers, a director of which is also a director directors, managers or employees of the Company; provided, that such director abstains from voting as a director of the Company on any matter involving such other Person; and (x) any transaction in which the Company Issuer or any of its Restricted Subsidiaries; (4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, former, current or future officers, directors, managers, employees or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary; (5) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such transaction meets the requirements of Section 5.12(a)Restricted Subsidiary with an unrelated Person on an arm’s-length basis; (xi6) any agreement or arrangement in effect as of the Issue Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date) or any transaction or payments contemplated thereby; (7) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Issuer or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect when taken as a whole; (8) the Transactions and the payment of all fees and expenses related to the Transactions, in each case, as contemplated in the Offering Document; (9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performance of customary registration rights; (11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (12) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or reimbursements former employees, officers, directors, managers or consultants of expenses incurred the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by employees the Issuer in good faith; (13) any transaction in which the only consideration paid by the Issuer or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Issuer; (14) payments to any future, current or former employee, director, manager, officer, manager or consultant of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment or severance agreements, stock option plans, severance plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants that are, in each case, approved by the Issuer in good faith; (15) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person; (16) payments by the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any direct or indirect parent company of the Issuer) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for movingsuch fiscal year were the Issuer, entertainment its Restricted Subsidiaries and travel expenses its Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such direct or indirect parent company of the Issuer; (17) any lease entered into between the Issuer or any Restricted Subsidiary and similar expenditures any Affiliate of the Issuer in the ordinary course of business; (18) intellectual property licenses in the ordinary course of business; (19) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person; (20) pledges of Equity Interests of Unrestricted Subsidiaries; (21) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and (xii22) in any merger, consolidation or reorganization of the case of contracts for supplies, raw materials, inventory Issuer or other goods or services or activities reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Company or any Restricted Subsidiary and third parties, with an Affiliate of the Issuer or if neither the Company nor any Restricted Subsidiary has entered into solely for the purpose of reincorporating the Issuer or Restricted Subsidiary in a similar contract with a third party, then the terms are no less favorable than those that would reasonably be expected to be available from third parties on an arm’s-length basisnew jurisdiction.