TRUE TEMPER SPORTS INC
Business           3
Risk   Factors           11
Unresolved Staff Comments           16
Facility               Location       Approx.   Sq. Ft.       Owned/   Leased       Lease   Expiration   Date         Corporate Offices       Memphis,   Tennessee       15,241       Leased       June 2011         Steel   Shaft/Tubing Mfg.       Amory,   Mississippi       335,000       Leased       January 2063(1)         Composite Shaft   Mfg.       Guangzhou,   China       88,000       Leased       March 2008         Composite Shaft   Mfg.       El   Cajon, California       45,907       Leased       October 2008         Building       Olive   Branch, Mississippi       5,300       Leased       March 2007         Test Facility       Robinsonville,   Mississippi       1,000   (2)   Leased       March 2008          (1)          There are several leases covering the original land as well as the building at our Amory, Mississippi facility. The leases are structured with interim renewal periods of between 5 to 10 years, extending through January 2063. At the end of each of these renewal periods, we have the option to allow a lease to automatically renew or to not renew the lease. (2)          Included with the leased space is 14 acres of land which we use as a driving range to assess various qualitative and quantitative tests on product performance. In addition, we promote our products in international markets through sales and distribution offices in Australia, Japan and the United Kingdom, and we also distribute our product in Southeast Asia from our distribution warehouse in Hong Kong. To the extent that any such properties are leased, we expect to be able to renew such leases or to lease comparable facilities on terms commercially acceptable to us. Item 3.                        Legal Proceedings Various claims and legal proceedings, generally incidental to the normal course of business, are pending or threatened against us. While we cannot predict the outcome of these matters, in the opinion of management, any liability arising from these matters will not have a material adverse effect on our business, financial condition or results of operations. Item 4.                        Submission of Matters to a Vote of Security Holders There were no matters submitted to a vote of security holders during 2005. 17     PART II Item 5.                        Market for Registrant’s Common Equity and Related Stockholder Matters and Issuer Purchases of Equity Securities There is no public market for the Company’s equity securities. All of the Company’s capital stock is owned by True Temper Corporation. The Company paid no dividends on its shares of common stock in 2004 or 2005. The Company’s various debt instruments impose restrictions on the payment of dividends by means of covenants. The Company was in compliance with all debt covenants as of December 31, 2005. There were no purchases of the Company’s equity securities by or on behalf of the Company or any affiliated purchaser during the fourth quarter of 2005. 18
Legal Proceedings           17             Item   4       Submission of Matters to a   Vote of Security Holders           17             PART II                                 Item   5       Market for Registrant’s   Common Equity and Related Stockholder Matters and Issuer Purchases of   Equity Securities           18
Successor   Company       Predecessor Company                 Year   Ended   December 31,       Period from   March 15 to   December 31,       Period from   January 1 to   March 14,       Year Ended December 31,                 2005       2004       2004       2003       2002       2001                 (Dollars in thousands)         STATEMENT OF OPERATIONS   DATA:                                                         Net sales           $   117,594               $   78,120               $   20,247           $   116,206       $   107,401       $   111,083         Gross profit           47,232               18,016               8,376           46,736       42,240       43,348         Selling, general and administrative   expenses           14,660               9,520               3,635           14,747       13,578       14,963         Amortization of goodwill(1)           —               —               —           —       —       2,695         Amortization of intangible assets(2)           13,840               10,984               —           —       —       —         Impairment charge on long lived assets(3)           357               —               —           —       —       —         Business development, start-up costs and transition   costs(4)           208               738               100           869       312       —         Transaction and reorganization   expenses(5)           —               25               5,381           —       —       —         Loss on early extinguishment of long-term debt(5)           —               —               9,217           —       777       —         Operating income (loss)           18,167               (3,251   )           (9,957   )       31,120       27,573       25,690         Interest expense, net of interest income           18,631               13,491               2,498           13,017       12,236       12,660         Income tax (benefit) expense(6)           33               (6,350   )           (2,845   )       7,113       5,992       (11,539   )     Net income (loss)           (466)               (10,464   )           (9,608   )       10,858       9,252       24,571         BALANCE SHEET DATA (AT   END OF PERIOD):                                                                                 Working capital(7)           $   26,861               $   25,324               $   14,551           $   15,372       $   14,828       $   14,748         Total assets           348,055               360,825               178,057           179,616       183,380       189,330         Total debt(8)           220,725               232,725               106,030           113,730       124,730       116,522         Total stockholder’s equity           99,764               101,330               39,064           48,793       43,068       61,303         OTHER FINANCIAL DATA:                                                                                 Cash from operating activities           $   15,936               $   6,702               $   2,982           $   21,402       $   19,903       $   12,162         Cash used in investing activities           (2,031   )           (1,182   )           (330   )       (3,460   )   (1,164   )   (2,291   )     Cash used in financing activities           (12,509   )           (5,019   )           (8,205   )       (16,623   )   (19,846   )   (5,862   )     Depreciation and goodwill   amortization(9)           2,725               2,420               671           2,906       3,252       6,208         Capital expenditures           $   2,612               $   1,232               $   330           $   3,460       $   1,164       $   2,001         Ratio of earnings   to fixed charges(10)            1.0x               n/a               n/a           2.3x       2.2x       2.0x          (1)    As of January 1, 2002 the Company adopted the provisions of SFAS No. 142, Goodwill and Other Intangible Assets. This statement requires goodwill and intangible assets acquired in a purchase business combination and determined to have an indefinite useful life not be amortized, but instead tested for impairment at least annually in accordance with the provisions of SFAS No. 142. In accordance with SFAS No. 142 the Company ceased  19    amortizing goodwill as of January 1, 2002 and tested for impairment finding there was no impairment. Prior to the adoption of SFAS No. 142, goodwill was amortized on a straight-line basis over the expected periods to be benefited, generally between 20 and 40 years. See Note 2(g) to the financial statements included elsewhere in this annual report for further discussion. (2)    As of January 1, 2002 the Company adopted the provisions of SFAS No. 141, Business Combinations. This statement requires the identification and valuation of intangible assets acquired in a business combination. Identifiable intangible assets determined to have definitive lives must be amortized over those expected useful lives. Certain intangible assets with definitive lives were identified, and the amortization expense during the period from March 15, 2004 through December 31, 2005 relates to the amortization of these intangibles. See Note 3 to the financial statements included elsewhere in this annual report for further discussion. (3)    Impairment charge on long-lived assets reflects the 2005 write-down, and subsequent disposal, of certain manufacturing equipment originally obtained through the acquisition of substantially all of the tangible personal property of Apollo Sports in 2000. Apollo Sports was a steel golf shaft competitor in England that went out of business in 2000. A significant portion of the assets acquired were subsequently transferred to True Temper’s Amory, Mississippi facility. This write-off represents the remainder of the assets located in the United Kingdom that were deemed unusable. (4)    Reflects various start-up business expenses related to the opening of the Company’s composite manufacturing operation in southern China, and the related down-sizing costs incurred at the Company’s El Cajon California facility. For a more complete discussion of business development and start-up costs see Note 2(j) to the financial statements included elsewhere in this annual report. (5)    On January 30, 2004, TTS Holdings LLC, a new company formed by Gilbert Global Equity Partners, L.P. and its affiliated funds (“Gilbert Global”), entered into a stock purchase agreement with the Company’s direct parent company, True Temper Corporation, pursuant to which TTS Holdings LLC and certain of the Company’s senior management purchased all of the outstanding shares of True Temper Corporation. In connection with this acquisition, and effective on March 15, 2004, the Company repaid all of its outstanding 2002 senior credit facility, redeemed all of its 107¤8% senior subordinated notes due 2008, and made certain payments of the net remaining equity of the predecessor company to the selling shareholders. These payments were financed with the net proceeds of a new senior credit facility and new 83¤8% senior subordinated notes due 2011. As a result of this transaction, the Company incurred certain expenses for legal, investment banking and other matters; and also recognized a loss on early extinguishment of its 107¤8% senior subordinated notes due 2008. See Note 3 to the financial statements included elsewhere in this annual report for further discussion. (6)    The 2001 income tax benefit reflects the elimination of the $17,600 valuation allowance. (7)    Working capital includes current assets less current liabilities, excluding cash and cash equivalents. (8)    Total debt includes both the current and long-term portions of debt and capital lease obligations. (9)    Depreciation and goodwill amortization (goodwill amortization for years prior to 2002) excludes amortization of intangible assets and amortization of deferred financing cost. (10)  Earnings in 2004 were insufficient to cover fixed costs. 20
During 2004 the Company was forced to manage costs very closely in a difficult overall golf market. During this past year, the Company continued its focus on cost controls and productivity, along with the backdrop of improving revenue. The Company made appropriate modifications to its pricing policies, managed the mix of products being sold, endeavored to reduce usage of natural gas, and redoubled its efforts aimed at productivity in its various manufacturing facilities in order to offset inflationary pressures in overall energy costs and raw materials. These initiatives resulted in pushing full year gross profit margins back over 40%, a feat achieved only twice in the Company’s history. These revenue gains and favorable gross profit results enabled the Company to make voluntary repayments on its bank debt totaling $12.0 million during 2005; reducing its overall leverage significantly, and positioning the Company well for the challenges of 2006. Outlook—2006 In 2006, the Company plans to expand and enhance its position within the golf market and grow its presence in the performance sports markets with emphasis on hockey sticks and high end bicycle components. In keeping with this plan, the Company has recently developed and launched several new golf products for 2006, including: ·  Black Gold, a steel golf shaft combining pinpoint frequency tuning with exacting weight and balance specifications for the utmost consistency; ·  M-80, utilizing a new alloy to create one of the lightest steel golf shafts ever made; ·  Prototype CompNT Hybrid, a graphite golf shaft incorporating carbon nano-tubes into the resin system to dramatically improve strength properties and playabilty. In addition, the Company has a number of new steel and graphite golf products under development, with scheduled launches during the second half of 2006. In addition, a number of its OEM partners are preparing for club launches during the second half of the year that include either branded or proprietary shafts manufactured by True Temper. The Company’s performance sports segment is also well positioned for growth in 2006. It has completed the transition of all carbon fiber hockey and bike production into its Guangzhou, China facility, and for 2006 has expanded its manufacturing capability to enable production of several new hockey and bike components such as hockey blades and full one-piece sticks. The Company’s internal targets are for the growth rate in this segment to continue at its double digit pace, and to exceed that of its overall golf business percentage gains in 2006. While the Company remains excited about these internally driven revenue growth initiatives, expectations are moderated somewhat by the modest growth projections for the overall golf industry. Key market statistics such as rounds played and equipment sales appear to be trending upward, but are not expected to be robust in the coming twelve months. This will drive the Company to maintain its focus on new products and marketshare initiatives in the golf industry. Although the Company expects that these internal and external factors will favorably benefit its business, such outcomes are subject to uncertainties and unforeseeable factors relating to internal operations and the overall business environment, all of which are difficult to predict and many of which are beyond the Company’s control. Actual future results may vary materially as a result of various risks and uncertainties, including but not limited to, a reduction in discretionary consumer spending or a general downturn in the economy.  See Item 1A “Risk Factors” for a complete discussion of these and other risk factors. 22    Results of Operations The following table sets forth the components of net income as a percentage of net sales for the periods indicated:             Successor   Company       Combined   Company       Successor   Company       Predecessor   Company       Predecessor   Company                 Year Ended   December 31,   2005       Year Ended   December 31,   2004       Period from   March 15 to   December 31,   2004       Period from   January 1 to   March 14,   2004       Year Ended   December 31,   2003         Net sales           100.0   %           100.0   %           100.0   %           100.0   %           100.0   %         Cost of sales           59.8               73.2               76.9               58.6               59.8             Gross profit           40.2               26.8               23.1               41.4               40.2             Selling, general and   administrative   expenses           12.5               13.4               12.2               18.0               12.7             Amortization of   intangible assets           11.8               11.2               14.1               —               —             Business development,   start-up and transition costs           0.2               0.9               0.9               0.5               0.7             Transaction and   reorganization expenses           —               5.5               —               26.6               —             Impairment charge on   long lived assets           0.3               —               —               —               —             Loss on early   extinguishment of debt           —               9.4               —               45.5               —             Operating income (loss)           15.4               (13.4   )           (4.2   )           (49.2   )           26.8             Interest expense, net of   interest income           15.8               16.3               17.3               12.3               11.2             Other expenses, net           —               0.1               0.1               —               0.1             Income (loss) before   income taxes           (0.4   )           (29.8   )           (21.5   )           (61.5   )           15.5             Income tax (benefit)   expense           0.0               (9.3   )           (8.1   )           (14.1   )           6.1             Net income (loss)           (0.4   )%           (20.4   )%           (13.4   )%           (47.5   )%           9.3   %           Year Ended December 31, 2005 Compared to the Year Ended December 31, 2004 Net Sales for 2005 increased approximately $19.2 million, or 19.5%, to $117.6 million from $98.4 million in 2004.  Golf shaft sales increased approximately $18.5 million, or 20.0%, to $110.8 million in 2005 from $92.3 million in 2004.  This improvement in revenue was driven by several factors, including a favorable shift in the mix of steel golf shafts sold towards more premium, branded products.  In addition, the Company generated greater unit sales of graphite golf shafts, which can be attributed to several factors, including: ·  Increased demand for the Company’s new product offerings such as the Grafalloy ProLaunch graphite shaft, Grafalloy Blue iron shaft, and its recently introduced hybrid graphite shafts; ·  A greater number of successful new club introductions from several key OEM partners; ·  General reductions in the overall wholesale and retail channel inventory positions as compared to prior year levels; and ·  Increased acceptance and usage of the Company’s graphite golf shaft products in certain OEM partners’ custom option programs, primarily in the Grafalloy Blue and ProLaunch family of products.   Performance sports sales increased approximately $0.7 million, or 12.3%, to $6.8 million in 2005 from $6.0 million in 2004.  This increase in revenue was driven primarily by sales growth in the Company’s bike and hockey categories, which remain the strategic focus for the performance sports segment, and comprise the majority of the segment’s new products initiatives. Net sales to international customers increased approximately $5.9 million, or 16.2%, to $42.4 million in 2005 from $36.5 million in 2004.  This increase resulted primarily from the same overall golf industry  23    factors and Company specific issues described above, related to golf shaft sales activity.  In addition, the Company has seen a marked increase in its penetration into the steel golf shaft market in Japan; due primarily to its new, light-weight steel shaft offerings that are being well received by the Japanese golfers and overseas OEM club companies. Gross Profit for 2005 increased approximately $20.8 million, or 79.0%, to $47.2 million from $26.4 million in 2004. Gross profit as a percentage of net sales increased to 40.2% in 2005 from 26.8% in 2004. As a result of the application of purchase accounting to record the Gilbert Global Acquisition, the Company increased the value of inventory, to reflect its estimated fair value at the date of acquisition, by $11.7 million which was subsequently reflected in cost of sales corresponding with the related subsequent sales activity during 2004.  This inventory fair value adjustment and related recognition in cost of sales is a non-cash transaction and affects only the 2004 results of operations.  The following paragraph describes the gross profit results of the Company excluding the impact of this purchase accounting adjustment. Gross Profit for 2005 increased approximately $9.2 million, or 24.1%, to $47.2 million from $38.1 million in 2004. Gross profit as a percentage of net sales increased to 40.2% in 2005 from 38.7% in 2004.  The increase in gross profit as a percentage of net sales was driven primarily by (i) increased selling prices for golf shaft products, (ii) favorable product mix in the premium steel golf shaft segment, (iii) improved foreign currency exchange rates, and (iv) favorable operating improvements from productivity and cost control programs at the Company’s manufacturing facilities, including the labor cost savings realized from the transition of graphite product manufacturing to Guangzhou, China.  These favorable factors were partially offset by (i) an increase in the cost of raw materials and natural gas and (ii) the impact of general inflation on the Company’s other labor and overhead costs. Selling, General and Administrative (“SG&A”) Expenses for 2005 increased approximately $1.5 million, or 11.4%, to $14.7 million from $13.2 million in 2004.  SG&A as a percentage of net sales decreased to 12.5% in 2005 from 13.4% in 2004.  This decrease in SG&A as a percentage of net sales was due primarily to the increase in sales between periods.  The increase in SG&A spending between periods was due in part to (i) incremental advertising and promotion of new products, (ii) performance based management expense, and (iii) moderate increases in travel costs in support of the revenue gains. During 2005 the Company spent approximately $0.2 million on its initial compliance project related to Section 404 of the Sarbanes-Oxley Act of 2002 (“SOX”).  In 2004 the Company spent approximately $0.1 million on SOX initial compliance.  Amortization of Intangible Assets for 2005 was $13.8 million.  Intangible assets were acquired in connection with the Gilbert Global Acquisition.  Intangible assets with definitive lives are being amortized using a straight-line method over periods from 2 to 59 years.  Amortization of intangible assets in 2004 was $11.0 million, which represented amortization from March 15, 2004 through December 31, 2004. Business Development, Start-Up and Transition Costs for 2005 decreased approximately $0.6 million, or 75.2%, to $0.2 million from $0.8 million in 2004.   These costs represent various start-up business expenses related to the opening of the Company’s composite manufacturing operation in Southern China, and the related down-sizing costs incurred at the Company’s El Cajon, California facility.  The decrease in cost reflects the fact that this project is substantially complete. Transaction and Reorganization Expenses for 2004 were $5.4 million and were incurred in conjunction with the sale and purchase agreement for TTC which closed on March 15, 2004.  These transaction related expenses include (i) investment banking merger and acquisition fees; (ii) legal fees; and (iii) other incidental costs and expenses related to the sale of TTC.  No such transaction and reorganization expenses were incurred during 2005. 24    Impairment Charge On Long-Lived Assets for 2005 was $0.4 million and was incurred in conjunction with the write-down, and subsequent disposal, of certain manufacturing equipment originally obtained through the acquisition of substantially all of the tangible, personal property of Apollo Sports in 2000.  Apollo Sports was a steel golf shaft competitor in England that went out of business in 2000.  A significant portion of the assets acquired were subsequently transferred to the Company’s Amory, Mississippi facility.  This write-off represents the remainder of the assets located in the United Kingdom that were deemed unusable.  No such charges were incurred during 2004. Loss on the Early Extinguishment of Long-Term Debt for 2004 was $9.2 million.  The costs recorded as loss on the early extinguishment of long-term debt include (i) the write-off of the remaining deferred financing costs related to our 10 7/8% senior subordinated notes and our 2002 senior credit facility, and (ii) the early extinguishment call premium and related interest we incurred when we redeemed the 10 7/8% senior subordinated notes on March 15, 2004.  No long-term debt was extinguished during 2005. Operating Income for 2005 increased approximately $31.4 million to $18.2 million from an operating loss of $13.2 million in 2004. Operating income as a percentage of net sales increased to 15.4% in 2005 from a loss of 13.4% in 2004. This increase reflects the profit impact of the items described above. Excluding the impact of the 2004 inventory purchase accounting adjustment, 2004 transaction and reorganization expenses, 2004 loss on early extinguishment of long-term debt, 2005 impairment charge on long-lived assets, and the amortization of intangible assets in both 2004 and 2005, operating income would have increased approximately $8.3 million.   Interest Expense, net of Interest Income for 2005 increased approximately $2.6 million to $18.7 million from $16.0 million in 2004.  This increase was driven primarily by the increase in outstanding principal amounts of variable rate bank debt and fixed rate bonds associated with the Gilbert Global Acquisition, offset somewhat by a decrease in the interest rate on the Company’s fixed rate debt between periods. Income Tax Expense for 2005 changed to approximately $0.0 compared to an income tax benefit of $9.2 million in 2004. The effective tax rate during these periods differs from a federal statutory rate of 34% due primarily to the incremental tax rate for state and foreign income tax purposes.  For the period from January 1, 2004 through March 14, 2004, the effective tax rate also differs due to the nondeductible nature of a portion of transaction and reorganization expenses.   Net Income for 2005 increased approximately $19.6 million to a net loss of $0.5 million from a net loss of $20.1 million in 2004.  