RESPECT TO THE PRO FORMA INCOME STATEMENT AND PRO FORMA STATEMENT OF CASH FLOWS,
HAD OCCURRED
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ON THE FIRST DAY OF SUCH FOUR FISCAL QUARTER PERIOD AND (B) THE FORECASTS DATED
FEBRUARY 26, 2004 PREPARED BY MANAGEMENT OF THE BORROWER OF BALANCE SHEETS,
INCOME STATEMENTS AND CASH FLOW STATEMENTS FOR EACH MONTH FOR THE FIRST TWELVE
MONTHS FOLLOWING THE CLOSING DATE AND FOR EACH YEAR COMMENCING WITH THE FIRST
FISCAL YEAR FOLLOWING THE CLOSING DATE FOR THE TERM OF THE FACILITIES.
(XVII)
CERTIFIED COPIES OF THE NU-GRO ACQUISITION DOCUMENTS DULY EXECUTED
BY THE PARTIES THERETO, WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT.
(B)
(I) THE ACQUISITION SHALL BE CONSUMMATED SIMULTANEOUSLY WITH THE
INITIAL CREDIT EXTENSION IN ACCORDANCE WITH APPLICABLE LAW (INCLUDING THE
REQUISITE APPROVAL BY 662/3% OF NU-GRO'S SHAREHOLDERS ATTENDING NU-GRO'S
SHAREHOLDERS' MEETING HELD FOR SUCH PURPOSE AND THE REQUISITE COURT APPROVAL)
AND IN ACCORDANCE WITH THE TERMS OF THE ARRANGEMENT AGREEMENT AND (II) THE U.S.
REORGANIZATION SHALL HAVE BEEN CONSUMMATED SIMULTANEOUSLY WITH THE INITIAL
CREDIT EXTENSION.
(C)
THE ADMINISTRATIVE AGENT SHALL BE REASONABLY SATISFIED THAT THERE
HAS BEEN NO MATERIAL ADVERSE CHANGE (FROM THE STANDPOINT OF THE LENDERS) IN THE
PRO FORMA CAPITAL AND OWNERSHIP STRUCTURE AND THE SHAREHOLDER ARRANGEMENTS OF
THE BORROWER AND EACH OF THE GUARANTORS SINCE FEBRUARY 29, 2004 (OTHER THAN AS
TO BE EFFECTED PURSUANT TO THE NU-GRO TRANSACTION).
(D)
THERE SHALL NOT HAVE OCCURRED AN ADVERSE CHANGE OF $1,000,000 OR
MORE IN THE BUSINESS, OPERATIONS (INCLUDING RESULTS OF OPERATIONS), ASSETS,
PROPERTIES, CAPITAL OR CONDITION (FINANCIAL OR OTHERWISE) OF NU-GRO AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE, SINCE SEPTEMBER 30, 2003.
(E)
ALL GOVERNMENTAL, SHAREHOLDER AND MATERIAL THIRD PARTY CONSENTS
AND APPROVALS (INCLUDING, WITHOUT LIMITATION, HART-SCOTT-RODINO CLEARANCE AND
COMPETITION ACT (CANADA) AND INVESTMENT CANADA ACT APPROVALS, IF APPLICABLE)
NECESSARY IN CONNECTION WITH THE NU-GRO TRANSACTION SHALL HAVE BEEN OBTAINED AND
SHALL REMAIN IN EFFECT; ALL APPLICABLE WAITING PERIODS IN CONNECTION WITH THE
NU-GRO TRANSACTION SHALL HAVE EXPIRED WITHOUT ANY ACTION BEING TAKEN BY ANY
GOVERNMENTAL AUTHORITY, THAT COULD RESTRAIN, PREVENT OR IMPOSE MATERIALLY
ADVERSE CONDITIONS UPON THE BORROWER AND ITS SUBSIDIARIES OR THAT COULD SEEK OR
THREATEN ANY OF THE FOREGOING IN ANY MATERIAL RESPECT, AND NO LAW SHALL BE
APPLICABLE WHICH IN THE REASONABLE JUDGMENT OF THE ADMINISTRATIVE AGENT COULD
REASONABLY BE EXPECTED TO HAVE SUCH EFFECT.
(F)
THERE SHALL EXIST NO ACTION, SUIT, INVESTIGATION OR PROCEEDING
AFFECTING ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES PENDING OR, TO THE KNOWLEDGE
OF THE BORROWER, THREATENED BEFORE ANY GOVERNMENTAL AUTHORITY OR ARBITRATOR THAT
COULD BE REASONABLY BE EXPECTED TO HAVE A NU-GRO MATERIAL ADVERSE EFFECT.
(G)
ALL LOANS MADE BY THE LENDERS TO THE BORROWER SHALL BE IN FULL
COMPLIANCE WITH THE FEDERAL RESERVE'S MARGIN REGULATIONS.
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(H)
THE LENDERS SHALL BE SATISFIED THAT THE AMOUNT, TERMS, CONDITIONS
AND HOLDERS OF ALL INTERCOMPANY INDEBTEDNESS (IT BEING UNDERSTOOD THAT
INTERCOMPANY INDEBTEDNESS CONTEMPLATED BY THE NU-GRO TRANSACTION AND DESCRIBED
TO THE LEAD ARRANGERS PRIOR TO FEBRUARY 29, 2004