assets of any kind or the
rendering of services of any kind) otherwise permitted under the Loan Documents
with any of their Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower (or upon consummation of the Holding Company Event,
Holdings) or any of its Subsidiaries than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate thereof, other than:
(A)
THE PERFORMANCE BY THE BORROWER AND ITS
SUBSIDIARIES OF ITS OBLIGATIONS UNDER THE NU-GRO ACQUISITION DOCUMENTS, AS IN
EFFECT ON THE INITIAL CLOSING DATE, AND THE UPG ACQUISITION DOCUMENTS, AS IN
EFFECT ON THE AMENDMENT AND RESTATEMENT CLOSING DATE OR, IN EACH CASE AS THE
SAME MAY BE AMENDED PURSUANT TO SECTION 7.14 AND THE PAYMENT OF FEES AND
EXPENSES IN CONNECTION THEREWITH;
(B)
THE PAYMENT OF MANAGEMENT FEES TO THE
SPONSOR PURSUANT TO THE TERMS OF THE PROFESSIONAL SERVICES AGREEMENT, AS IN
EFFECT ON THE INITIAL CLOSING DATE, IN AN AGGREGATE AMOUNT NOT TO EXCEED
$1,000,000 IN ANY FISCAL YEAR;
(C)
THE PAYMENT OF NONRECURRING TRANSACTION
FEES TO THE SPONSOR IN CONNECTION WITH ANY PURCHASE OR OTHER ACQUISITION OF A
PERSON, SUBSTANTIALLY ALL OR ALL OF THE ASSETS OF A PERSON OR A LINE OF BUSINESS
OR DIVISION OF A PERSON BY ANY LOAN PARTY OR ANY OF THEIR SUBSIDIARIES IN AN
AMOUNT NOT TO EXCEED 1% OF THE TOTAL CONSIDERATION BEING PAID BY SUCH LOAN PARTY
AND ITS RESPECTIVE SUBSIDIARIES FOR SUCH PURCHASE OR OTHER ACQUISITION, SUCH
FEE, IN EACH CASE, TO BE PAYABLE IN FULL UPON THE CONSUMMATION OF THE RELATED
PURCHASE OR OTHER ACQUISITION;
(D)
ANY TRANSACTION OR SERIES OF RELATED
TRANSACTIONS SOLELY BETWEEN OR AMONG (I) HOLDINGS OR THE BORROWER, ON THE ONE
HAND, AND ONE OR MORE OF THE RESTRICTED SUBSIDIARIES ON THE OTHER HAND, (II) ONE
OR MORE OF THE RESTRICTED SUBSIDIARIES, OR (III) ONE OR MORE OF THE UNRESTRICTED
SUBSIDIARIES, ON THE ONE HAND, AND HOLDINGS, THE BORROWER OR ANY RESTRICTED
SUBSIDIARY, ON THE OTHER HAND, IN THE CASE OF THIS CLAUSE (III) TO THE EXTENT
SUCH TRANSACTION OR SERIES OF RELATED TRANSACTIONS IS NOT OTHERWISE PROHIBITED
UNDER THE TERMS OF THE LOAN DOCUMENTS;
(E)
EQUITY ISSUANCES BY HOLDINGS NOT PROHIBITED
BY THIS AGREEMENT;
99
(F)
CUSTOMARY FEES MAY BE PAID TO ANY
DIRECTORS OF HOLDINGS AND REIMBURSEMENT MAY BE MADE OF REASONABLE OUT-OF-POCKET
COSTS OF THE DIRECTORS OF HOLDINGS;
(G)
EACH LOAN PARTY AND THEIR RESPECTIVE
SUBSIDIARIES MAY ENTER INTO EMPLOYMENT AND SEVERANCE ARRANGEMENTS WITH THEIR
RESPECTIVE OFFICERS AND EMPLOYEES IN THE ORDINARY COURSE OF BUSINESS;
(H)
EACH LOAN PARTY AND THEIR RESPECTIVE
SUBSIDIARIES MAY PERFORM OBLIGATIONS UNDER ANY EMPLOYMENT CONTRACT, COLLECTIVE
BARGAINING AGREEMENT, EMPLOYEE BENEFIT PLAN, RELATED TRUST AGREEMENT OR ANY
OTHER SIMILAR ARRANGEMENT HERETOFORE OR HEREAFTER ENTERED INTO IN THE ORDINARY
COURSE OF BUSINESS AND NOT OTHERWISE PROHIBITED HEREUNDER;
(I)
EACH LOAN PARTY AND THEIR RESPECTIVE
SUBSIDIARIES MAY MAINTAIN BENEFIT PROGRAMS OR ARRANGEMENTS FOR THEIR RESPECTIVE
EMPLOYEES, OFFICERS OR DIRECTORS, INCLUDING, WITHOUT LIMITATION, VACATION PLANS,
HEALTH AND LIFE