This increase reflects the profit impact from the items described above. Excluding the impact of the 2004 inventory purchase accounting adjustment, 2004 transaction and reorganization expenses, 2004 loss on early extinguishment of long-term debt, 2005 impairment charge on long-lived assets, and the amortization of intangible assets in both 2004 and 2005, net income would have increased approximately $3.4 million. Year Ended December 31, 2004 Compared to the Year Ended December 31, 2003 Net sales for 2004 decreased $17.8 million, or 15.4%, to $98.4 million from $116.2 million in 2003. Net sales of golf shafts decreased by $17.4 million to $92.3 million in 2004 from $109.8 million in 2003. This decline in sales is driven by several factors which include: ·       An overall reduction of major new club introductions during 2004, as many original equipment manufacturers (“OEMs”) repositioned their launch plans for 2005 in light of the year’s market conditions; ·       Continued declines in shipments of certain products into the retail market, and discounting programs intended to clear the excess inventory of existing products through the distribution channel; 25    ·       A temporary shift in product mix within the Company’s premium steel shaft category, which caused a modest decline in the Company’s average selling price; and ·       A decline in the Company’s graphite unit volume driven by weaker retail sell-through and demand from some of the Company’s major OEM partners. During the second half of 2004, it also became apparent that the inventory levels in the distribution channel were somewhat larger than once thought, as the extensive channel clearing continued through year-end. In addition, the OEM product launch delays the Company was experiencing in the first half of the year became even more extended. In some cases they were repositioned as spring 2005 launches. The golf industry was also impacted by severe weather related events across the United States. The Company believes that these unfavorable market dynamics are not isolated to individual customers or distribution channels, as sales to top OEM and golf distributors are flat to down at the majority of the Company’s key accounts. Performance sports net sales decreased by $0.5 million to $6.0 million in 2004 from $6.5 million in 2003. This decline was driven primarily by a sales reduction in our hockey category as we continued to develop our product line and customer base in this new market. Net sales to our international customers remained relatively flat compared to 2003 at $36.5 million. Net sales to our international customers as a percentage of total net sales increased to 37.1% in 2004 compared to 31.5% in 2003. This increase was driven by improved foreign currency exchange rates in Japan, the United Kingdom and Australia, and an increase in units shipped into Southeast Asia as major OEM’s continue to locate a portion of their golf club assembly in that region. These positive factors were somewhat offset by a decline in the unit sales volume in the United Kingdom as they experienced similar market factors as described above for the Company’s overall golf sales. Gross Profit for the year decreased $20.3 million, or 43.5%, to $26.4 million in 2004 from $46.7 million in 2003. Gross profit as a percentage of net sales decreased to 26.8% from 40.2% the prior year. As a result of the application of purchase accounting to record the Gilbert Global Acquisition the Company increased the value of inventory, to reflect its estimated fair value at the date of acquisition, by $11.7 million which was subsequently reflected in cost of sales corresponding with the related subsequent sales activity during 2004. This inventory fair value adjustment and related recognition in cost of sales is a non-cash transaction and affects only the 2004 results of operations. The following two paragraphs describe the gross profit results of the Company excluding the impact of this purchase accounting adjustment. Gross Profit for the year decreased $8.7 million, or 18.6%, to $38.1 million in 2004 from $46.7 million in 2003. Gross profit as a percentage of net sales decreased to 38.7% from 40.2% the prior year. The Company’s gross profit margin decreased as a result of several factors, including (i) an increase in the cost of raw materials and natural gas, (ii) continued escalation in the cost of employee healthcare benefits, (iii) the unfavorable impact of certain fixed costs in the Company’s manufacturing facilities spread over a reduced unit volume, and (iv) an unfavorable product mix shift in the Company’s premium steel shaft category. These factors were somewhat offset by the favorable impact of (i) improved foreign currency exchange rates, (ii) increased selling prices on branded and other products, (iii) favorable operating improvements from productivity programs at the Company’s manufacturing facilities, and (iv) the impact of cost control actions initiated during 2004 in response to the softness on the revenue line. 26     In the second quarter of 2003 the Company paid a ratification bonus of $0.7 million to the hourly employees represented by the United Steelworkers of America related to a new four year collective bargaining agreement effective July 1, 2003. Excluding the impact of this ratification bonus, gross profit as a percentage of net sales would have decreased to 38.7% in 2004 from 40.8% in 2003. Selling, General and Administrative Expenses for the year decreased approximately $1.6 million, or 10.8%, to $13.2 million in 2004 from $14.7 million in 2003. As a percentage of net sales, selling, general and administrative expenses increased to 13.4% in 2004 from 12.7% the prior year. The decrease in total SG&A spending during 2004 resulted primarily from cost control actions initiated in response to the softness on the revenue line. Amortization of Intangible Assets in 2004 was $11.0 million. Intangible assets were acquired in connection with the Gilbert Global Acquisition. Intangible assets with definitive lives are being amortized using a straight-line method over periods from 2 to 59 years.  Business Development, Start-Up Costs and Transition Costs remained relatively flat compared to 2003. In 2003 and 2004 these costs represent various start-up business expenses related to the opening of the Company’s composite manufacturing operation in Southern China, and the related down-sizing costs incurred at the Company’s El Cajon, California facility.  Transaction and Reorganization Expenses for the year were $5.4 million, and were incurred in conjunction with the sale and purchase agreement for TTC which closed on March 15, 2004. These transaction related expenses include (i) investment banking merger and acquisition fees, (ii) legal fees, and (iii) other incidental costs and expenses related to the sale of TTC. No such transaction and reorganization expenses were incurred during 2003. Loss on Early Extinguishment of Long-Term Debt for the year was $9.2 million. The costs recorded as loss on the early extinguishment of long term debt include (i) the write-off of the remaining deferred financing costs related to the Company’s 107¤8% senior subordinated notes and the Company’s 2002 senior credit facility, and (ii) the early extinguishment call premium and related interest the Company incurred when it redeemed the 107¤8% senior subordinated notes on March 15, 2004. No long-term debt was extinguished during 2003. Operating Income in 2004 decreased by $44.3 million, to a loss of $13.2 million compared to income of $31.1 million in 2003. Operating income as a percentage of net sales decreased to a loss of 13.4% in 2004 from income of 26.8% in 2003. This decrease reflects the profit impact of the items described above.  Excluding the impact of the inventory purchase accounting adjustment, amortization of intangible assets, transaction and reorganization expenses and the loss on early extinguishment of long-term debt in 2004 as well as the 2003 ratification bonus, operating income would have decreased approximately $7.7 million. Interest Expense for the year increased by $3.0 million, to $16.0 million in 2004 from $13.0 million in 2003. This increase was driven primarily by the increase in outstanding principal amounts of variable rate bank debt and fixed rate bonds, offset somewhat by a decrease in interest rates on both the variable and fixed rate debt between periods. Income Tax expense decreased by $16.3 million, to a $9.2 million benefit in 2004 from $7.1 million expense in 2003. This decrease was driven primarily by the pretax expenses recorded as a result of the transaction and reorganization on March 15, 2004. The effective tax rate during these periods differs from a federal statutory rate of 34% due primarily to the incremental tax rate for state and foreign income tax purposes. For the period from January 1, 2004 through March 14, 2004 the effective tax rate also differs due to the nondeductible nature of a portion of transaction and reorganization expenses. Net Income in 2004 decreased by approximately $30.9 million, to a loss of $20.1 million from income of $10.9 million in 2003, and reflects the impact of the changes described above.  27    Excluding the impact of the inventory purchase accounting adjustment, amortization of intangible assets, transaction and reorganization expenses and the loss on early extinguishment of long-term debt in 2004 as well as the 2003 ratification bonus, net income in 2004 would have decreased by approximately $6.4 million. Liquidity and Capital Resources The following table shows cash flow activity by source. Discussion of cash flow activity is noted below.             2005       2004         Net cash provided   by operating activities       $   15,936       $   9,684         Net cash used in   investing activities       $   (2,031   )   $   (1,512   )     Net cash used in   financing activities       $   (12,509   )   $   (13,224   )       General At the beginning of 2003 the Company had a senior credit facility (the “2002 Senior Credit Facility”) which included a $15.0 million non-amortizing revolving credit facility and a $25.0 million term loan. Amounts under the revolving credit facility were available on a revolving basis through December 31, 2007. The term loan required quarterly cash interest and principal payments beginning in March 2003 and continuing through December 2007. In addition, the Company had $99.7 million in 107¤8% Senior Subordinated Notes Due 2008 (the “107¤8% Notes”). The 107¤8% Notes required cash interest payments each June 1 and December 1, beginning June 1, 1999. The 107¤8% Notes were redeemable at the Company’s option, under certain circumstances and at certain redemption prices, beginning December 1, 2003. As part of the Gilbert Global Acquisition the Company entered into a new senior credit facility (the “2004 Senior Credit Facility”) which includes a $20.0 million non-amortizing revolving credit facility and a $110.0 million Term B loan (as amended from time to time). The term loan requires cash interest payments and quarterly principal payments beginning June 30, 2004 and continuing through March 15, 2011.  Also in conjunction with the Gilbert Global Acquisition the Company issued new 83¤8% Senior Subordinated Notes due 2011 (the “83¤8% Notes”). The 83¤8% Notes require cash interest payments each March 15th and September 15th commencing on September 15, 2004. The 83¤8% Notes are redeemable at the Company’s option, under certain circumstances and at certain redemption prices, beginning March 15, 2008.  The Company used the proceeds from the 2004 Senior Credit Facility and the 83¤8% Notes to pay off the existing debt that was outstanding at closing on March 15, 2004. Also, a portion of the proceeds were used to pay a dividend to TTC in order that TTC could repay the outstanding balance on its senior discount notes which carried a 13.25% PIK interest rate or a 12.25% cash interest rate.  Both the 2004 Senior Credit Facility and the 83¤8% Notes contain covenants and events of default, including substantial restrictions and provisions which, among other things, limit the Company’s ability to incur additional indebtedness, make acquisitions and capital expenditures, sell assets, create liens or other encumbrances, make certain payments and dividends, or merge or consolidate. The 2004 Senior Credit Facility also requires the Company to maintain certain specified financial ratios and tests including minimum interest coverage and fixed charge coverage ratios, and maximum leverage ratios. Furthermore, the 2004 Senior Credit Facility requires certain mandatory prepayments including payments from the net proceeds of certain asset sales and a portion of the Company’s excess cash flow as defined within the credit agreement. On September 24, 2004 the Company executed an amendment to its 2004 Senior credit Facility (the “Amendment”). The Amendment was approved by the Company, Credit Suisse First Boston acting as  28    administrative agent and collateral agent, and by a majority of the lenders who were party to the 2004 Senior Credit Facility on such date. The Amendment provided adjustments to certain specified financial ratios and tests included in the 2004 Senior Credit Facility. As part of the Amendment, the margin adder on LIBOR based loans was increased from 2.50% to between 2.75% and 3.00%, depending on financial ratios, beginning September 24, 2004 and continuing through December 31, 2005. At December 31, 2005 the Company was in compliance with all of the covenants in both the 2004 Senior Credit Facility and the 83¤8% Notes. On March 27, 2006 the Company amended and restated its 2004 Senior Credit Facility (the “2006 Restatement”).  The Restatement was approved by the Company, Credit Suisse acting as administrative agent and collateral agent, and by a majority of the lenders who were party to the 2004 Senior Credit Facility at that date.  The Restatement includes additional term loans under the Company’s existing Senior Secured Credit Facilities of approximately $15.0 million, amendments that enable the Company to pursue future acquisitions, and the necessary flexibility to execute on the Company’s global strategic and operational initiatives. Discussion of Cash Flows for Years Ended December 31, 2005 and 2004 Net cash provided by operating activities increased approximately $6.3 million between periods, as net income increased during 2005. In addition, the Company decreased total inventory by approximately $2.3 million during 2005. Offsetting the cash from operations generated by the aforementioned items, trade accounts receivable increased approximately $3.4 million during 2005, due primarily to the increase in sales between periods. The Company used $2.6 million of cash to invest in property, plant and equipment in 2005, compared to the $1.6 million spent in 2004. The increase in investments in property, plant and equipment is the result of additional automation efforts aimed at improving quality and productivity in the Company’s manufacturing facilities. In addition, an under-utilized production facility located in Olive Branch, Mississippi was sold during the third quarter of 2005, generating net proceeds of approximately $0.8 million. The Company used $12.5 million of net cash for financing activities in 2005 as compared to $13.2 million in 2004. The 2005 activity includes voluntary prepayments of principal on the 2004 Senior Credit Facility totaling $12.0 million. The 2004 activity includes the result of the Gilbert Global Acquisition as noted above. On March 15, 2004, the proceeds from issuing the 2004 Senior Credit Facility and the proceeds from issuing the 83¤8% Notes, plus cash generated from operations during the first quarter, and cash on hand at the beginning of that quarter were used to (i) repay the outstanding principal and interest on the Company’s 2002 senior credit facility, (ii) redeem and repay the 107¤8% Notes including accrued and unpaid interest and early redemption call premium, (iii) pay for debt issuance costs on the 2004 senior credit facility and the 83¤8% Notes, (iv) pay for transaction and reorganization expenses, and (v) make a distribution of the net remaining equity to the selling shareholders. 29    Existing Contractual Cash Obligations The following table reflects the Company’s contractual cash obligations for long-term debt and operating leases as of December 31, 2005 (dollars in millions):             Total        2006       2007   through   2008       2009   through   2010       Thereafter         Long-Term Debt(1)       $   220.7           $   0.2               $   2.0               $   70.4               $   148.1             Operating Leases       3.7           1.1               1.9               0.6               0.1             Purchase   Commitments(2)       0.8           0.8               —               —               —             Total(3)       $   225.2           $   2.1               $   3.9               $   71.0               $148.2              (1)   The Company’s long-term debt agreements contain customary change of control provisions that could, under certain circumstances, cause accelerated debt repayment. (2)   Amount represents the purchase commitments for natural gas and nickel used in the manufacture of steel golf shafts at the Amory, Mississippi facility. (3)   This table does not include future obligations related to funding pension benefits. Future Cash Generation and Use Currently the Company’s intention is to use existing cash and cash provided from future operations, if any, as allowed within the covenants of the 2004 Senior Credit Facility and the 83¤8% Notes, to: ·  Repay the principal on the 2004 Senior Credit Facility; and/or ·  To make additional investments in the business, which may include, among other things, capital expenditures, business acquisitions, and/or expenditures for business development and expansion in China. In addition to the debt service obligations for principal and interest payments, the Company’s liquidity needs largely relate to working capital requirements and capital expenditures for machinery and equipment. The Company intends to fund its current and long-term working capital, capital expenditure and debt service requirements through cash flow generated from operations. However, since there can be no assurance of future performance, as of December 31, 2005 the Company has the $20.0 million revolving credit facility available for future cash requirements. The maximum amount the Company may use of the $20.0 million revolving credit facility is limited by the financial covenants contained within the 2004 Senior Credit Facility. As of December 31, 2005, the Company believes that cash flow generated from operations, in addition to other financing sources, will be sufficient to meet its cash obligations for the ensuing 12 month period. In addition to the Company’s cash obligations for interest and principal payments related to its debt obligations, the Company also has a management services agreement with an affiliate of the principle common stock holder in its parent company, which requires the payment of an annual advisory fee of $0.5 million. Depending on the size, any future acquisitions, joint ventures, capital expenditures or similar transactions may require significant capital resources in excess of cash provided from operations, and potentially in excess of cash available under the revolving credit facility. There can be no assurance that the Company will be able to obtain the necessary capital, under acceptable terms, from creditors or other sources that will be sufficient to execute any such business investment or capital expenditure. Discussion of Cash Flows for Years Ended December 31, 2004 and 2003 Cash provided by operating activities declined $12.3 million between periods, as net income declined due to the lower net sales during 2004. In addition, the Company built inventory to facilitate the transition  30    of graphite golf shaft production from its El Cajon, California facility to its newly established plant in Guangzhou, China, as well as in anticipation of stronger sales in future periods.  We used $1.5 million of cash to invest in property, plant and equipment in 2004, compared to the $3.5 million spent in 2003. The Company used $13.2 million of net cash for financing activities in 2004 as compared to $16.6 million in 2003. The 2004 activity included the proceeds from issuing the 2004 Senior Credit Facility and the proceeds from issuing the 83¤8% Notes. These proceeds, plus cash generated from operations during the first quarter, and cash on hand at the beginning of 2004 were used to (i) repay the outstanding principal and interest on the Company’s 2002 Senior Credit Facility, (ii) to redeem and repay the 107¤8% Notes including their accrued and unpaid interest and early redemption call premium, (iii) to pay for debt issuance costs on the 2004 Senior Credit Facility and the 83¤8% Notes, (iv) to pay for transaction and reorganization expenses, and (v) to issue a dividend to the Company’s parent company, TTC. In the third quarter of 2004, the Company repaid $2.3 million of principal on its 2004 Senior Credit Facility. The $2.3 million principal repayment included $0.3 million of mandatory payments and $2.0 million of voluntary prepayments. As a result of this voluntary prepayment, the Company has no mandatory quarterly principal payments for the twelve month period following the date of the voluntary prepayment on September 24, 2004. Seasonality In general, the component supplier sales to golf equipment companies and distributors are seasonal, and tend to precede the warm weather golf season. However, there are exceptions, especially for those suppliers that sell to the high volume opening price point golf club manufacturers who sell their product through mass channel retail stores and generate strong volumes during the holiday gift-giving season. Our business does experience some seasonal fluctuations, based on a five year average, approximately 55% of our net sales are generated in the first half of the year, and the remaining 45% of our net sales are generated in the second half. Inflation As a general rule we do not believe inflation has had a dramatic impact on our historical results of operations, as we experience inflation trends that are consistent with the national averages and probably similar to other domestic manufacturers. Nonetheless, as noted in our earlier disclosure regarding the changes in gross profit, we have experienced an increase in the cost of natural gas used for our steel plant operations in Amory, Mississippi. Based upon current market prices and purchases of natural gas contracts for 2006, we expect natural gas costs to be relatively flat in 2006. In addition, during 2005, we recognized an increase in cost for carbon fiber prepreg, the primary raw material used in the manufacture of graphite golf shafts, hockey sticks and bicycle components. We believe our cost increases were consistent with those experienced by other users of prepreg material during 2005. We expect that our costs for prepreg material will increase again in 2006, at a similar rate to 2005 and in amounts consistent with other companies using similar materials. Critical Accounting Policies and Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires the appropriate application of certain accounting policies, many of which require our management to make estimates and assumptions about future events and their impact on amounts reported in the financial statements and accompanying notes. Since future events and their impact cannot be determined with absolute certainty, the actual results will inevitably differ from our management’s estimates. Such differences may be material to the financial statements. 31    We believe that our application of accounting policies, and the estimates inherently required therein, are reasonable under the circumstances. These accounting policies and estimates are constantly reevaluated, and adjustments are made when facts and circumstances dictate a change. Historically, we have found our application of accounting policies to be appropriate, and actual results have not differed materially from those determined using necessary estimates. Our accounting policies are more fully described in note 2 to our consolidated financial statements located elsewhere in this annual report. We have identified certain critical accounting policies which are described below. Revenue Recognition.   We derive substantially all of our revenue from the sales of golf shafts and performance sports products. Revenue is recognized when all of the following conditions exist: (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred, (iii) the revenue amount is determinable and (iv) collection is reasonably assured. Liabilities are established for estimated returns, allowances, and discounts at the time revenue is recognized. Pension and Other Postretirement Obligations.   Pension and other postretirement benefits costs and obligations are dependent on assumptions used in calculating such amounts. These assumptions include discount rates, expected return on plan assets, rates of salary increase, health care cost trend rates, mortality rates, and other factors. These assumptions are updated on an annual basis prior to the beginning of each year. The Company considers current market conditions, including interest rates, in making these assumptions. The Company develops the discount rates by considering the yields available on high-quality fixed income investments with maturities corresponding to the related benefit obligation. The Company’s discount rate for its defined benefit pension plans was 5.75% and 6.00% at December 31, 2005 and 2004, respectively. As discussed further in Note 9 of the Notes to Consolidated Financial Statements, the Company develops the expected return on plan assets by considering various factors, which include its targeted asset allocation percentages, historic returns, and expected future returns. The Company’s expected long-term rate of return assumption for assets in its defined benefit plan for 2005 and 2006 is 8.50%. The Company believes that the assumptions used are appropriate; however, differences in actual experience or changes in the assumptions may materially affect the Company’s financial position or results of operations. In accordance with accounting principles generally accepted in the United States, actual results that differ from the actuarial assumptions are accumulated and, if in excess of a specified corridor, amortized over future periods and, therefore, generally affect recognized expense and the recorded obligation in future periods. Also, gains and losses resulting from changes in assumptions are amortized over the expected remaining service period of active plan participants or, for retired participants, the average remaining life expectancy, to the extent that such amounts exceed 10% of the greater of the market-related value of plan assets or the projected benefit obligation at the beginning of the year. The Company expects that its pension and other postretirement benefit costs in 2006 will exceed the costs recognized in 2005 by approximately $0.2 million. This increase is principally attributable to the reduction in the assumed discount rate used to value the projected benefit obligation as of December 31, 2005. Impairment of Long-Lived Assets, Including Goodwill.   We account for long-lived assets in accordance with the provisions of Statement No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets (Statement 144) and evaluate our goodwill for impairment under Statement No. 142, Goodwill and Other Intangible Assets (Statement 142). We evaluate our goodwill for impairment on an annual basis. We periodically evaluate our long-lived assets, including goodwill, for indicators that would suggest that the carrying amount of the assets may not be recoverable. The judgments regarding the existence of such indicators are based on factors such as operating performance, market conditions, and legal factors. The valuation of our long-lived assets, including goodwill requires us to use our judgment in evaluating these indicators. 32    In accordance with SFAS No. 144, long-lived assets, such as property, plant, and equipment, and purchased intangibles subject to amortization, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset. Assets to be disposed of would be separately presented in the balance sheet and reported at the lower of the carrying amount or fair value less costs to sell, and are no longer depreciated. The assets and liabilities of a disposal group classified as held for sale would be presented separately in the appropriate asset and liability sections of the balance sheet. Goodwill and intangible assets not subject to amortization are tested annually for impairment, and are tested for impairment more frequently if events and circumstances indicate that the asset might be impaired. An impairment loss is recognized to the extent that the carrying amount exceeds the asset’s fair value. Valuation for Deferred Income Taxes.   Our financial statements include an estimate of income taxes assessed in each legal jurisdiction in which we operate. These income taxes include both a current payable amount, as well as a deferred portion which results from a variety of temporary book versus tax treatment differences. These differences result in deferred tax assets and liabilities, which are included in our balance sheet. Once established, any deferred tax asset must be evaluated to determine the likelihood that we will generate sufficient future taxable income to utilize the full amount. When facts and circumstances warrant, we establish, increase or reduce valuation allowances associated with deferred tax assets in order to reflect which assets meet the more likely than not realizability test. Impact of Recently Issued Accounting Standards In December 2004, the FASB issued Statement No. 123 (revised December 2004), Share-Based Payment (“Statement 123(R)”). Statement 123(R) replaces FASB Statement 123, Accounting for Stock-Based Compensation, and supersedes APB Opinion No. 25, Accounting for Stock Issued to Employees. Statement 123(R) will require compensation costs related to share-based payment transactions to be recognized in the financial statements. With limited exceptions, the amount of compensation cost will be measured based on the grant-date fair value of the equity or the liability instruments issued. In addition, liability awards will be remeasured each reporting period. Compensation cost will be recognized over the period that an employee provides service in exchange for the award. Statement 123(R) is effective as of the beginning of the first annual reporting period that begins after June 15, 2005. The Company does not believe the adoption of Statement 123(R) will have a material impact on the company’s consolidated financial condition or results of operations taken as a whole. In November 2004, the FASB issued SFAS No. 151, Inventory Costs. The Company is required to adopt the provisions of SFAS No. 151, on a prospective basis, as of January 1, 2006. SFAS No. 151 clarifies the accounting for abnormal amounts of idle facility expense, freight, handling costs, and wasted material. SFAS No. 151 requires that those items—if abnormal—be recognized as expenses in the period incurred. In addition, SFAS No. 151 requires the allocation of fixed production overheads to the costs of conversions based upon the normal capacity of the production facilities. The Company does not believe that the adoption of SFAS No. 151 will have a material impact on its financial position or results of operations. 33
Expected Maturity Date       There-                 LONG TERM DEBT               2006       2007       2008       2009       2010       after       Total         Fixed Rate 83¤8%   Senior Subordinated Notes       $   —       $   —       $   —       $   —       $   —       $   125.0       $   125.0         Average Interest Rate                                               8.38   %   8.38   %     Variable Rate Senior   Credit Facility       $   0.2       $   1.0       $   1.0       $   1.0       $   69.4       $   148.1       $   95.7         Average Interest Rate(a)                                                       7.53   %                                 (a)           Variable rate long-term debt is comprised of term loans under the 2004 Senior Credit Facility, which provides for interest at our option, at (1) the base rate of the bank acting as administrative agent plus a margin adder of 2.00%, or (2) under a LIBOR option with a borrowing spread of LIBOR plus 2.50% to 3.00%, depending on certain financial ratios. Exchange Rate Sensitivity We use forward foreign exchange contracts (“Instruments” or “Derivative Instruments”) in our management of foreign currency exchange rate exposures. Instruments used as hedges must be effective at reducing the risks associated with the underlying exposure and must be designated as a hedge at the inception of the contract. Accordingly, changes in the market value of the Instruments must have a high degree of inverse correlation with changes in the market value or cash flows of the underlying hedged item. We use Derivative Instruments to hedge several components of our revenue and cash collection stream, including, (i) anticipated foreign currency sales, (ii) accounts receivable denominated in foreign currencies, and (iii) cash balances maintained in foreign currencies. The changes in the market value of Derivative Instruments hedging anticipated foreign currency sales are recognized in the consolidated balance sheets as a component of accumulated other comprehensive income in stockholder’s equity. To the extent an instrument is no longer effective as a hedge due to a change in the underlying exposure, gains and losses are recognized currently in the consolidated statements of operations as a component of cost of sales. The changes in the market value of Derivative Instruments hedging accounts receivable or cash denominated in foreign currency are recognized as a component of operating income during the period of the change, as they are marked to market on a monthly basis. At December 31, 2005, the Company had no outstanding forward foreign currency contracts designated as hedging instruments. Assuming a hypothetical 10% adverse change in all foreign currencies, with the resulting functional currency gains and losses translated into U.S. dollars at the spot rate, the loss in fair value of exchange contracts held on December 31, 2005, would be $0.5 million. Those losses would be offset, in part, by gains on the underlying receivables and cash being hedged. See note 2(h) to our consolidated financial statements located elsewhere in this annual report for further discussion of foreign currencies. Commodity Risk We have some exposure to risks associated with fluctuations in prices for commodities such as nickel and natural gas which are used to manufacture our products. Nickel is used in the plating of steel golf shafts, and natural gas is used as an energy source primarily in our steel manufacturing operations. In some cases we will purchase contracts to lock in prices for both nickel and natural gas to be delivered anywhere from one to twenty-four months from the date the contract is consummated. As of December 31, 2005 we held either under contract or have purchased approximately 8% of our expected 2006 usage of natural gas, and 50% of our expected 2006 usage of nickel. 34
KPMG LLP         Memphis,   Tennessee     March 27,   2006      35     TRUE TEMPER SPORTS, INC. AND SUBSIDIARIES (A wholly-owned subsidiary of True Temper Corporation) CONSOLIDATED STATEMENTS OF OPERATIONS (Dollars in thousands)             Successor Company               Predecessor Company                 Year ended   December 31,       Period from   March 15   To December 31,               Period from   January 1   To March 14,       Year ended   December 31,                 2005       2004               2004       2003         NET   SALES           $   117,594               $   78,120                       $   20,247               $   116,206             Cost of sales           70,362               60,104                       11,871               69,470             GROSS PROFIT           47,232               18,016                       8,376               46,736             Selling, general and administrative expenses           14,660               9,520                       3,635               14,747             Amortization of   intangible assets           13,840               10,984                       —               —             Business   development, start-up costs and transition costs           208               738                       100               869             Transaction and   reorganization expense           —               25                       5,381               —             Impairment charge   on long lived assets           357               —                       —               —             Loss on early   extinguishment of long-term    debt           —               —                       9,217               —             OPERATING INCOME (LOSS)           18,167               (3,251   )                   (9,957   )           31,120             Interest expense, net of interest income           18,631               13,491                       2,498               13,017             Other (income) expenses,   net           (31   )           72                       (2   )           132             INCOME (LOSS) BEFORE INCOME TAXES            (433   )           (16,814   )                   (12,453   )           17,971             Income tax (benefit) expense           33               (6,350   )                   (2,845   )           7,113             NET   INCOME (LOSS)           $   (466   )           $   (10,464   )                   $   (9,608   )           $   10,858               See accompanying notes to consolidated financial statements. 36     TRUE TEMPER SPORTS, INC. AND SUBSIDIARIES (A wholly-owned subsidiary of True Temper Corporation) CONSOLIDATED BALANCE SHEETS (Dollars in thousands)             Successor Company                     December 31,       December 31,                     2005       2004             ASSETS                                             CURRENT ASSETS                                             Cash and cash equivalents           $   4,733               $   3,337                 Receivables, net           17,949               14,578                 Inventories           19,633               21,910                 Deferred financing costs           1,239               1,449                 Prepaid expenses and other current assets           2,591               2,084                 Total current assets           46,145               43,358                 Property, plant and equipment, net           12,210               13,407                 Goodwill, net           150,883               150,883                 Intangible   assets, net           132,629               146,266                 Deferred   financing costs, net           5,265               6,504                 Other assets           923               407                 Total assets           $   348,055               $   360,825                 LIABILITIES & STOCKHOLDER’S EQUITY                                             CURRENT LIABILITIES                                             Current portion of long-term debt           $   245               $   545                 Accounts payable           4,410               4,356                 Accrued expenses and other current liabilities           9,896               9,796                 Total current liabilities           14,551               14,697                 Deferred tax   liability, net           4,531               5,403                 Long-term debt, net   of current portion           220,480               232,180                 Other liabilities           8,729               7,215                 Total liabilities           248,291               259,495                 STOCKHOLDER’S   EQUITY                                             Common stock—par   value $0.01 per share; authorized 1,000 shares; issued and outstanding 100   shares           —               —                 Additional   paid-in capital           111,943               111,943                 Accumulated deficit           (10,930   )           (10,464   )             Accumulated other   comprehensive loss, net of taxes           (1,249   )           (149   )             Total stockholder’s equity           99,764               101,330                 Commitments and   contingent liabilities (See Note 11)           —               —                 Total   liabilities and stockholder’s equity           $   348,055               $   360,825                   See accompanying notes to consolidated financial statements. 37     TRUE TEMPER SPORTS, INC. AND SUBSIDIARIES Predecessor Company (A wholly-owned subsidiary of True Temper Corporation) CONSOLIDATED STATEMENTS OF STOCKHOLDER’S EQUITY AND COMPREHENSIVE INCOME (Dollars in thousands)                                     Retained       Accumulated                                         Additional       Earnings/       Other                         Common Stock       Paid-In       (Accumulated       Comprehensive                         Shares       Par Value       Capital       Deficit)       Loss       Total         Balance   at December 31, 2002           100               $ —               $ 40,326               $ 3,145               $ (403   )       $ 43,068           Net income           —               —               —               10,858               —           10,858           Minimum pension   liability, net of taxes           —               —               —               —               (118   )       (118   )       Mark to market   adjustment on derivative instruments, net of taxes           —               —               —               —               192           192           Comprehensive   income, net of taxes                                                                                       10,932           Dividends   declared to parent company           —               —               —               (5,207   )           —           (5,207   )       Balance   at December 31, 2003           100               $ —               $ 40,326               $ 8,796               $ (329   )       $ 48,793           Net loss for the period from January 1, 2004   through March 14, 2004           —               —               —               (9,608   )           —           (9,608   )       Mark to market adjustment on derivative instruments,   net of taxes           —               —               —               —               (121   )       (121   )       Comprehensive loss, net of taxes                                                                                       (9,729   )       Balance at March 14, 2004           100               $ —               $ 40,326               $  (812   )           $ (450   )       $ 39,064             See accompanying notes to consolidated financial statements. 38     TRUE TEMPER SPORTS, INC. AND SUBSIDIARIES Successor Company (A wholly-owned subsidiary of True Temper Corporation) CONSOLIDATED STATEMENTS OF STOCKHOLDER’S EQUITY AND COMPREHENSIVE INCOME (Dollars in thousands)                                             Accumulated                                         Additional               Other                         Common Stock       Paid-In       Accumulated       Comprehensive                         Shares       Par Value       Capital       Deficit       Loss       Total         Initial   capitalization and acquisition of Predecessor Company at March 15, 2004           —               $   —           $   112,715           $   —               $   —           $   112,715         Subsequent   adjustment to initial capitalization for final working capital amount           —               —           (772   )       —               —           (772   )     Net loss for the period from March 15, 2004   through December 31, 2004           —               —           —           (10,464   )           —           (10,464   )     Minimum pension liability, net of taxes           —               —           —           —               (164   )       (164   )     Mark to market adjustment on derivative instruments,   net of taxes           —               —           —           —               15           15         Comprehensive loss, net of   taxes                                                                               (10,613   )     Balance   at December 31, 2004           100               —           111,943           (10,464   )           (149   )       101,330         Net loss           —               —           —           (466   )           —           (466   )     Minimum pension   liability, net of taxes           —               —           —           —               (1,085   )       (1,085   )     Mark to market adjustment on derivative instruments,   net of taxes           —               —           —           —               (15   )       (15   )     Comprehensive loss, net of taxes                                                                               (1,566   )     Balance at December 31, 2005           100               $   —           $   111,943           $   (10,930   )           $   (1,249   )       $   99,764           See accompanying notes to consolidated financial statements. 39     TRUE TEMPER SPORTS, INC. AND SUBSIDIARIES (A wholly-owned subsidiary of True Temper Corporation) CONSOLIDATED STATEMENTS OF CASH FLOWS (Dollars in thousands)             Successor Company               Predecessor Company                 Year   ended   December 31,       Period from   March 15   To December 31,               Period from   January 1   To March 14,       Year   ended   December 31,                 2005       2004               2004       2003         OPERATING ACTIVITIES                                                                                 Net income (loss)           $   (466   )           $   (10,464   )                   $   (9,608   )           $   10,858             Adjustments to reconcile   net income (loss) to net cash provided by operating activities:                                                                                 Depreciation and   amortization           2,725               2,420                       671               2,906             Amortization of   deferred financing costs           1,449               1,034                       109               632             Amortization of   intangible assets           13,840               10,984                       —               —             Inventory fair   value adjustment recorded in cost of sales           —               11,663                       —               —             Loss on disposal   of property, plant and equipment           300               40                       —               89             Transaction and   reorganization expenses           —               25                       5,381               —             Loss on early   extinguishment of long-term debt            —               —                       9,217               —             Deferred taxes           (201   )           (6,432   )                   (2,898   )           6,883             Changes in assets and   liabilities, net of acquisitions:                                                                                 Receivables, net           (3,371   )           (255   )                   1,273               (529   )         Inventories           2,277               (3,454   )                   (2,800   )           (601   )         Prepaid expenses   and other assets           (514   )           (463   )                   (68   )           (422   )         Accounts payable           54               (2,015   )                   1,379               (1,007   )         Accrued interest           (38   )           3,761                       1,993               222             Other liabilities           (119   )           (142   )                   (1,667   )           2,371             Net cash   provided by operating activities           15,936               6,702                       2,982               21,402             INVESTING ACTIVITIES                                                                                 Purchase of   property, plant and equipment           (2,612   )           (1,232   )                   (330   )           (3,460   )         Proceeds from the   sales of property, plant and    equipment           784               50                       —               —             Other investing activity           (203   )           —                       —               —             Net cash   used in investing activities           (2,031   )           (1,182   )                   (330   )           (3,460   )         FINANCING ACTIVITIES                                                                                 Proceeds from   issuance of bank debt           —               110,000                       —               —             Proceeds from   issuance of Senior Subordinated Notes           —               125,000                       —               —             Principal payments   on bank debt           (12,000   )           (2,275   )                   (7,700   )           (11,000   )         Repay bank debt,   including accrued interest           —               (6,335   )                   —               —             Call senior   subordinated notes, including accrued    interest and call premiums           —               (109,160   )                   —               —             Payment of debt   issuance costs           —               (8,678   )                   —               (278   )         Dividends paid           —               —                       —               (5,207   )         Distribution of   net equity to selling shareholders            —               (102,518   )                   —               —             Transaction and   reorganization expenses, including cash payments for direct acquisition costs           —               (10,805   )                   (463   )           —             Other financing   activity           (509   )           (248   )                   (42   )           (138   )         Net cash   used in financing activities           (12,509   )           (5,019   )                   (8,205   )           (16,623   )         Net increase   (decrease) in cash           1,396               501                       (5,553   )           1,319             Cash at beginning   of period           3,337               2,836                       8,389               7,070             Cash at   end of period           $   4,733               $   3,337                       $   2,836               $   8,389               See accompanying notes to consolidated financial statements. 40     TRUE TEMPER SPORTS, INC. AND SUBSIDIARIES (A wholly-owned subsidiary of True Temper Corporation) NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Dollars in thousands unless otherwise indicated) (1)   DESCRIPTION OF BUSINESS True Temper Sports, Inc. (“True Temper” or the “Company”) is primarily engaged in the design, manufacture and sale of steel and composite golf shafts as well as a variety of other high strength, tight tolerance tubular components for the bicycle, automotive and recreational sports markets. True Temper’s manufacturing plants and related facilities are located in Memphis, Tennessee, Amory and Olive Branch, Mississippi, El Cajon, California and Guangzhou, China. The majority of True Temper’s sales are to golf club manufacturers and distributors primarily located in the United States, Europe, Japan, Australia and Southeast Asia. True Temper operates as a wholly-owned operating subsidiary of True Temper Corporation.  The consolidated financial statements include the financial statements of True Temper and its majority owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.  On January 30, 2004, TTS Holdings LLC, a new company formed by Gilbert Global Equity Partners, L.P. and its affiliated funds (“Gilbert Global”), entered into a stock purchase agreement with the Company’s direct parent company, True Temper Corporation, pursuant to which TTS Holdings LLC and certain of the Company’s senior management purchased all of the outstanding shares of True Temper Corporation. In connection with this acquisition, and effective on March 15, 2004, the Company repaid all of its outstanding 2002 senior credit facility, redeemed all of its 107¤8% senior subordinated notes due 2008, and made certain payments of the net remaining equity of the predecessor company to the selling shareholders. These payments were financed with the net proceeds of a new senior credit facility and new 83¤8% senior subordinated notes due 2011. This transaction was accounted for by the Company’s parent company using the purchase method of accounting. As the Company is a wholly owned subsidiary of True Temper Corporation, the Company has “pushed down” the effect of the purchase method of accounting to these financial statements. These financial statements and accompanying notes present the historical cost basis results of the Company as “predecessor company” through March 14, 2004, and the results of the Company as “successor company” from March 15, 2004 through December 31, 2004, accordingly, the successor company presentation is not comparable to the predecessor company presentation due to the different basis of accounting. The financial statements have also been separated by a vertical dashed line into predecessor company and successor company results. (2)   SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (a)         Revenue Recognition Revenue is generally recognized when persuasive evidence of an arrangement exists, delivery has occurred, the revenue amount is determinable and collection is reasonably assured. Valuation allowances are established for estimated returns, allowances and discounts at the time revenue is recognized. 41    (b)         Use of Estimates The preparation of the consolidated financial statements requires management of the Company to make a number of estimates and assumptions relating to the reported amount of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the period. Significant items subject to such estimates and assumptions include the carrying amount of property, plant and equipment; valuation allowances for receivables, inventories and deferred income tax assets; valuation of derivative instruments; and assets and obligations related to employee benefits. Actual results could differ from those estimates.  (c)          Trade Accounts Receivable Trade receivables are net of allowance for doubtful accounts of $411 and $915 as of December 31, 2005 and 2004, respectively.  (d)         Inventories Inventories are stated at the lower of cost or market. Cost is determined using the first-in, first-out method.  (e)          Deferred Financing Costs Costs associated with the issuance of debt are deferred and amortized as a component of interest expense over the life of the related debt, using a method that approximates the interest method.  (f)            Property, Plant and Equipment Property, plant and equipment is stated on a cost basis, net of accumulated depreciation. Depreciation is provided over the estimated useful life of each asset using the straight-line method. Leasehold improvements are amortized over the shorter of the useful life or the applicable lease term including option periods when appropriate. In general the estimated useful lives for both predecessor and successor companies are as follows:      Asset Category               Life         Buildings       15-40 years         Furniture and   office equipment       10-15 years         Machinery and   equipment       8-15 years         Computers and   related equipment       2-4 years         Leasehold   improvements       6-15 years         Assets held for use—not   currently used for production       8 years           (g)          Goodwill and Other Intangible Assets Goodwill represents the excess of costs over fair value of assets of businesses acquired. Goodwill and intangible assets acquired in a purchase business combination and determined to have an indefinite useful life are not amortized, but instead tested for impairment at least annually in accordance with the provisions of Statement of Financial Accounting Standards (“SFAS”) No. 142, Goodwill and Other Intangible Assets. Intangible assets with estimable useful lives are amortized over their respective estimated useful lives to their estimated residual values, and reviewed for impairment in accordance with SFAS No. 144, Accounting for Impairment or Disposal of Long-Lived Assets.  42    The Company assesses its goodwill and other indefinite-lived intangible assets for impairment on an annual basis. If an indication of impairment exists, the Company makes a comparison of the carrying amount of the reporting units to its estimated fair value. If the reporting unit’s carrying value exceeds its fair value, the Company allocates the fair value to all of the assets and liabilities of the reporting unit and determines the implied fair value of the goodwill and indefinite-lived intangible assets. An impairment loss would be recognized to the extent that a reporting unit’s recorded goodwill or other indefinite-lived intangible assets exceeded the implied fair value. The Company performed its annual impairment testing in the fourth quarter of 2005. No impairment was determined upon performing these impairment tests. (h)         Derivative Instruments and Foreign Currencies The Company uses forward foreign exchange contracts (“Instruments” or “Derivative Instruments”) in its management of foreign currency exchange rate exposures. Instruments that are designated hedges in accordance with SFAS No. 133, Accounting for Derivative Instruments and Certain Hedging Activities, as amended, must be effective at reducing the risks associated with the underlying exposure and must be designated as a hedge at the inception of the contract. Accordingly, changes in the market value of the Instruments must have a high degree of inverse correlation with changes in the market value or cash flows of the underlying hedged item.  The Company has used Derivative Instruments to hedge several components of its revenue and cash collection stream, including, (i) anticipated foreign currency sales, (ii) accounts receivable denominated in foreign currencies, and (iii) cash balances maintained in foreign currencies.  The changes in the market value of Derivative Instruments designated as hedging instruments for anticipated foreign currency sales are recognized in the consolidated balance sheets as a component of accumulated other comprehensive income (loss) in consolidated stockholder’s equity. To the extent an instrument is no longer effective as a hedge due to a change in the underlying exposure, gains and losses are recognized currently in the consolidated statements of operations as a component of cost of sales.  The changes in the market value of Derivative Instruments hedging accounts receivable or cash denominated in foreign currency are recognized as a component of operating income during the period of the change, as they are marked to market on a monthly basis.  At December 31, 2005, the Company had no outstanding forward foreign currency contracts designated as hedging instruments. True Temper recorded a gain (loss) in operations on foreign currency of ($172) for the year ended December 31, 2005, $79 for the period January 1, 2004 to March 14, 2004, ($40) for the period March 15, 2004 to December 31, 2004, and $215 for the year ended December 31, 2003.  The following table summarizes the contractual notional amounts of True Temper’s forward exchange contracts as of December 31, 2005 and 2004 (in U.S. dollars):             2005       2004         Pound Sterling       $   2,099           $   3,405             Yen       2,250           1,761             Australian dollar       457           940             Total       $   4,806           $   6,106               43    (i)            Impairment of Long-Lived Assets SFAS No. 144 provides a single accounting model for long-lived assets to be disposed of. SFAS No. 144 also changes the criteria for classifying an asset as held for sale; and broadens the scope of businesses to be disposed of that qualify for reporting as discontinued operations and changes the timing of recognizing losses on such operations.  In accordance with SFAS No. 144, long-lived assets, such as property, plant, and equipment, and purchased intangibles subject to amortization, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset. Assets to be disposed of would be separately presented in the balance sheet and reported at the lower of the carrying amount or fair value less costs to sell, and are no longer depreciated. The assets and liabilities of a disposal group classified as held for sale would be presented separately in the appropriate asset and liability sections of the balance sheet.  During 2005 the Company recognized a non-cash pretax charge of $357 associated with the impairment of certain steel golf shaft manufacturing equipment originally obtained through the acquisition of substantially all of the tangible personal property of Apollo Sports in 2000. A significant portion of the assets acquired were subsequently transferred to the Company’s Amory, Mississippi facility. The impairment charge represents the carrying value of the remainder of the assets located in Birmingham, England, that were deemed to be unusable for future steel golf shaft manufacturing. As of December 31, 2005 the assets had been disposed of and had zero book value. (j)            Business Development, Start-up Costs and Transition Costs Costs associated with business development, start-up and transition costs are comprised, primarily, of costs related to opening a composite manufacturing operation in Guangzhou, China and the related down-sizing costs incurred at the Company’s El Cajon, California facility. These costs include travel, consulting, legal and other professional services, personnel recruiting and compensation, facility rent and other start-up and related shutdown costs. The costs are expensed as incurred and separately identified on the statement of operations as a component of operating income. (k)         Advertising and Promotional Costs Advertising and promotional costs are accounted for in accordance with Statement of Position 93-7 “Reporting on Advertising Costs”, which requires that the cost of producing advertisements be expensed at the time of the first showing of the advertisement or as incurred. True Temper’s policy is to expense costs associated with the production of advertising at the time of first showing of the advertisement. Advertising and promotional costs primarily consist of trade show costs, media spots including print, radio and television, advertising production and agency fees, sponsorships, and product and promotional samples. Advertising and promotional expense was $3,466 for the year ended December 31, 2005, $1,155 for the period January 1, 2004 through March 14, 2004, $2,314 for the period March 15, 2004 to December 31, 2004, and $3,106 for the year ended December 31, 2003. Certain of the Company’s customers participate in a cooperative advertising program where the Company agrees to reimburse these customers for a portion of their advertising costs that feature the Company’s product. Cooperative advertising costs are shown as a reduction of sales.  44    (l)            Research and Development Costs Costs associated with the development of new products and changes to existing products are expensed as incurred and are included in selling, general, and administrative expenses. Research and development costs were $1,812 for the year ended December 31, 2005, $328 for the period January 1, 2004 through March 14, 2004, $1,180 for the period March 15, 2004 to December 31, 2004, and $1,501 for the year ended December 31, 2003.  (m)     Post-Retirement Benefits True Temper’s hourly union employees at its Amory, Mississippi plant are covered by a non-contributory defined benefit plan. The defined benefit plan is funded in conformity with funding requirements of applicable government regulations. Benefits are based on a negotiated, fixed amount multiplied by the employee’s length of service. In addition to the defined benefit plan, these same employees receive certain post-retirement medical, dental and life insurance benefits.  True Temper’s US based salaried employees, and certain international employees, are covered by a non-contributory defined contribution plan. Company contributions to this plan are based on the employee’s age and are calculated as a percentage of compensation. This plan is funded on a current basis. In addition to the non-contributory defined contribution plan, certain post-retirement medical, dental and life insurance benefits are provided to those salaried employees who were employed by the Company prior to January 1, 2000.  All US based employees, and certain international employees, of True Temper are eligible to participate in a company sponsored 401(k) plan. The Company’s contribution to this plan is calculated as a percentage of the employee’s compensation and the employee’s contribution. All Company contributions to this plan are paid in cash.  (n)         Income Taxes Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.  (o)   Stock Based Compensation On August 10, 2005 the Company’s parent company, True Temper Corporation (“TTC”), issued, to certain employees of the Company in return for service, a total of 525,400 stock options and stock appreciation rights (“Equity Incentive Awards”) to purchase common stock of TTC for $13.56 per share. The Equity Incentive Awards vest and become exercisable at various times and under various conditions through August 10, 2012, based on service with certain acceleration features based on performance criteria. The Company applies the intrinsic-value-based method of accounting prescribed by Accounting Principles Board (APB) Opinion No. 25, Accounting for Stock Issued to Employees, and related interpretations including FASB Interpretation No. 44, Accounting for Certain Transactions involving Stock Compensation, an interpretation of APB Opinion No. 25, issued in March 2000, to account for its fixed-plan Equity Incentive Awards. Under this method, compensation expense is recorded on the  45    date of grant only if the current market price of the underlying stock exceeded the exercise price of the Equity Incentive Award. SFAS No. 123, Accounting for Stock Based Compensation, established accounting and disclosure requirements using a fair-value-based method of accounting for stock-based employee compensation plans. As allowed by SFAS No. 123, the Company has elected to continue to apply the intrinsic-value-based method of accounting described above, and has adopted only the disclosure requirements of SFAS No. 123. The following table illustrates the effect on net income (loss) if the fair-value-based method had been applied to all outstanding and unvested Equity Incentive Awards in each period, and such effect on the net income of TTC were to be pushed down to its wholly owned subsidiary, True Temper Sports, Inc.             Year Ended   December 31,    2005         Net income   (loss), as reported           $   (466   )         Add stock-based   employee compensation expense in reported net income (loss), net of tax           —             Deduct total   stock-based employee compensation expense determined under fair value based   method for all awards, net of tax           (66   )         Net income (loss),   adjusted           $   (532   )           Stock options granted to employees of the predecessor company were exercised during the first quarter of 2004 in connection with the termination of the predecessor company’s plan, concurrent with the business combination described more fully in Note 3 to these financial statements. (p)         Fair Value of Financial Instruments The fair value of financial instruments represents the amount at which the instrument could be exchanged in a current transaction between willing parties, other than a forced sale or liquidation. Significant differences can arise between the fair value and carrying amount of financial instruments that are recognized at historical cost amounts.  The following methods and assumptions were used by True Temper in estimating fair value disclosures for financial instruments:  Cash, Trade Receivables and Payables—The amounts reported in the balance sheets approximate fair value.  Long-Term Debt—The carrying values of the Company’s variable rate debt approximates fair value. The estimated fair value of the Company’s fixed rate debt is based upon interest rates available for the issuance of debt with similar terms and remaining maturities. As of December 31, 2005 and 2004, the Company’s Senior Subordinated Notes had an estimated fair value of $111.3 million and $116.3 million, respectively.  Foreign Currency Contracts—The fair value of forward exchange contracts is estimated using prices established by financial institutions for comparable instruments which was approximately $0.1 million at December 31, 2005 and 2004.  46    The fair value estimates presented herein are based on information available to management as of December 31, 2005 Although management is not aware of any factors that would significantly affect the estimated fair value amounts, such amounts have not been comprehensively revalued for purposes of these financial statements since that date and current estimates of fair value may differ significantly from the amounts presented herein.  (q)         Recent Accounting Pronouncements In December 2004, the FASB issued SFAS No. 123 (revised December 2004), Share-Based Payment (“SFAS 123(R)”). SFAS 123(R) replaces  SFAS No. 123, Accounting for Stock-Based Compensation, and supersedes APB Opinion No. 25, Accounting for Stock Issued to Employees. SFAS 123(R) will require compensation costs related to share-based payment transactions to be recognized in the financial statements. With limited exceptions, the amount of compensation cost will be measured based on the grant-date fair value of the equity or the liability instruments issued. In addition, liability awards will be remeasured each reporting period. Compensation cost will be recognized over the period that an employee provides service in exchange for the award. SFAS 123(R) is effective as of the beginning of the first annual reporting period that begins after June 15, 2005. The Company does not believe the adoption of SFAS 123(R) will have a material impact on the Company’s consolidated financial condition or results of operations taken as a whole.  In November 2004, the FASB issued SFAS No. 151, Inventory Costs. The Company is required to adopt the provisions of SFAS No. 151, on a prospective basis, as of January 1, 2006. SFAS No. 151 clarifies the accounting for abnormal amounts of idle facility expense, freight, handling costs, and wasted material. SFAS No. 151 requires that those items—if abnormal—be recognized as expenses in the period incurred. In addition, SFAS No. 151 requires the allocation of fixed production overheads to the costs of conversions based upon the normal capacity of the production facilities. The Company does not believe that the adoption of SFAS No. 151 will have a material impact on the Company’s consolidated financial condition or results of operations taken as a whole. In March 2005, FIN 47 “Accounting for Conditional Asset Retirement Obligations” was issued. FIN 47 requires conditional asset retirement obligations to be recognized if a legal obligation exists to perform asset retirement activities and a reasonable estimate of the fair value of the obligation can be made. FIN 47 also provides guidance as to when an entity would have sufficient information to reasonably estimate the fair value of an asset retirement obligation. FIN 47 was adopted by the Company effective December 31, 2005. The adoption of FIN 47 has had no material impact on the financial position or results of operations of the Company. (r)          Supplemental Disclosures of Cash Flow Information Cash payments for income taxes and interest are as follows:              Successor Company               Predecessor Company                         Period from               Period from                         Year Ended       March 15 to               January 1 to       Year Ended                  December 31,       December 31,               March 14,       December 31,                 2005       2004               2004       2003         Income taxes           $   147               $   89                       $   174               $   162             Interest           $   17,330               $   8,789                       $   348               $   12,265               47    (s)                                Accumulated Other Comprehensive Income (Loss) The accumulated balances for each classification within accumulated other comprehensive income (loss) are as follows:              Derivative   Instruments   Mark to Market   Adjustment       Minimum   Pension   Liability   Adjustments       Accumulated   Other   Comprehensive   Loss         Predecessor Company:                                                         December 31, 2002           $   —               $   (403   )           $   (403   )         Period change           192               (118   )           74             December 31, 2003           $   192               $   (521   )           $   (329   )         Period change           (121   )           —               (121   )         March 14, 2004           $   71               $   (521   )           $   (450   )                                                                   Successor   Company:                                                         March 15,   2004           $   —               $   —               $   —             Period change           15               (164   )           (149   )         December 31,   2004           $   15               $   (164   )           $   (149   )         Period change           (15   )           (1,085   )           (1,100   )         December 31, 2005           $   —               $   (1,249   )           $   (1,249   )           (3)   ACQUISITIONS On January 30, 2004, TTS Holdings LLC, a new company formed by Gilbert Global Equity Partners, L.P. and its affiliated funds (“Gilbert Global”), entered into a stock purchase agreement with the Company’s direct parent company, True Temper Corporation, pursuant to which TTS Holdings LLC and certain of the Company’s senior management purchased all of the outstanding shares of True Temper Corporation. In connection with this acquisition, and effective on March 15, 2004, the Company repaid all of its outstanding 2002 senior credit facility, redeemed all of its 107¤8% senior subordinated notes due 2008, and made certain payments of the net remaining equity of the predecessor company to the selling shareholders. These payments were financed with the net proceeds of a new senior credit facility and new 83¤8% senior subordinated notes due 2011. These debt instruments are further described in Note 7 below. 48    The purchase price as stipulated in the January 30, 2004 stock purchase agreement totaled $342.0 million, plus direct acquisition costs and certain working capital adjustments of $18.4 million, less a purchase price adjustment for final working capital of $0.8 million. Following is the allocation of the total consideration paid:     Current assets,   excluding inventory               $   20,086         Inventory               30,119         Identifiable   intangible assets:                         Trade name       $   19,455                 Patented technology       11,686                 Purchased customer relationships       121,524                 Lease contract       4,323                 Other       262                 Total identifiable intangible assets               157,250         Property, plant   and equipment               14,684         Deferred tax   assets, net, existing at acquisition date               51,866         Deferred tax   assets related to acquisition               10,552         Deferred   financing costs               7,366         Goodwill               150,883         Other assets               95         Current   liabilities               (12,475   )     Deferred tax   liability related to intangible assets               (59,680   )     Deferred tax   liability related to fair value of inventory               (4,432   )     Other liabilities               (6,656   )     Total               $   359,658                     This transaction was accounted for by the Company’s parent company using the purchase method of accounting. As the Company is a wholly owned subsidiary of True Temper Corporation, the Company has “pushed down” the effect of the purchase method of accounting to these financial statements. In connection with the acquisition, the Company conducted an assessment and valuation of all tangible and intangible assets acquired. The results of this exercise are reflected in the allocation table above. Of particular note was (i) the establishment of intangible assets in an aggregate amount of approximately $157.3 million based on both internal Company assessments and a thorough study conducted by an independent firm specializing in intangible asset valuation; and (ii) the write-up of inventory by approximately $11.7 million to reflect the estimated fair value of inventory at the date of acquisition. Both of these adjustments were completed in compliance with the purchase accounting prescribed by Statement of Financial Accounting Standards No. 141, Business Combinations. The establishment of the intangible assets results in certain non-cash amortization expense beginning in 2004, as these intangible assets are amortized over their expected economic lives. The write-up of inventory to its estimated fair value results in a non-cash charge to cost of sales in 2004 totaling $11.7 million. In addition, at the time of the transaction the predecessor company recorded certain transaction related expenses totaling $5.4 million. These expenses consist primarily of investment banking merger and acquisition fees, legal fees and other incidental costs and expenses typically incurred in an acquisition of this nature. Also, as a direct result of the early extinguishment of the predecessor company’s long term debt, expenses totaling $9.2 million were incurred consisting primarily of the write-off of the remaining deferred  49    financing costs related to the 107¤8% senior subordinated notes due 2008 and the 2002 senior credit facility, and the early extinguishment call premium and related interest incurred when the Company redeemed the 107¤8% senior subordinated notes on March 15, 2004. The following unaudited pro forma financial information is presented as if the aforementioned transaction, and all related purchase accounting adjustments, had occurred as of the beginning of each period presented. The pro forma amounts contain certain adjustments, including, (i) an adjustment to interest expense to reflect the extinguishment of the 107¤8% Senior Subordinated Notes due 2008 and the 2002 senior credit facility, and the issuance of the 83¤8% Senior Subordinated Notes due 2011 and 2004 senior credit facility, (ii) the elimination of transaction and reorganization expenses, the loss on early extinguishment of long term debt, and the non-cash cost of sales charge related to the fair value of inventory write-up, which are all non-recurring, (iii) the additional charge to operating income for the amortization of intangible assets and (iv) the related tax effect of the adjustments described above.             Years Ended   December 31,                 2004       2003         Net sales       $   98,367       $   116,206         Income (loss)   before income taxes       $   (6,633   )   $   363         Net income (loss)       $   (4,203   )   $   (59   )       Intangible Asset Carrying Value As described above, the Company established certain intangible assets as a result of the application of purchase accounting to the acquisition on March 15, 2004. The following table sets forth the gross value and accumulated amortization for these intangible assets at December 31, 2005.             Gross Value       Weighted   Average   Amortization   Period       Accumulated   Amortization         Trade name           $   19,455               —               $   —             Patented   technology           11,686               8.0 yrs               2,615             Purchased   customer relationships           121,524               10.0 yrs               21,820             Lease contract           4,323               59.0 yrs               131             Other           262               2.0 yrs               235             Total           $   157,250                               $   24,801               The following table sets forth the estimated aggregate future amortization expense for these intangible assets at December 31, 2005.             Estimated   Aggregate   Amortization   Expense         2006           13,713             2007           13,686             2008           13,686             2009           13,686             2010           13,686               50    (4)   INVENTORIES Inventories, as of December 31 of the year indicated, consist of the following:              2005       2004         Raw materials       $   4,556       $   4,601         Work in process       1,734       2,182         Finished goods       13,343       15,127         Total       $   19,633       $   21,910           (5)   PROPERTY, PLANT AND EQUIPMENT Major classes of property, plant and equipment, as of December 31 of the year indicated, are summarized as follows:              2005       2004         Land improvements       $   113       $   113         Buildings       2,815       3,066         Furniture and   office equipment       262       241         Machinery and   equipment       10,924       9,478         Computer   equipment and capitalized software       451       414         Leasehold   improvements       1,429       1,566         Assets held for   use—not currently used in production       —       643         Construction in progress       1,361       306                 17,355       15,827         Less accumulated   depreciation       5,145       2,420         Net property, plant and   equipment       $   12,210       $   13,407           Depreciation expense was $2,725 for the year ended December 31, 2005, $671 for the period January 1, 2004 through March 14, 2004, $2,420 for the period March 15, 2004 to December 31, 2004, and $2,906 for the year ended December 31, 2003.  (6)   OTHER CURRENT LIABILITIES Other current liabilities, as of December 31 of the year indicated, consist of the following:              2005       2004         Accrued   compensation, benefits and related payroll taxes       $   4,276       $   4,051         Accrued interest       3,730       3,769         Other       1,890       1,976         Total       $   9,896       $   9,796           51     (7)          BORROWINGS (a)   Long-Term Debt Long-term debt at December 31, 2005 and 2004 consisted of the following:             2005       2004         83¤8%   Senior Subordinated Notes due 2011       $   125,000       $   125,000         2004 senior   credit facility       95,725       107,725         Total debt       220,725       232,725         Less current maturities       245       545         Long-term debt       $   220,480       $   232,180           The 83¤8% Senior Subordinated Notes due 2011 (the “Notes”) provide for semi-annual interest payments, in arrears, due on March 15 and September 15. At the option of the Company, up to 35% of the Notes are redeemable prior to March 15, 2007, at 108.375%, with the net cash proceeds of one or more public equity offerings. In addition, at any time prior to March 15, 2008, the Company may also redeem all or a part of the Notes upon the occurrence of a change of control. On or after March 15, 2008 the Notes may be redeemed, at the option of the Company, in whole or in part, at a redemption price of 104.188% beginning March 15, 2008 and declining ratably thereafter to 100.000% on March 15, 2010. The 2004 senior credit facility has a maturity date of March 15, 2011, and provides for interest on the term loan, at the Company’s option, at (i) the base rate of the bank acting as administrative agent plus a margin adder of 2.00%, or (ii) under a LIBOR option with a borrowing spread of LIBOR plus 2.50% to 3.00%, depending on financial ratios. The Company’s weighted average rate at December 31, 2005 was 7.53%. The loans under the 2004 senior credit facility are senior to the Notes, and are secured by substantially all of the Company’s assets. The 2004 senior credit facility and the Notes contain provisions which, among other things, limit the Company’s ability to (i) incur additional indebtedness, (ii) make acquisitions and capital expenditures, (iii) sell assets, (iv) create liens or other encumbrances, (v) make certain payments and dividends, or (vi) merge or consolidate. In addition, both the senior credit facility and the Notes contain customary change of control provisions that could, under certain circumstances, cause accelerated debt repayment. The 2004 senior credit facility also requires the Company to maintain certain specified financial ratios and tests including minimum interest coverage and fixed charge coverage ratios, and maximum leverage ratios. On September 24, 2004 the Company executed an amendment to its 2004 senior credit facility (the “Amendment”). The Amendment was approved by the Company, Credit Suisse First Boston acting as administrative agent and collateral agent, and by a majority of the lenders who were party to the 2004 senior credit facility on such date. The Amendment provided adjustments to certain specified financial ratios and tests included in the 2004 senior credit facility. As part of the Amendment, the margin adder on LIBOR based loans was increased from 2.50% to between 2.75% and 3.00%, depending on financial ratios, beginning September 24, 2004 and continuing through December 31, 2005. At December 31, 2005 the Company was in compliance with all of the covenants in both the 2004 senior credit facility and the Notes. On March 27, 2006 the Company amended and restated its 2004 Senior Credit Facility (the “2006 Restatement”).  The Restatement was approved by the Company, Credit Suisse acting as administrative agent and collateral agent, and by a majority of the lenders who were party to the 2004  52    Senior Credit Facility at that date.  The Restatement includes additional term loans under the Company’s existing Senior Secured Credit Facilities of approximately $15.0 million, amendments that enable the Company to pursue future acquisitions, and the necessary flexibility to execute on the Company’s global strategic and operational initiatives. At December 31, 2005, future minimum principal payments on long-term debt were as follows:     2006       245         2007       982         2008       982         2009       982         2010       69,462         Thereafter       148,072         Total       $   220,725                  (b)   Line of Credit The Company may borrow, through March 15, 2009, up to $20.0 million under a revolving credit agreement included in the 2004 senior credit facility. Borrowings under the agreement are subject to the same provisions described in the long term debt section of this Note. The Company had no outstanding borrowings under this line of credit as of December 31, 2005. (8)          INCOME TAXES Total income taxes for the periods indicated were allocated as follows:             Successor Company               Predecessor Company                 Year Ended   December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year Ended   December 31,                 2005       2004               2004       2003         Income from   continuing operations           $   33               $   (6,350   )                   $   (2,845   )           $   7,113             Stockholders’ equity:                                                                                 Additional minimum pension   liability           (665   )           (100   )                   —               (72   )         Mark to market adjustment on derivative instruments           9               (9   )                   (74   )           118             Total income taxes           $   (623   )           $   (6,459   )                   $   (2,919   )           $   (7,159   )           53    The income tax expense (benefit) attributable to income for continuing operations, for the periods indicated, is as follows:             Successor Company               Predecessor Company                 Year Ended   December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year Ended   December 31,                 2005       2004               2004       2003         Current:                                                                                 Federal           $   —               $   —                       $   —               $   —             State           40               30                       10               40             Foreign           194               52                       43               190             Total current           234               82                       53               230             Deferred:                                                                                 Federal           (169   )           (5,425   )                   (2,439   )           5,795             State           (32   )           (1,007   )                   (459   )           1,088             Total deferred           (201   )           (6,432   )                   (2,898   )           6,883             Total           $   33               $   (6,350   )                   $   (2,845   )           $   7,113               The actual income tax expense (benefit) attributable to income for continuing operations differs from the amounts computed by applying the U.S. federal tax rate of 34% to the pretax earnings as a result of the following:             Successor Company               Predecessor Company                 Year   Ended   December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year   Ended   December 31,                 2005       2004               2004       2003         Computed “expected” tax   expense (benefit)       $   (147   )       $   (5,717   )                   $   (4,235   )           $   6,110             State tax, net of   federal benefit       5           (645   )                   (296   )           744             Foreign taxes       194           52                       43               190             Transaction expenses       —           —                       1,643               —             Other       (19   )       (40   )                   —               69             Actual income tax expense (benefit)       $   33           $   (6,350   )                   $   (2,845   )           $   7,113               The components of deferred tax assets and liabilities for the years ended December 31, 2005 and 2004 are as follows:             2005       2004         Deferred tax assets:                         Goodwill       $   35,831       $   40,646         Accrued liabilities       1,484       1,440         Asset impairment       704       704         Net operating loss   carryforwards       7,867       7,129         Facility start-up costs       253       343         Pension liability       722       695         Post retirement benefit   obligation       1,162       1,318         Uniform capitalization       341       140         Other       —       64         Gross deferred tax   assets       $   48,364       $   52,479         Deferred tax   liabilities:                         Identifiable intangible   assets       $   (50,263   )   $   (55,511   )     Property, plant and   equipment       (2,588   )   (2,275   )     Other       (44   )   (96   )     Net deferred tax asset (liability)       $   (4,531   )   $   (5,403   )       54    At December 31, 2005, the Company had net operating loss carryforwards for federal and state income tax purposes of approximately $20,700 which expire between 2020 and 2025. (9)          EMPLOYEE BENEFIT PLANS True Temper Sports, Inc. has a qualified pension plan for the hourly union employees at its Amory, Mississippi plant. The following tables provide a reconciliation of the changes in the plans’ benefit obligation, fair value of assets and a statement of the plans’ funded status for the year ended December 31, 2005 and for the periods January 1, 2004 through March 14, 2004 and March 15, 2004 to December 31, 2004:             Successor Company               Predecessor   Company                 Year Ended   December 31,   2005       Period from   March 15 to   December 31,   2004               Period from   January 1 to   March 14,   2004         Reconciliation of   benefit obligation:                                                                 Benefit   obligation at beginning of period           $   17,373               $   16,547                       $   15,687             Service cost           550               406                       180             Interest cost           1,026               764                       203             Actuarial losses           455               (91   )                   543             Benefit payments           (389   )           (253   )                   (66   )         Benefit obligation at end of period           $   19,015               $   17,373                       $   16,547             Reconciliation of fair value of plan assets:                                                                 Fair value of plan assets at beginning of period           $   13,387               $   13,374                       $   13,145             Actual return on plan assets           (239   )           266                       295             Employer contributions           285               —                       —             Benefit payments           (389   )           (253   )                   (66   )         Fair value of plan assets at end of year           $   13,044               $   13,387                       $   13,374             Funded status:                                                                 Funded status at December 31           $   (5,971   )           $   (3,986   )                   $   (3,173   )         Unrecognized net actuarial loss           2,320               505                       —             Net amount   recognized           $   (3,651   )           $   (3,481   )                   $   (3,173   )           The following table provides the amounts recognized in the statement of financial position for the year ended December 31, 2005 and for the periods January 1, 2004 through March 14, 2004 and March 15, 2004 to December 31, 2004:             Successor Company               Predecessor   Company                 Year Ended   December 31,   2005       Period from   March 15 to   December 31,   2004               Period from   January 1 to   March 14,   2004         Accrued benefit   liability           $   (5,666   )           $   (3,746   )                   $   (2,923   )         Accumulated other   comprehensive loss (income)           2,015               265                       (250   )         Net amount   recognized           $   (3,651   )           $   (3,481   )                   $   (3,173   )           55    The Company expects to make quarterly contributions of $102 to the pension plan in 2006. The following table sets forth the estimated benefit payments, which reflect expected future service, as appropriate, expected to be paid in the periods indicated.     2006       $   540         2007       $   630         2008       $   740         2009       $   839         2010       $   930         2011–2015       $   6,091           The following table provides the components of net periodic expense for the defined benefit pension plans for the year ended December 31, 2005 and for the periods January 1, 2004 through March 14, 2004 and March 15, 2004 to December 31, 2004, and for the year ended December 31, 2003:             Successor Company               Predecessor Company                 Year ended   December 31,   2005       Period from   March 15 to   December 31,   2004               Period from   January 1 to   March 14,   2004       Year ended   December 31,   2003         Service cost of   benefits earned during the year           $   550               $   406                       $   180               $   460             Interest cost on   projected benefit obligation           1,026               764                       203               832             Expected return   on plan assets           (1,120   )           (862   )                   (227   )           (964   )         Amortization of   prior service cost           —               —                       30               —             Net periodic pension expense           $   456               $   308                       $   186               $   328             Purchase   accounting recognition           —               —                       2,987               —             Net periodic pension expense           $   456               $   308                       $   3,173               $   328             Weighted average   assumptions:                                                                                 Discount rate:                                                                                 Benefit obligation           5.75   %           6.00   %                   6.25   %           6.25   %         Expected return on plan assets           8.50   %           8.50   %                   8.50   %           8.50   %         Rate of   compensation increase           3.00   %           3.00   %                   3.00   %           3.00   %           The following table provides information related to the Company’s pension plan in which accumulated benefit obligations exceeded the fair value of plan assets as of the applicable period end:             Successor   Company               Predecessor   Company                  Year Ended   December 31,   2005       Period from   March 15 to   December 31,   2004               Period from   January 1 to   March 14,   2004         Projected benefit   obligation           $   19,015               $   17,373                       $   16,547             Accumulated   benefit obligation           $   18,710               $   17,133                       $   16,298             Fair value of assets           $   13,044               $   13,387                       $   13,374               56     Assets of the defined benefit plan for hourly union employees consist primarily of investments in equity securities, debt securities, and cash equivalents. The weighted-average asset allocations for the year ended December 31, 2005 and for the periods January 1, 2004 through March 14, 2004 and March 15, 2004 to December 31, 2004, by asset category, are as follows:             Successor Company               Predecessor   Company                         Year Ended   December 31,   2005       Period from   March 15 to   December 31,   2004               Period from   January 1 to   March 14,   2004       Target         Equity securities           61.0   %           59.0   %                   52.0   %       50-70   %     Debt securities           33.0   %           41.0   %                   47.9   %       30-50   %     Cash and other           6.0   %           0.0   %                   0.1   %       0   %     Total           100.0   %           100.0   %                   100.0   %       100.0   %       In addition to the defined benefit pension plan for hourly employees, the Company also maintains a defined contribution plan which covers substantially all employees. Expenses for defined contribution plans amounted to $635 for the year ended December 31, 2005, $148 for the period January 1, 2004 through March 14, 2004, $575 for the period March 15, 2004 to December 31, 2004, and $779 for the year ended December 31, 2003. The Company also participates in certain unfunded health care plans that provide post-retirement medical, dental, and life insurance to hourly union employees at its Amory, Mississippi plant and to salaried employees hired prior to January 1, 2000. The post-retirement plans are contributory, and include certain cost-sharing features, such as deductibles and co-payments. The following table sets forth the benefit obligation of the unfunded post-retirement health plans for the year ended December 31, 2005 and for the periods January 1, 2004 through March 14, 2004 and March 15, 2004 to December 31, 2004:             Successor Company               Predecessor   Company                 Year Ended   December 31,   2005       Period from   March 15 to   December 31,   2004               Period from   January 1 to   March 14,   2004         Reconciliation of   benefit obligation:                                                                 Benefit obligation at beginning of period           $   3,554               $   3,575                       $   3,515             Service cost           91               78                       20             Interest cost           220               162                       44             Participant contributions           185               108                       28             Actuarial loss           723               81                       86             Benefits paid           (904   )           (450   )                   (118   )         Benefit obligation at end of period           3,869               3,554                       3,575             Unrecognized net actuarial loss           (804   )           (81   )                   —             Accrued benefit   costs           $   3,065               $   3,473                       $   3,575               57    The following table provides the components of net periodic expense for the unfunded post retirement health plans for the year ended December 31, 2005 and for the periods January 1, 2004 through March 14, 2004 and March 15, 2004 to December 31, 2004, and for the year ended December 31, 2003:             Successor Company               Predecessor Company                 Year Ended   December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year Ended   December 31,                 2005       2004               2004       2003         Service cost           $   91               $   78                       $   20               $   85             Interest cost           220               162                       44               217             Amortization of   prior service costs           —               —                       (7   )           (37   )         Recognized net   losses           —               —                       13               54             Net periodic cost           $   311               $   240                       $   70               $   319             Purchase   accounting recognition           —               —                       1,060               —             Total amount recognized           $   311               $   240                       $   1,130               $   319             Discount Rate:                                                                                 Benefit   obligation           5.75   %           6.00   %                   6.00   %           6.25   %           The healthcare cost trend rate used to determine the post-retirement benefit obligation was 10.0% for 2005. This rate decreases gradually to an ultimate rate of 5.0% in 2014, and remains at that level thereafter. While the trend rate can be a significant factor in determining the amounts reported, for the year ended December 31, 2005 a one-percentage-point increase or decrease in the trend rate will have only minimal impact due to the claims costs being close to the employer imposed cap. (10) STOCK OPTIONS In 2004, the Company’s parent, True Temper Corporation (“TTC”) adopted an equity incentive plan (the “2004 Plan”) pursuant to which TTC’s board of directors may grant equity incentive awards to officers and key employees of the Company. The 2004 Plan authorizes grants of options to purchase and grants of restricted shares, in total, up to 1,008,051 shares of authorized but unissued common stock. Stock options are granted with an exercise price equal to the stock’s fair market value at the date of grant. All stock options have 10 year terms and vest and become fully exercisable at differing time periods up to four years from the date of grant. At December 31, 2005, there were 79,430 shares available for grant under the 2004 Plan. The per share weighted average fair value of stock options granted during 2005 was $2.41, on the date of grant using the Black Scholes option-pricing model (excluding a volatility assumption) with the following weighted average assumptions:     Expected dividend   yield       0.0   %     Risk free rate of   return       4.21   %     Expected life (years)       4.7           Stock option activity during 2005 is as follows:             Number of   Shares       Wtd. Avg.   Exercise   Price         Granted           525,400               $   13.56             Exercised           —               —             Forfeited           —               —             Balance at   December 31, 2005           524,400               $   13.56               58      No stock options expired in 2005. At December 31, 2005, the exercise price and weighted average remaining contractual life of outstanding options was $13.56 and 9.6 years, respectively. At December 31, 2005 there were no options exercisable. (11)   COMMITMENTS AND CONTINGENCIES (a)   Lease Obligation The Company is obligated under various non-cancelable leases for office facilities and equipment. These leases generally provide for renewal options and, in the case of facilities leases, for periodic rate increases based upon economic factors. All non-cancelable leases with an initial term greater than one year have been categorized as either capital or operating leases in conformity with SFAS No. 13, Accounting for Leases. Future minimum payments under non-cancelable operating leases with initial terms of one year or more as of December 31, 2005 are as follows:              Operating   Leases         2006           $   1,096             2007           1,076             2008           779             2009           291             2010           284             Thereafter           143             Total minimum   lease payments           $   3,669               Rental expense on operating leases was $1,067 for the year ended December 31, 2005, $210 for the period January 1, 2004 through March 14, 2004, $812 for the period March 15, 2004 to December 31, 2004, and $1,002 for the year ended December 31, 2003. (b)   Product Warranties The Company generally warrants its products against certain manufacturing and other defects. These product warranties are provided for specific periods of time and/or usage of the product depending on the nature of the product, the geographic location of its sale and other factors. As of December 31, 2005 and 2004, the Company has accrued $309 and $153, respectively, for estimated product warranty claims. The accrued product warranty costs are based primarily on historical experience of actual warranty claims as well as current information on product costs. Warranty claims expense was $959 for the year ended December 31, 2005, $129 for the period January 1, 2004 through March 14, 2004, $527 for the period March 15, 2004 to December 31, 2004, and $812 for the year ended December 31, 2003. 59    The following table provides the changes in the Company’s product warranties:     Predecessor:                 January 1,   2003       $   137         Liabilities accrued for warranties issued during the   period       812         Warranty claims paid during the period       (773   )     December 31,   2003       $   176         Liabilities accrued for warranties issued during the   period       129         Warranty claims paid during the period       (91   )     March 15,   2004       $   214         Successor:                 Liabilities accrued for warranties issued during the   period       527         Warranty claims paid during the period       (588   )     December 31,   2004       $   153         Liabilities accrued for warranties issued during the   period       959         Warranty claims paid during the period       (803   )     December 31, 2005       $   309           (c)   Legal Proceedings The Company has certain contingent liabilities resulting from litigation and claims incident to the ordinary course of business. Management believes that the probable resolution of such contingencies will not materially affect the consolidated financial position or results of operations of the Company. (12)   RELATED PARTY TRANSACTIONS On March 15, 2004, True Temper entered into a management services agreement with an entity affiliated with Gilbert Global, which is a related party through its indirect management and ownership interest in True Temper Corporation. In accordance with this agreement, Gilbert Global has agreed to provide: (1)          general management services; (2)   assistance with the identification, negotiation and analysis of acquisitions and dispositions; (3)   assistance with the negotiation and analysis of financial alternatives; and (4)   other services agreed upon by True Temper and Gilbert Global. In exchange for such services, Gilbert Global or its nominee receives: (1)          an annual advisory fee of $0.5 million payable quarterly, plus reasonable out-of-pocket expenses; (2)          a transaction fee in an amount equal to 1.25% of the aggregate transaction value in connection with the consummation of any material acquisition, divestiture, financing or refinancing by True Temper or any of its subsidiaries. The management services agreement has an initial term of five years, subject to automatic one-year extensions unless the Company or Gilbert Global provides written notice of termination. The annual advisory fee of $0.5 million is an obligation of the Company and is also contractually subordinated to the Notes and the bank credit facilities. 60    On March 15, 2004, the Company terminated its management services agreement with Cornerstone Equity Investors, LLC, which was a related party through its indirect management and ownership interest in the predecessor company. (13)   SEGMENT AND OTHER RELATED DISCLOSURES (a)   Segment Reporting The Company operates in two reportable business segments: golf shafts and performance sports. The Company’s reportable segments are based on the type of product manufactured and the application of that product in the marketplace. The golf shaft segment manufactures and sells steel and composite golf shafts for use exclusively in the golf industry. The performance sports segment manufactures and sells high strength, tight tolerance tubular components for bicycle, hockey and other recreational sports markets. The accounting policies for these segments are the same as those described in the summary of significant accounting policies. The Company evaluates the performance of these segments based on segment sales and gross profit. The Company has no inter-segment sales. General corporate assets that are not allocated down to segments, include: cash, non-trade receivables, deferred tax assets and liabilities, deferred financing costs, corporate property plant and equipment, goodwill and other intangible assets.             Successor Company               Predecessor Company                 Year Ended    December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year Ended   December 31,                 2005       2004               2004       2003          Net sales:                                                                                 Golf shafts           $   110,820               $   73,274                       $   19,067               $   109,754             Performance sports           6,774               4,846                       1,180               6,452             Total           $   117,594               $   78,120                       $   20,247               $   116,206             Gross profit:                                                                                 Golf shafts           $   45,804               $   17,038                       $   8,080               $   45,118             Performance sports           1,428               978                       296               1,618             Total           $   47,232               $   18,016                       $   8,376               $   46,736             Depreciation Expense:                                                                                 Golf shafts           $   2,242               $   2,098                       $   582               $   2,486             Performance sports           483               322                       89               420             Total           $   2,725               $   2,420                       $   671               $   2,906             Capital Expenditures:                                                                                 Jointly used assets           $   143               $   129                       $   22               $   —             Golf shafts           1,686               810                       286               3,112             Performance sports           783               293                       22               348             Total           $   2,612               $   1,232                       $   330               $   3,460             Total assets:                                                                                 Jointly used assets           $   1,810               $   1,291                       $   1,398               $   1,333             Golf shafts           42,693               44,237                       42,019               41,087             Performance sports           4,210               3,333                       2,920               2,997             Total           $   48,713               $   48,861                       $   46,337               $   45,417               Revenues from two customers of True Temper’s golf shafts segment represented approximately $16,100 or 13.7%, and $14,700 or 12.5%, respectively, of the Company’s 2005 revenues. Revenues from two customers of True Temper’s golf shafts segment represented approximately $2,900 or 14.2%  61    and $2,200 or 10.6% of the Company’s revenues for the period January 1 to March 14, 2004. Revenues from one customer of True Temper’s golf shafts segment represented approximately $11,000 or 14.1% of the Company’s revenues for the period March 15 to December 31, 2004. Revenues from two customers of True Temper’s golf shafts segment represented approximately $16,000 or 13.7%, and $13,500 or 11.6%, respectively, of the Company’s 2003 revenues.  Following are reconciliations of total reportable segment assets to total Company assets, as of December 31, and total reportable segment gross profit to total Company income before income taxes for the periods indicated:             2005       2004         Total assets:                         Total from reportable segments       $   48,713       $   48,861         General corporate and other unallocated assets       299,342       311,964         Total       $   348,055       $   360,825                       Successor Company               Predecessor Company                 Year Ended   December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year Ended   December 31,                 2005       2004               2004       2003         Total reportable   segment gross profit           $   47,232               $   18,016                       $   8,376               $   46,736             Less:                                                                                 Selling, general and administrative expenses           14,660               9,520                       3,635               14,747             Amortization of intangible assets           13,840               10,984                       —               —             Business development, start-up costs and transition   costs           208               738                       100               869             Transaction and reorganization   expense           —               25                       5,381               —             Impairment charge on long lived assets           357               —                       —               —             Loss on early extinguishment of long-term debt           —               —                       9,217               —             Interest expense           18,631               13,491                       2,498               13,017             Other expense (income), net           (31   )           72                       (2   )           132             Total Company income   (loss) before income taxes           $   (433   )           $   (16,814   )                   $   (12,453   )           $   17,971               (b)   Sales by Geographic Region The geographic distribution of the Company’s net sales, by location of customer, is summarized as follows:              Successor Company               Predecessor Company                 Year Ended   December 31,       Period from   March 15 to   December 31,               Period from   January 1 to   March 14,       Year Ended   December 31,                 2005       2004               2004       2003         U.S.           $   75,151               $   49,700                       $   12,140               $   79,652             International           42,443               28,420                       8,107               36,554             Total           $   117,594               $   78,120                       $   20,247               $   116,206               62    Revenues generated from sales into Southern China accounted for approximately $20,900 or 17.7% of True Temper’s total sales for the year ended December 31, 2005, $3,300 or 16.4% of True Temper’s total sales for the period January 1 to March 14, 2004, $14,200 or 18.2% of True Temper’s total sales for the period March 15 to December 31, 2004, and $16,200 or 14.0% for the year ended December 31, 2003. The sales into Southern China are due primarily to our major U.S. based original equipment manufacturers shifting a portion of their assembly operations to that region. Assets by location are not disclosed, as assets located outside the U.S. are immaterial. (14)   SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED) The following is a summary of unaudited quarterly results of operations for the years ended December 31, 2005 and 2004.             First   Quarter       Second   Quarter       Third   Quarter       Fourth   Quarter         Predecessor:                                         2004                                         Net sales       $   20,247       —       —       —         Gross profit       8,376       —       —       —         Net income       (9,608   )   —       —       —                                    First   Quarter       Second   Quarter       Third   Quarter       Fourth   Quarter         Successor:                                         2004                                         Net sales       $   9,964       $   25,333       $   21,308       $   21,515         Gross profit       3,976       10,210       8,379       (4,549   )     Net income       1,597       1,713       748       (14,522   )     2005                                         Net sales       $   32,103       $   32,565       $   25,520       $   27,406         Gross profit       12,869       13,251       10,443       10,669         Net income       184       570       (661   )   (559   )       (15) SUBSEQUENT EVENT As more fully described in Note 7, the Company amended and restated its 2004 Senior Credit Facility on March 27, 2006. 63    Item 9.        Changes in and Disagreements With Accountants on Accounting and Financial Disclosure None. Item 9A.     Controls and Procedures Evaluation of Disclosure Controls and Procedures Evaluations required by Rule 13a-15 of the Securities Exchange Act of 1934 of the effectiveness of the Company’s disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this Report have been carried out under the supervision and with the participation of the Company’s management, including its Chief Executive Officer and Chief Financial Officer. Based upon such evaluations, the Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective. There have been no changes in the Company’s internal controls over financial reporting during the period covered by this Report that were identified in connection with the evaluation referred to above that have materially affected, or are reasonably likely to materially affect, the Company’s internal controls over financial reporting. Item 9B.     Other Information None. 64     PART III Item 10.                 Directors and Executive Officers of the Registrant The directors and executive officers of True Temper as of December 31, 2005 are as follows:     Name               Age       Position         Scott C. Hennessy           47           Chief   Executive Officer, President and Director         Fred H. Geyer           45           Senior   Vice President, Chief Operating Officer         Adrian H. McCall           48           Senior   Vice President of Global Distribution and Sales         Stephen M. Brown           40           Vice   President of Human Resources         Graeme Horwood           61           Vice   President Engineering, Research and Development         Jason A. Jenne           36           Vice   President, Chief Financial Officer and Treasurer         Gene Pierce           39           Vice   President of Manufacturing         Steven J. Gilbert           58           Director   and Co-Chairman         Steven Kotler           58           Director   and Co-Chairman         Richard W.   Gaenzle, Jr.           41           Director         Jeffery W.   Johnson           37           Director         William P. Lauder           45           Director           Scott C. Hennessy has been the President since 1996, and the Chief Executive Officer and Director since October 1998. Mr. Hennessy joined us in 1994 as Vice President-Sales and Marketing. From 1980 to 1994, Mr. Hennessy held various management positions at Black & Decker in sales, marketing and product development. Mr. Hennessy sits on the Board of Governors of the National Golf Foundation. Mr. Hennessy graduated magna cum laude with a B.S. from the University of Delaware.  Fred H. Geyer has been the Chief Operating Officer since January 2005, and Senior Vice President since August 2002. From 1998 through 2004, Mr. Geyer served as the Company’s Chief Financial Officer. From 1985 to 1998, Mr. Geyer held various positions at Emerson Electric Company, including Vice President-Finance in the Air Moving Motor Division. Prior to that, Mr. Geyer worked at Arthur Andersen LLP as a Senior Auditor. Mr. Geyer is a Certified Public Accountant and is a member of the American Institute of Certified Public Accountants. Mr. Geyer graduated magna cum laude with a B.S. in Accounting from the University of Missouri at St. Louis.  Adrian H. McCall has been the Senior Vice President of Global Distribution and Sales since August 2002. From March 1999 to July 2002, Mr. Mc Call served as our Vice President of International Sales and Marketing since March 1999. From September 1995 to March 1999, Mr. McCall served as our Director of International Sales and Marketing. From May 1992 to September 1995, Mr. McCall served as Director of International Operations of The Upper Deck Company, a manufacturer and distributor of baseball cards. Mr. McCall graduated cum laude with a B.S. from the University of Hartford.  Stephen R. Brown has been the Vice President of Human Resources since August 2002. From January 1998 to July 2002, Mr. Brown has served as our Director of Human Resources. From September 1996 to December 1997, Mr. Brown served as the Manager-Human Resources. Prior to that, since 1992, Mr. Brown served in various Human Resource management positions with Emerson Electric Company. Mr. Brown received a B.A. from the University of South Carolina.  Graeme Horwood has been the Vice President of Engineering, Research and Development since June 2001. From April 2000 to May 2001, Mr. Horwood served as our Senior Manager Technical Services. From 1986 to 2000, Mr. Horwood held various management positions at Apollo Sports Technologies. Mr. Horwood is a Chartered Engineer as well as a member of the Institute of Mechanical Engineers both in the United Kingdom. Mr. Horwood graduated first class honors with a B.S. from Coventry University.  65    Jason Jenne has been the Chief Financial Officer and Treasurer since January 2005 and Vice President since August 2003. From September 2002 to August 2003, Mr. Jenne served as the Director of Corporate Finance. From September 1998 to September 2002, Mr. Jenne served as the Corporate Controller. From 1993 to 1998, Mr. Jenne served in various Finance and Accounting positions at Emerson Electric Company. Mr. Jenne graduated magna cum laude with a B.S. from Southern Illinois University.  Gene Pierce has been the Vice President of Manufacturing since June 2001. From January 1999 to June 2001, Mr. Pierce served as the Director of Steel Operations and Plant Manager of our steel facility. From May 1997 to January 1999, Mr. Pierce served as Business Operations Manager at Metalloy Corporation. Mr. Pierce received both a B.S. and M.B.A. from Mississippi State University. Steven J. Gilbert became a member of and Co-Chairman of the board of directors upon consummation of the Gilbert Global Acquisition. He is a founder and has served as Chairman of the Board of Gilbert Global Equity Partners, L.P. since 1997. From 1992 to 1997, he was the founder and Managing General Partner of Soros Capital L.P., the principal venture capital and leveraged transaction entity of Quantum Group of Funds, and a principal Advisor to Quantum Industrial Holdings Ltd. From 1988 through 1992 he was the Managing Director of Commonwealth Capital Partners, L.P., a private equity investment firm. From 1984 to 1988, Mr. Gilbert was the Managing General Partner of Chemical Venture Partners (now J.P. Morgan Partners), which he founded. Mr. Gilbert is a Director of LCC International, Inc., Optical Capital Group, Inc., Montpelier Re Holdings Ltd., Olympus Re Holdings Ltd., CPM Holdings, Inc., the Asian Infrastructure Fund and J O Hambro Investment Management, Ltd. Previously, Mr. Gilbert has been a director of numerous public and private companies. Mr Gilbert received a B.S. from the Wharton School at the University of Pennsylvania, an M.B.A. from the Harvard Graduate School of Business Administration, and a J.D. from Harvard Law School.  Steven Kotler became a member of and Co-Chairman of the board of directors upon consummation of the Gilbert Global Acquisition. He has served as Vice Chairman of Gilbert Global Equity Partners, L.P. since 2000. Prior to joining Gilbert Global, Mr. Kotler was Co-Chairman, Chief Executive Officer and President of Schroder & Co. and it predecessor firm, Wertheim & Co. Mr. Kotler is a member of the Board of Directors of CPM Holdings, Inc. Previously, Mr Kotler has served as a Governor of the American Stock Exchange and a director of numerous public and private companies. Mr. Kotler is a graduate of city College of New York.  Richard W. Gaenzle, Jr. became a member of the board of directors upon consummation of the Gilbert Global Acquisition. He is a founder and has served as Managing Director of Gilbert Global Equity Partners, L.P. since 1997. From 1992 to 1997, he was a principal of Soros Capital L.P., the principal venture capital and leveraged transaction entity of Quantum Group of Funds, and a principal Advisor to Quantum Industrial Holdings Ltd. Prior to joining Soros Capital, Mr. Gaenzle held various positions in the investment banking industry. Mr. Gaenzle is Vice Chairman of Optical Capital Group, LLC and a Director of CPM Holdings, Inc. Previously, Mr. Gaenzle has been a director of numerous companies. Mr. Gaenzle received a B.A. from Hartwick College and an M.B.A. from Fordham University.  Jeffrey W. Johnson became a member of the board of directors upon consummation of the Gilbert Global Acquisition. He is a founder and has served as Managing Director of Gilbert Global Equity Partners, L.P. since 1997. Mr. Johnson was previously with Goldman, Sachs & Co. in its mergers and acquisitions department, Hallmark Cards, Inc. and Frank Russell Company. He is a director of CPM Holdings, Inc. Mr. Johnson received a B.A. from Claremont McKenna College and an M.B.A. from the Harvard Graduate School of Business Administration.  William P. Lauder became a member of the board of directors in 2004. In July 2004 Mr. Lauder was named the President and Chief Executive Officer of Estee Lauder Companies, Inc. He joined Estee Lauder Companies in 1986 and held numerous positions of increasing responsibility. Mr. Lauder received a B.A. and an M.B.A. from the Wharton School at the University of Pennsylvania.  66    Code of Ethics.  The Audit Committee of the Board of Directors has adopted a Code of Ethics for the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, and other senior financial personnel. A copy of the Code of Ethics is available on the Company’s website at www.truetemper.com. The Company will disclose any amendments or waivers of the Code of Ethics on the same website. Audit Committee.  The Board of Directors has determined that Steven Kotler is an “audit committee financial expert” as defined in the rules and regulations adopted by the Securities and Exchange Commission.  Item 11.                 Executive Compensation The following table sets forth information concerning the annual and long-term compensation for services in all capacities to True Temper for 2005, 2004 and 2003 of those persons who served as (1) the Chief Executive Officer during 2005 and (2) the other four most highly compensated executive officers of True Temper for 2005 (the “Named Executive Officers”): Summary Compensation Table                    Annual Compensation       Long-Term Compensation         Name and   Principal Position               Year       Salary       Bonus   Earned       Other   Annual   Compensation(1)       Awards   Restricted   Stock(2)       All Other   Compensation(3)         Scott C. Hennessy       2005       $   416,667       $   205,000           $   28,951           $   —           $   6,994             Chief Executive Officer,       2004       $   400,000       $   —           $   28,910           $   2,603,520           $   10,182             President and Director       2003       $   359,167       $   550,000           $   28,191           $   —           $   9,933             Fred H. Geyer       2005       $   208,333       $   90,000           $   18,097           $   —           $   9,798             Senior   Vice President,       2004       $   200,000       $   —           $   17,284           $   1,139,040           $   10,190             Chief   OperatingOfficer       2003       $   185,417       $   200,000           $   17,699           $   —           $   10,000             Adrian H. McCall       2005       $   183,333       $   67,000           $   18,075           $   —           $   9,167             Senior Vice President of       2004       $   175,000       $   —           $   17,917           $   813,600           $   10,250             International Sales and        2003       $   166,255       $   160,000           $   17,765           $   —           $   10,000             Marketing                                                                         Gene Pierce       2005       $   160,667       $   38,000           $   36,043   (4)       $   —           $   8,033             Vice President of       2004       $   154,000       $   —           $   154           $   325,440           $   10,250             Operations       2003       $   150,505       $   90,000           $   28,259   (4)       $   —           $   10,032             Jason A. Jenne       2005       $   154,167       $   45,000           $   18,563           $   —           $   3,854             Vice President,   Chief         2004       $   125,000       $   —           $   115           $   488,160           $   5,000             Financial Officer and       2003       $   110,417       $   75,000           $   84           $   —           $   3,760             Treasurer                                                                                                     (1)    Includes certain life insurance benefits; and where applicable, country club dues and car allowance. (2)    The amounts in the table represent the value of the restricted shares based on the price of $13.56 per share of common stock on the date of grant. Shares of True Temper Corporation are not traded on any public exchange, therefore information regarding the value of the restricted shares as of December 31, 2005 has been omitted. The restrictions on the shares are lifted, and the restricted stock vests, only with certain future performance goals being achieved. Depending on future performance, the restricted shares can have a value ranging from $0 to the value listed.  (3)    Includes company contributions under our 401(k) plan.  (4)    Amount includes moving and relocation benefits. 67    Pension Plan True Temper Sports, Inc. sponsors a tax qualified defined benefit pension plan. Only the hourly employees at the Amory, Mississippi manufacturing plant, who are part of the collective bargaining unit of the United Steel Workers, are eligible to participate in the plan. Benefits are calculated based primarily on years of service, among other factors. As of December 31, 2005, none of True Temper Corporation’s named executive officers were eligible to participate in the plan. Equity Incentive Plan The Board of Directors has adopted an equity incentive plan which provides for the grant to certain key employees and/or directors of (i) options to purchase common stock of TTC that are non-qualified options or incentive stock options for federal income tax purposes, and/or (ii) shares of common stock of TTC restricted stock, restricted stock units or stock appreciation rights. The equity incentive plan is administered by the Compensation Committee of the Board of Directors. The Compensation Committee has broad powers under the stock option plan, including exclusive authority to determine: (1)   who will receive awards;  (2)   the type, size and terms of awards;  (3)   the time when awards will be granted; and  (4)   vesting criteria, if any, of the awards.  Option / SAR Grants in Last Fiscal Year  The following table sets forth all True Temper Corporation common stock options granted to Named Executives Officers during 2005.             Number of   Securities   Underling   Options       % of   Total   Granted to   Employees   In Fiscal       Exercise   Or Base   Price       Expiration       Potential   Realized Value of   Assumed Annual   Rates of Stock Price   Appreciation   For Option Term         Name               Granted       Year       ($ / sh)       Date       5%       10%         Scott C. Hennessy           144,000               26.0   %           $   13.56           March 15,   2014       $   1,228,005       $   3,112,005         Fred H. Geyer           72,000               13.0   %           $   13.56           March 15,   2014       614,002       1,556,003         Adrian H. McCall           50,200               9.1   %           $   13.56           March 15,   2014       428,096       1,084,880         Gene Pierce           28,800               5.2   %           $   13.56           March 15, 2014       245,601       622,401         Jason A. Jenne           36,000               6.5   %           $   13.56           March 15, 2014       307,001       778,002                                      The value of the options presented assumes that 100% of the options vest during the option term. A portion of the underlying options vest based on service, and a portion vest based on company performance. Based on future financial performance, the ultimate value of the options may be significantly less than presented in this table. Aggregated Options / SAR Exercises and Fiscal Year-end Option / SAR Value Table  None. Compensation of Directors True Temper will reimburse directors for any out-of-pocket expenses incurred by them in connection with services provided in such capacity. In addition, we may compensate directors for services provided in such capacity. 68     Item 12.      Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters All of the outstanding shares of our capital stock are owned by TTC. The following table sets forth information with respect to the beneficial ownership of TTC’s capital stock as of March 30, 2005 by: (1)   all stockholders of TTC that own more than 5% of any class of such voting securities, (2)   each director and named executive officer, and (3)   all directors and executive officers as a group.     Name of Beneficial Owner(1)               Number of   Common   Shares       Percentage of   Outstanding   Common   Stock         TTS Holdings LLC   c/o Gilbert Global Equity Capital, LLC.   590 Madison Avenue   40th Floor   New York, New York 10022       8,778,919           96.8   %         Scott C. Hennessy       167,021           1.8   %         Fred H. Geyer       29,509           *             Adrian H. McCall       29,509           *             Gene Pierce       5,533           *             Jason A. Jenne       3,689           *             All directors and   executive officers as a group (7 persons)       245,589           2.7   %          *       Less than 1%. (1)   Except as otherwise indicated, the address for all persons shown on this table is c/o True Temper Sports, Inc., 8275 Tournament Drive, Suite 200, Memphis, TN 38125.   Item 13.                 Certain Relationships and Related Transactions Stock Purchase Agreement In accordance with the terms of the Purchase Agreement by and among TTS Holdings LLC, True Temper Corporation, and True Temper Sports, LLC and others dated January 30, 2004 (the “Stock Purchase Agreement”), Sellers, as defined in the Stock Purchase Agreement, have indemnified TTS Holdings, LLC, the purchaser, against any and all damages resulting from any misrepresentation or breach of warranty of Sellers contained in the Stock Purchase Agreement, for claims made within 18 months following the closing date, except that claims involving environmental matters, tax matters, or employee benefit matters shall survive for a period of 36 months following the closing date. The indemnification obligations of the Sellers under the Stock Purchase Agreement are generally subject to a $10.0 million basket amount and are limited to an aggregate payment of no more than the total amount held in escrow. Stockholders Agreement Upon the consummation of the Stock Purchase Agreement, TTC and all of its stockholders, including TTS Holdings, LLC, entered into a stockholders agreement. The stockholders agreement: (1)         requires that each of the parties vote all of their voting securities of TTC and take all other necessary or desirable actions to cause the size of the board of directors of TTC to be established at the number of members determined by TTS Holdings, LLC and to cause designees of TTS  69    Holdings, LLC representing a majority of the board of directors to be elected to the board of directors of TTC; (2)         grants TTC and TTS Holdings, LLC a right of first refusal on any proposed transfer of shares of capital stock of TTC held by any of the stockholders; (3)         grants tag-along rights on certain transfers of shares of capital stock of TTC; (4)         requires the stockholders to consent to a sale of TTC to an independent third party if such sale is approved by certain holders of the then outstanding shares of the company’s voting common stock; and Management Services Agreement In connection with the stock purchase agreement, True Temper entered into a management services agreement with Gilbert Global. In accordance with this agreement, Gilbert Global has agreed to provide: (1)         general management services; (2)         assistance with the identification, negotiation and analysis of acquisitions and dispositions; (3)         assistance with the negotiation and analysis of financial alternatives; and (4)         other services agreed upon by True Temper and Gilbert Global. In exchange for such services, Gilbert Global or its nominee receives: (1)         an annual advisory fee of $0.5 million payable quarterly, plus reasonable out-of-pocket expenses; (2)         a transaction fee in an amount equal to 1.25% of the aggregate transaction value in connection with the consummation of any material acquisition, divestiture, financing or refinancing by True Temper or any of its subsidiaries; and (3)         a one-time transaction fee of $2.5 million upon the consummation of the recapitalization. The management services agreement has an initial term of five years, subject to automatic one-year extensions unless we or Gilbert Global provide written notice of termination. The annual advisory fee of $0.5 million is an obligation of ours and is also contractually subordinated to the Notes and the senior credit facilities.  Item 14.                 Principal Accountants Fees and Services The following table represents aggregate fees billed to the Company for fiscal years ended December 31 by KPMG LLP, the Company’s principal accounting firm.             Fiscal Years Ended                 2005       2004         Audit fees       $160,000       $   159,000         Audit-related   fees(1)       25,000       17,500         Tax Fees(2)       37,500       40,310         All other fees(3)       —       130,906         Total fees(4)       $222,500       $   347,716          (1)          Primarily benefit plans audit services (2)          Primarily tax returns, advice and planning 70    (3)          Primarily advisory services relating to compliance with reporting requirements (4)          All fees have been approved by the Audit Committee The Audit Committee has considered whether performance of services other than audit services is compatible with maintaining the independence of KPMG LLP. Auditor Fees Pre-approval Policy In 2003, the Audit Committee adopted a policy concerning approval of audit and non-audit services to be provided by the independent auditor to the Company. The policy requires that all services KPMG LLP, the Company’s independent auditor, may provide to the Company, including audit services and permitted audit-related and non-audit services, excluding certain designated tax services, must be approved by the Audit Committee. The Committee approved all audit and non-audit services provided by KPMG during fiscal 2005. 71     PART IV Item 15.                 Exhibits and Financial Statements Schedule 1.                 Financial Statements.   The following financial statements of True Temper Sports, Inc. have been included in part II, item 8 of this report on Form 10-K: Report of Independent Registered Public Accounting Firm Consolidated Statements of Operations for the year ended December 31, 2005, and the period from March 15, 2004 to December 31, 2004 of the Company Consolidated Statements of Operations for the period from January 1, 2004 to March 14, 2004 and the year ended December 31, 2003 for the Predecessor Consolidated Balance Sheets at December 31, 2005 and 2004 Consolidated Statements of Stockholder’s Equity and Comprehensive Income for the year ended December 31, 2005, and the period from March 15, 2004 to December 31, 2004 of the Company Consolidated Statements of Stockholder’s Equity and Comprehensive Income for the period from January 1, 2004 to March 14, 2004 and the year ended December 31, 2003 for the Predecessor Consolidated Statements of Cash Flows for the year ended December 31, 2005, and the period from March 15, 2004 to December 31, 2004 of the Company Consolidated Statements of Cash Flows for the period from January 1, 2004 to March 14, 2004 and the year ended December 31, 2003 for the Predecessor Notes to the Consolidated Financial Statements  2.                 Financial Statement Schedule.  SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS                     Additions                                 Balance at   Beginning   of Period       Charged to   Costs and   Expenses       Charged to   Other   Accounts       Deductions(1)       Balance at   End   of Period                 Dollars in thousands   (debit)/credit                                 ALLOWANCE FOR   DOUBTFUL ACCOUNTS                                                                                         Year Ended December 31, 2003           653               256               —               (77   )           832             Year Ended December 31, 2004           832               109               —               (26   )           915             Year Ended   December 31, 2005           915               165               —               (669   )           411                (1)          Deductions represent uncollectible accounts charged against the allowance for doubtful accounts. All other schedules are omitted because they are not applicable or the required information is shown in the financial statements or notes thereto. 3.                 Exhibits. See the Index to Exhibits. 72     SIGNATURES Pursuant to the requirements of section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.       TRUE TEMPER   SPORTS, INC.         By:   /s/ SCOTT C. HENNESSY         Name:   Scott C. Hennessy         Title:   President and Chief Executive Officer         Date:   March 28, 2006      Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.       By:   /s/ STEVEN J.   GILBERT         Name:   Steven J. Gilbert         Title:   Director and Co-Chairman         Date:   March 28, 2006         By:   /s/ STEVEN KOTLER         Name:   Steven Kotler         Title:   Director and Co-Chairman         Date:   March 28, 2006         By:   /s/ RICHARD W. GAENZLE, JR.         Name:   Richard W. Gaenzle, Jr.         Title:   Director         Date:   March 28, 2006         By:   /s/ JEFFREY W. JOHNSON         Name:   Jeffrey W. Johnson         Title:   Director         Date:   March 28, 2006         By:   /s/ WILLIAM P. LAUDER         Name:   William P. Lauder         Title:   Director         Date:   March 28, 2006    73            By:   /s/ SCOTT C. HENNESSY         Name:   Scott C. Hennessy         Title:   President, Chief Executive   Officer   and Director         Date:   March 28, 2006         By:   /s/ JASON A.   JENNE         Name:   Jason A. Jenne         Title:   Vice President Chief Financial Officer and   Principal Accounting Officer         Date:   March 28, 2006      74     INDEX TO EXHIBITS    1.1       Purchase Agreement, dated as of March 3, 2004,   among True Temper Sports, Inc., Credit Suisse First Boston LLC and   Goldman, Sachs & Co. (filed as Exhibit 1.1 to True Temper   Sports, Inc.’s Registration Statement on Form S-4, as filed with   the Securities and Exchange Commission on April 13, 2004).*     4.1       Indenture, dated as of   March 15, 2004, among True Temper Sports, Inc., the Guarantors   identified therein, and The Bank of New York (filed as Exhibit 4.1 to   True Temper Sports, Inc.’s Registration Statement on Form S-4, as   filed with the Securities and Exchange Commission on April 13, 2004).*     4.2       Form of Senior   Subordinated Note due 2011 (filed as Exhibit 4.2 to True Temper   Sports, Inc.’s Registration Statement on Form S-4, as filed with   the Securities and Exchange Commission on April 13, 2004).*     4.3       Registration Rights   Agreement, dated as of March 15, 2004, among True Temper   Sports, Inc., El Cajon Equipment Corporation, True Temper Sports-PRC   Holdings, Inc., Credit Suisse First Boston LLC and Goldman,   Sachs & Co (filed as Exhibit 4.3 to True Temper   Sports, Inc.’s Registration Statement on Form S-4, as filed with   the Securities and Exchange Commission on April 13, 2004).*     10.1       Management Services Agreement, dated as of March 15, 2004, between GGEP Management,   L.L.C., GGEP Management (Bermuda) Ltd., and True Temper Sports, Inc.   (filed as Exhibit 10.1 to True Temper Sports, Inc.’s Registration   Statement on Form S-4, as filed with the Securities and Exchange   Commission on April 13, 2004).*     10.2       Shareholders Agreement,   dated as of March 15, 2004, by and among True Temper Corporation, TTS   Holdings LLC and the Other Investors identified therein (filed as   Exhibit 10.2 to True Temper Sports, Inc.’s Registration Statement   on Form S-4, as filed with the Securities and Exchange Commission on   April 13, 2004).*     10.3       True Temper Corporation   2004 Equity Incentive Plan, dated as of March 15, 2004 (filed as   Exhibit 10.3 to True Temper Sports, Inc.’s Registration Statement   on Form S-4, as filed with the Securities and Exchange Commission on   April 13, 2004).*     10.4       Credit Agreement, dated   as of March 15, 2004, by and among True Temper Corporation, True Temper   Sports, Inc, the Lenders identified therein, Credit Suisse First Boston,   Antares Capital Corporation, Goldman Sachs Credit Partners L.P. and   Merrill Lynch Capital (filed as Exhibit 10.4 to True Temper   Sports, Inc.’s Registration Statement on Form S-4, as filed with   the Securities and Exchange Commission on April 13, 2004).*     10.5       Tax Sharing and   Administrative Services Agreement, dated as of March 15, 2004, by and   among True Temper Corporation, True Temper Sports, Inc., El Cajon   Equipment Corporation and True Temper Sports-PRC Holdings, Inc. (filed   as Exhibit 10.5 to True Temper Sports, Inc.’s Registration   Statement on Form S-4, as filed with the Securities and Exchange   Commission on April 13, 2004).*     10.6       Employment Agreement,   dated as of January 30, 2004, by and between True Temper   Sports, Inc. and Scott C. Hennessy (filed as Exhibit 10.6 to   True Temper Sports, Inc.’s Registration Statement on Form S-4, as   filed with the Securities and Exchange Commission on April 13, 2004).*    75         10.7       First Amendment, dated as of September 24,   2004, to the Credit Agreement, dated as of March 15, 2004, by and among   True Temper Corporation, True Temper Sports, Inc, the Lenders identified   therein, Credit Suisse First Boston, Antares Capital Corporation, Goldman   Sachs Credit Partners L.P. and Merrill Lynch Capital (filed as   Exhibit 10.1 to True Temper Sports, Inc.’s report on Form 8-K,   as filed with the Securities and Exchange Commission on September 30, 2004).*     10.8       Amended and Restated Credit Agreement dated as of   March 27, 2006, (amending and restating the Credit Agreement dated as of   March 15, 2004, by and among True Temper Corporation, True Temper   Sports, Inc, the Lenders identified therein, Credit Suisse First Boston,   Antares Capital Corporation, Goldman Sachs Credit Partners L.P. and Merrill   Lynch Capital).**     12.1       Computation of Ratio of   Earnings To Fixed Charges.**     31.1       Certification pursuant   to Section 302 of the Sarbanes-Oxley Act of 2002.**     31.2       Certification pursuant   to Section 302 of the Sarbanes-Oxley Act of 2002.**     32.1       Certification pursuant   to Section 906 of the Sarbanes-Oxley Act of 2002.**     32.2       Certification pursuant   to Section 906 of the Sarbanes-Oxley Act of 2002.**     *                    Incorporated by reference **             Filed herewith 76        EX-10.8 2 a06-2147_1ex10d8.htm MATERIAL CONTRACTS       Exhibit 10.8   EXECUTION COPY       AMENDED AND RESTATED CREDIT AGREEMENT   dated as of March 27, 2006, (amending and restating the Credit Agreement dated as of March 15, 2004)   among   TRUE TEMPER CORPORATION,   TRUE TEMPER SPORTS, INC., as Borrower   THE LENDERS PARTY HERETO   and   CREDIT SUISSE,  as Administrative Agent      CREDIT SUISSE, as Sole Bookrunner and Sole Lead Arranger   ANTARES CAPITAL CORPORATION, as Syndication Agent   GOLDMAN SACHS CREDIT PARTNERS L.P. and MERRILL LYNCH CAPITAL, a division of Merrill Lynch Business Financial Services Inc., as Co-Documentation Agents                   TABLE OF CONTENTS             Page                   ARTICLE I   DEFINITIONS   1     SECTION 1.01.   Defined Terms   1     SECTION 1.02.   Terms Generally   31     SECTION 1.03.   Classification of Loans   and Borrowings   32     SECTION 1.04.   Pro Forma Calculations   32                   ARTICLE II   THE   CREDITS   32     SECTION 2.01.   Commitments   32     SECTION 2.02.   Loans   33     SECTION 2.03.   Borrowing Procedure   34     SECTION 2.04.   Repayment of Loans;   Evidence of Debt   35     SECTION 2.05.   Fees   36     SECTION 2.06.   Interest on Loans   37     SECTION 2.07.   Default Interest   37     SECTION 2.08.   Alternate Rate of   Interest   37     SECTION 2.09.   Termination and   Reduction of Commitments   38     SECTION 2.10.   Conversion and   Continuation of Borrowings   38     SECTION 2.11.   Repayment of Term   Borrowings   40     SECTION 2.12.   Prepayment   41     SECTION 2.13.   Mandatory Prepayments   41     SECTION 2.14.   Reserve Requirements;   Change in Circumstances   43     SECTION 2.15.   Change in Legality   44     SECTION 2.16.   Indemnity   45     SECTION 2.17.   Pro Rata Treatment   45     SECTION 2.18.   Sharing of Setoffs   46     SECTION 2.19.   Payments   46     SECTION 2.20.   Taxes   47     SECTION 2.21.   Assignment of   Commitments Under Certain Circumstances; Duty to Mitigate   49     SECTION 2.22.   Swingline Loans   50     SECTION 2.23.   Letters of Credit   51     SECTION 2.24.   Increase in Term Loan   Commitments   55                   ARTICLE III   REPRESENTATIONS   AND WARRANTIES   57     SECTION 3.01.   Organization; Powers   57     SECTION 3.02.   Authorization; No   Conflicts   58     SECTION 3.03.   Enforceability   58     SECTION 3.04.   Governmental Approvals   58     SECTION 3.05.   Financial Statements   58     SECTION 3.06.   No Material Adverse   Change   59     SECTION 3.07.   Title to Properties;   Possession Under Leases   59     SECTION 3.08.   Subsidiaries   59     SECTION 3.09.   Litigation; Compliance   with Laws   60     SECTION 3.10.   Agreements   60             i           SECTION 3.11.   Federal Reserve   Regulations   60     SECTION 3.12.   Investment Company Act   60     SECTION 3.13.   Use of Proceeds   60     SECTION 3.14.   Tax Returns   61     SECTION 3.15.   No Material   Misstatements; Acquisition Documentation   61     SECTION 3.16.   Employee Benefit Plans   61     SECTION 3.17.   Environmental Matters   62     SECTION 3.18.   Insurance   63     SECTION 3.19.   Security Documents   63     SECTION 3.20.   Location of Real   Property   64     SECTION 3.21.   Labor Matters   64     SECTION 3.22.   Intellectual Property   64     SECTION 3.23.   Solvency   64     SECTION 3.24.   Senior Debt   65                   ARTICLE IV   CONDITIONS   OF LENDING   65     SECTION 4.01.   All Credit Events   65     SECTION 4.02.   First Credit Event   66     SECTION 4.03.   Amendment Effective   Date   69     SECTION 4.04.   Funding Date   70                   ARTICLE V   AFFIRMATIVE   COVENANTS   71     SECTION 5.01.   Existence; Businesses   and Properties   71     SECTION 5.02.   Insurance   71     SECTION 5.03.   Obligations and Taxes   71     SECTION 5.04.   Financial Statements,   Reports, etc   72     SECTION 5.05.   Litigation and Other   Notices   73     SECTION 5.06.   Information Regarding   Collateral   74     SECTION 5.07.   Maintaining Records;   Access to Properties and Inspections   74     SECTION 5.08.   Use of Proceeds   75     SECTION 5.09.   Additional Collateral,   etc   75     SECTION 5.10.   Further Assurances   77     SECTION 5.11.   Interest Rate   Protection   77                   ARTICLE VI   NEGATIVE   COVENANTS   77     SECTION 6.01.   Indebtedness   78     SECTION 6.02.   Liens   79     SECTION 6.03.   Sale and Lease-Back   Transactions   81     SECTION 6.04.   Investments, Loans and   Advances   82     SECTION 6.05.   Mergers, Consolidations,   Sales of Assets and Acquisitions   83     SECTION 6.06.   Restricted Payments;   Restrictive Agreements   84     SECTION 6.07.   Transactions with   Affiliates   86     SECTION 6.08.   Business of Holdings,   the Borrower and Subsidiaries; Limitation on Hedging Agreements   86            ii           SECTION 6.09.   Other Indebtedness and   Agreements; Amendments to Acquisition Documentation   86     SECTION 6.10.   Capital Expenditures   87     SECTION 6.11.   Interest Coverage Ratio   87     SECTION 6.12.   Leverage Ratio   88     SECTION 6.13.   Fixed Charge Coverage   Ratio   88     SECTION 6.14.   Fiscal Year   88                   ARTICLE VII   EVENTS   OF DEFAULT   88     ARTICLE VIII   THE   AGENTS AND THE ARRANGER   92     ARTICLE IX   MISCELLANEOUS   94     SECTION 9.01.   Notices   94     SECTION 9.02.   Survival of Agreement   95     SECTION 9.03.   Binding Effect   95     SECTION 9.04.   Successors and Assigns   95     SECTION 9.05.   Expenses; Indemnity   99     SECTION 9.06.   Right of Setoff   100     SECTION 9.07.   Applicable Law   100     SECTION 9.08.   Waivers; Amendment   101     SECTION 9.09.   Interest Rate Limitation   102     SECTION 9.10.   Entire Agreement   102     SECTION 9.11.   WAIVER OF JURY TRIAL   102     SECTION 9.12.   Severability   102     SECTION 9.13.   Counterparts   103     SECTION 9.14.   Headings   103     SECTION 9.15.   Jurisdiction; Consent   to Service of Process   103     SECTION 9.16.   Confidentiality   104     SECTION 9.17.   Delivery of Lender   Addenda   104     SECTION 9.18.   Effect of Amendment and   Restatement of the Existing Credit Agreement   104                                 Exhibits and Schedules                           Exhibit A   Form of Administrative   Questionnaire         Exhibit B   Form of Affiliate   Subordination Agreement         Exhibit C   Form of Assignment and   Acceptance         Exhibit D   Form of Borrowing   Request         Exhibit E   Form of Guarantee and   Collateral Agreement         Exhibit F   Form of Lender Addendum         Exhibit G   Form of Mortgage (Owned   Real Property)         Exhibit H   Form of Perfection   Certificate         Exhibit I   Form of Revolving Note         Exhibit J   Form of Term Note                 iii           Exhibit K   Form of Exemption   Certificate         Exhibit L   Form of Supplement                   Schedule 1.01(b)   Mortgaged Properties         Schedule 1.01(c)   Subsidiary Guarantors         Schedule 2.01   Commitments         Schedule 3.08   Subsidiaries         Schedule 3.18   Insurance         Schedule 3.19(a)   UCC Filing Offices         Schedule 3.19(c)   Mortgage Filing Offices         Schedule 3.20   Owned and Leased Real   Property         Schedule 6.01   Existing Indebtedness         Schedule 6.02   Existing Liens         Schedule 6.04   Existing Investments                iv        AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 27, 2006, amending and restating the Credit Agreement dated as of March 15, 2004, among TRUE TEMPER CORPORATION, a Delaware corporation ( “Holdings”), TRUE TEMPER SPORTS, INC., a Delaware corporation (the “Borrower”), the LENDERS from time to time party hereto, CREDIT SUISSE (formerly known as Credit Suisse First Boston), as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”), CREDIT SUISSE (formerly known as Credit Suisse First Boston), as sole bookrunner and sole lead arranger (in such capacity, the “Arranger”), ANTARES CAPITAL CORPORATION, as syndication agent (in such capacity, the “Syndication Agent”), and GOLDMAN SACHS CREDIT PARTNERS L.P. and MERRILL LYNCH CAPITAL, a division of Merrill Lynch Business Financial Services Inc., as co-documentation agents (each, in such capacity, a “Documentation Agent”).   The parties hereto agree as follows:   ARTICLE I   Definitions    SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:   “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.   “Acquisition” shall mean the acquisition by TTS Holdings pursuant to the Purchase Agreement of all the Equity Interests in Holdings from the Sellers for an aggregate amount of $342,000,000 in cash (the “Acquisition Consideration”).   “Acquisition Consideration” shall have the meaning assigned to such term in the definition of “Acquisition”.   “Acquisition Documentation” shall mean shall mean, collectively, the Purchase Agreement and all schedules, exhibits, annexes and amendments thereto and all side letters and agreements affecting the terms thereof.   “Acquisition Transactions” shall mean, collectively, (a) the Acquisition, including the payment of the Acquisition Consideration, (b) the Equity Contribution, (c) the obtaining by the Borrower of the Facility provided for by this Agreement, (d) the issuance by the Borrower of the Subordinated Notes, (e) the repayment by the Borrower of all amounts outstanding under the Existing Credit Facility, (f) the redemption by the Borrower of all of its 10.875% Senior Subordinated Notes due 2008 and (g) the payment of fees and expenses incurred in connection with the foregoing, including a fee payable to the Sponsor.   “Additional Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Additional Term Loans hereunder as set forth on Schedule 2.01, as the same may be reduced or increased from time to time pursuant to          assignment by or to such Lender pursuant to Section 9.04. The aggregate amount of the Additional Term Loan Commitments is $18,000,000.   “Additional Term Loan Commitment Termination Date” shall have the meaning set forth in Section 2.09(a).   “Additional Term Loans” shall mean the Term Loans made by the Lenders to the Borrower on the Funding Date.   “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.   “Administrative Agent” shall have the meaning assigned to such term in the preamble.   “Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).   “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.   “Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that, for purposes of Section 6.07, the term “Affiliate” shall also include any person that directly or indirectly owns 10% or more of any class of Equity Interests of the person specified or that is an officer or director of the person specified.   “Affiliate Subordination Agreement” shall mean an Affiliate Subordination Agreement in the form of Exhibit B pursuant to which intercompany obligations and advances owed by any Loan Party are subordinated to the Obligations.   “Affirmation and Consent” means the Affirmation and Consent, dated as of the Amendment Effective Date, executed and delivered by Holdings and each Subsidiary Guarantor in form and substance satisfactory to the Administrative Agent.   “Agents” shall have the meaning assigned to such term in Article VIII.   “Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’ Revolving Credit Exposures.   “Agreement” shall mean, on any date, the Existing Credit Agreement, as amended and restated on the Amendment Effective Date and as the same may thereafter from time to time be further amended, supplemented, amended and restated or otherwise modified and in effect on such date.   2        “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.   “Amendment Agreement” shall mean the Amendment Agreement dated as of March 27, 2006, among Holdings, the Borrower and the Lenders party thereto.   “Amendment Effective Date” means the date this Amended and Restated Credit Agreement becomes effective pursuant to the Amendment Agreement.   “Amendment Fee Letter” shall mean the Fee Letter dated as of March 20, 2006, among the Borrower, Credit Suisse (formerly known as Credit Suisse First Boston) and Credit Suisse Securities (USA) LLC.   “Applicable Margin” shall mean, for any day, for each Type of Loan, the rate per annum set forth under the relevant column heading below based upon the Leverage Ratio as of the relevant date of determination:      Leverage Ratio       Eurodollar   Term Loans       ABR Term   Loans       Eurodollar Revolving Loans and   Swingline Loans       ABR Revolving Loans and   Swingline Loans         Category 1   Greater than 5.75 to 1.00       2.50   %   1.50   %   2.50   %   1.50   %     Category 2   Greater than 4.75 to 1.00   but less than or equal to   5.75 to 1.00       2.50   %   1.50   %   2.25   %   1.25   %     Category 3   Greater than 3.75 to 1.00   but less than or equal to   4.75 to 1.00       2.50   %   1.50   %   2.00   %   1.00   %     Category 4   Less than or equal to 3.75   to 1.00       2.50   %   1.50   %   1.75   %   0.75   %      ; provided, that, notwithstanding the foregoing, each Applicable Margin set forth above with respect to the Term Loans shall be increased by an additional 0.50% per annum at all times during the period from and including the Amendment Effective Date through and including the date of delivery to the Administrative Agent of the financial statements required by Section 5.04(b), with respect to the fiscal quarter ending October 1, 2006. Each change in the Applicable Margin resulting from a change in the Leverage Ratio shall be effective, with respect to all Loans, Commitments and Letters of Credit outstanding, upon delivery to the Administrative Agent of the financial statements and certificates required by Section 5.04(a) or (b) and   3        Section 5.04(c), respectively, indicating such change until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change. In addition, at any time during which the Borrower has failed to deliver the financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c), respectively, the Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin for so long as such failure to deliver such applicable financial statements and certificates shall continue.   “Arranger” shall have the meaning assigned to such term in the preamble.   “Asset Sale” shall mean the sale, lease, sale and leaseback, assignment (other than for security purposes), conveyance, transfer, issuance or other disposition (by way of merger, casualty, condemnation or otherwise) (any of the foregoing, a “Disposition”) by Holdings, the Borrower or any of the Subsidiaries to any person other than the Borrower or any Subsidiary Guarantor of (a) any Equity Interests of any of the Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of Holdings, the Borrower or any of the Subsidiaries, including Equity Interests of any person that is not a Subsidiary (other than (i) inventory, obsolete or worn out assets, assets that are no longer useful, scrap and Permitted Investments, in each case Disposed of in the ordinary course of business, (ii) the sale or discount by the Borrower or any Subsidiary, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction), (iii) the Disposition by any Subsidiary that is not a Loan Party of its assets that do not constitute Collateral in connection with a foreclosure by the applicable lenders with respect to any Indebtedness of such Subsidiary to the extent that such assets are collateral security for such Indebtedness, (iv) the licensing of intellectual property in the ordinary course of business, (v) the settlement, release or surrender of tort or other litigation claims, (vi) Dispositions between Subsidiaries that are not Subsidiary Guarantors, (vii) Permitted Acquisitions or other Investments by the Borrower or any Subsidiary that are expressly permitted by Section 6.04 and that do not involve a Disposition of any assets of Holdings, the Borrower or any of the Subsidiaries to any person other than the Borrower or any Subsidiary Guarantor and (viii) Permitted Asset Swaps); provided that any Disposition or series of related Dispositions described in clause (b) above (but not excluded in clauses (i) through (viii) above) having a value not in excess of $250,000 shall be deemed not to be an “Asset Sale” for purposes of this Agreement.   “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any person whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit C or such other form as shall be approved by the Administrative Agent.   “Benefit Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Tax Code or Section 307 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.   4        “Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.   “Borrower” shall have the meaning assigned to such term in the preamble.   “Borrowing” shall mean (a) Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.   “Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit D, or such other form as shall be approved by the Administrative Agent.   “Breakage Event” shall have the meaning assigned to such term in Section 2.16.   “Business Day” shall mean any day other than a Saturday, Sunday or day on which commercial banks in New York City are authorized or required by law to close; provided, however, that when used in connection with a Eurodollar Loan (including with respect to all notices and determinations in connection therewith and any payments of principal, interest or other amounts thereon), the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.   “Capital Expenditures” shall mean, for any period, with respect to any person, (a) the additions to property, plant and equipment and other capital expenditures of such person and its consolidated subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of such person for such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by such person and its consolidated subsidiaries during such period, but excluding in each case any such expenditure made (i) in accordance with the terms of this Agreement to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation, (ii) with the proceeds from the sale or other disposition or trade-in or exchange of assets to the extent utilized to purchase functionally equivalent assets, (iii) with the proceeds of a substantially contemporaneous equity contribution from Holdings (other than any Cure Securities) and (iv) consisting of the Proposed Domestic Acquisition.   “Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.   “Change in Control” shall mean (a) if at any time prior to a Qualified IPO, the Permitted Holders shall fail to own directly or indirectly, beneficially and of record, Equity Interests representing more than 50% of the aggregate ordinary voting power and aggregate equity value represented by the issued and outstanding Equity Interests in Holdings; (b) if after a Qualified   5        IPO, any “person” or “group” (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date hereof) other than the Permitted Holders shall own directly or indirectly, beneficially or of record, Equity Interests representing either (i) more than 30% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in Holdings or (ii) a greater percentage of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in Holdings then held, directly or indirectly, beneficially and of record, by the Permitted Holders; (c) if a majority of the seats (other than vacant seats) on the board of directors of Holdings shall at any time be occupied by persons who are not Continuing Directors; (d) if Holdings shall at any time fail to own directly or indirectly, beneficially and of record, 100% of each class of issued and outstanding Equity Interests in the Borrower free and clear of all Liens (other than Liens expressly permitted by clauses (b) and (d) of Section 6.02); or (e) if any change of control (or similar event, however denominated) shall occur under the Subordinated Note Documents.   “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14, by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date.   “Charges” shall have the meaning assigned to such term in Section 9.09.   “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, Term Loan Commitment or Swingline Commitment.   “Closing Date” shall mean March 15, 2004.   “Collateral” shall mean all property and assets of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.   “Collateral Agent” shall have the meaning assigned to such term in the preamble.   “Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.   “Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).   “Commitment Fee Rate” shall mean a rate per annum equal to ½ of 1%.   “Commitment Letter” shall mean the Commitment Letter dated as of January 30, 2004, among TTS Holdings and Credit Suisse (formerly known as Credit Suisse First Boston).   6        “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, including any increased expense or depreciation or amortization resulting from purchase accounting adjustments or the write-up of inventory in connection with acquisitions and amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness, (iv) any noncash charges (other than the write-down of accounts receivable or inventory held for sale (other than in connection with the Acquisition or other Permitted Acquisitions consummated after the Closing Date)) for such period, (v) any restructuring costs for such period that are incurred in connection with the Acquisition or other Permitted Acquisitions consummated after the Closing Date, (vi) any non-recurring or extraordinary fees, charges or other expenses for such period, (vii) bonus and retention payments, including earn-outs, stock appreciation rights, non-compete payments, phantom stock plans and similar payments, made or incurred in connection with the Acquisition or other Permitted Acquisitions consummated after the Closing Date and the financing thereof, (viii) management fees paid during such period, (ix) start-up and related costs associated with the Chinese operations not to exceed the lesser of $1,000,000 and the actual amount of such start-up and related costs in the fiscal years ending December 31, 2004 and December 31, 2005 (provided that to the extent that all or any portion of the income of any person is excluded from Consolidated Net Income pursuant to the definition thereof for all or any portion of such period any amounts set forth in the preceding clauses (i) through (ix) that are attributable to such person shall not be included for purposes of this definition for such period or portion thereof), (x) if and when incurred, the amount of integration costs (not to exceed $3,000,000 in the aggregate) associated with the Proposed Domestic Acquisition incurred 12 months prior to or after the closing of that acquisition, (xi) for fiscal years 2006, 2007 and 2008, the amount of start-up and transition costs (not to exceed $1,500,000 in any single fiscal year or $3,000,000 in the aggregate for all such fiscal years) associated with the Borrower’s establishment and expansion of its foreign operations with respect to the Foreign Target, (xii) for fiscal years 2006, 2007 and 2008, the amount of transition and shut-down costs (including closure (in whole or in part) of facilities, relocation of assets, severance costs and related amounts) associated with the Borrower’s establishment and expansion of its foreign operations with respect to the Foreign Target, not to exceed $1,500,000 in any single fiscal year or $3,000,000 in the aggregate for all such fiscal years and (xiii) for purposes of determining compliance with the financial covenants in Sections 6.11, 6.12 and 6.13, the Cure Amount received by the Borrower for such period and permitted to be included in Consolidated EBITDA pursuant to (and subject to the provisions in) Section 7.01, and minus (b) without duplication, to the extent included in the statement of such Consolidated Net Income for such period, (i) all cash payments made during such period on account of reserves, restructuring charges and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(iv) above in a previous period and (ii) all non-cash items of income for such period, all determined on a consolidated basis in accordance with GAAP; provided that for purposes of calculating Consolidated EBITDA (other than for purposes of the determination of Excess Cash Flow) for any period (A) the Consolidated EBITDA of any Acquired Entity acquired by the Borrower or any Subsidiary pursuant to a Permitted Acquisition during such period shall be included on a pro forma basis for such period (assuming the consummation of such acquisition and the incurrence or assumption   7        of any Indebtedness in connection therewith occurred as of the first day of such period) and (B) the Consolidated EBITDA of any person or line of business Disposed of by the Borrower or any Subsidiary during such period for shall be excluded for such period (assuming the consummation of such sale or other disposition and the repayment of any Indebtedness in connection therewith occurred as of the first day of such period).   “Consolidated Fixed Charges” shall mean, for any period, without duplication, the sum of (a) Consolidated Interest Expense for such period, plus (b) the aggregate amount of scheduled principal payments (whether or not made) during such period in respect of long term Indebtedness (including Capital Lease Obligations and Synthetic Lease Obligations) of the Borrower and the Subsidiaries (other than (i) payments made by the Borrower or any Subsidiary to the Borrower or a Subsidiary and (ii) amounts payable in respect of repayment or prepayment of principal of Indebtedness (not to exceed $5,000,000) incurred by the Foreign Target from a lender that is organized or doing business in the jurisdiction in which the Foreign Target is located or a province thereof), plus (c) Capital Expenditures for such period (other than Foreign Target Capital Expenditures and Capital Expenditures in connection with restructuring and start-up costs relating to the Proposed Domestic Acquisition, the Proposed Foreign Acquisition and other Permitted Acquisitions consummated after the Closing Date), plus (d) the aggregate amount of income taxes paid in cash by the Borrower and the Subsidiaries during such period.   “Consolidated Interest Expense” shall mean, for any period, the cash interest expense (including imputed interest expense in respect of Capital Lease Obligations and Synthetic Lease Obligations) of the Borrower and the Subsidiaries for such period (including all commissions, discounts and other fees and charges owed by the Borrower and the Subsidiaries with respect to letters of credit and bankers’ acceptance financing), net of interest income, in each case determined on a consolidated basis in accordance with GAAP. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by the Borrower or any Subsidiary with respect to interest rate Hedging Agreements (excluding (i) cash costs paid to unwind a Hedging Agreement existing on the Closing Date and (ii) interest expense attributable to up to $5,000,000 of outstanding Indebtedness incurred by the Foreign Target from a lender that is organized or doing business in a jurisdiction in which the Foreign Target is located or a province thereof).   “Consolidated Net Income” shall mean, for any period, the net income or loss of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions (including a distribution in respect of intercompany Indebtedness) by such Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary, (b) the income or loss of any person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary or the date that such person’s assets are acquired by the Borrower or any Subsidiary, (c) the income of any person (other than a Subsidiary) in which any other person (other than the Borrower or a Subsidiary or any director holding qualifying shares in accordance with applicable law) has an interest, except to the extent of the amount of dividends or other distributions actually paid to the Borrower or a Subsidiary by such person during such period, and (d) any extraordinary gains or losses.   8        “Continuing Directors” shall mean, at any time of determination, any member of the board of directors of Holdings who (a) was a member of such board of directors on the Amendment Effective Date, (b) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election, (c) prior to the consummation of a Qualified IPO, was nominated by the Sponsors pursuant to the Stockholders Agreement or (d) following the consummation of a Qualified IPO, was nominated for election or elected to such board of directors by the Sponsors at such time when the Permitted Holders are the beneficial owners, directly or indirectly, of Equity Interests representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in Holdings.   “Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.   “Credit Event” shall have the meaning assigned to such term in Section 4.01.   “Cure Amount” shall have the meaning assigned to such term in Section 7.01.   “Cure Right” shall have the meaning assigned to such term in Section 7.01.   “Cure Securities” shall mean equity securities of Holdings (the net proceeds of which are contributed to the common equity of the Borrower) having no mandatory redemption, repurchase, repayment or similar requirements prior to the date which occurs six months after the later of the Revolving Credit Maturity Date, the Term Loan Maturity Date or the Incremental Term Loan Maturity Date, and upon which all dividends or distributions shall be payable in additional shares of such security only, and which are not convertible or exchangeable into any other instrument (other than common equity of Holdings) and are not guaranteed or secured.   “Current Assets” shall mean, at any time, the consolidated current assets (other than cash and Permitted Investments) of the Borrower and the Subsidiaries.   “Current Liabilities” shall mean, at any time, the consolidated current liabilities of the Borrower and the Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness and (b) outstanding Revolving Loans and Swingline Loans.   “Default” shall mean any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would constitute an Event of Default.   “Defaulting Lender” shall mean any Revolving Lender that has either (a) defaulted in its obligation to make a Revolving Loan or to fund its participation in a Letter of Credit or Swingline Loan required to be made or funded by it hereunder, (b) notified the Administrative Agent or the Borrower in writing that it does not intend to satisfy any such obligation described in clause (a) or (c) become insolvent or been taken over by any regulatory authority or agency.   9        “Disposition” shall have the meaning assigned to such term in the definition of “Asset Sale” and the term “Dispose” shall have a correlative meaning.   “Documentation Agent” shall have the meaning assigned to such term in the preamble.   “dollars” or “$” shall mean lawful money of the United States of America.   “Domestic Subsidiaries” shall mean all Subsidiaries incorporated, formed or organized under the laws of the United States of America, any State thereof or the District of Columbia.   “Environmental Laws” shall mean all former, current and future Federal, state, local and foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments, directives, orders (including consent orders), and agreements in each case, relating to protection of the environment, natural resources, human health and safety or the presence, Release of, threatened Release, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.   “Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.   “Environmental Permit” shall mean any Permit under Environmental Law.   “Equity Interests” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any person, or any obligations convertible into or exchangeable for, or giving any person a right, option or warrant to acquire, such equity interests or such convertible or exchangeable obligations.   “Equity Issuance” shall mean any issuance or sale by Holdings or the Borrower of any Equity Interests of Holdings or the Borrower, as applicable, or the receipt by Holdings or the Borrower of any capital contribution, as applicable, except in each case for (a) in the case of the Borrower, any issuance or sale to, or any receipt of any capital contribution from, Holdings, (b) any issuance of directors’ qualifying shares, (c) sales or issuances of common stock of Holdings to management or employees of Holdings, the Borrower or any Subsidiary under any employee stock option or stock purchase plan or employee benefit plan in existence from time to time in the ordinary course of business, (d) any issuance or sale by, or capital contribution in, Holdings or the Borrower in a transaction not constituting a public offering so long as the Net Cash Proceeds thereof are (i) on or before the date of receipt thereof, designated by Holdings or the Borrower, as the case may be, pursuant to a notice to the Administrative Agent (specifying the amount and designated use thereof) for use to fund a Permitted Acquisition in accordance   10        with the terms hereof and (ii) within 30 days of the receipt thereof, applied to fund such Permitted Acquisition in accordance with the terms hereof; provided that in the case of any failure to satisfy the requirement in clause (ii) such Net Cash Proceeds shall be deemed to have been received for purposes of Section 2.13 when the 30-day period referred to therein expires and (e) Cure Securities.   “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.   “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Tax Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Tax Code, is treated as a single employer under Section 414 of the Tax Code.   “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Benefit Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Benefit Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Tax Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Tax Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Benefit Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Benefit Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Benefit Plan or Multiemployer Plan; (e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Benefit Plan or Plans or to appoint a trustee to administer any Benefit Plan; (f) the adoption of any amendment to a Benefit Plan that would require the provision of security pursuant to Section 401(a)(29) of the Tax Code or Section 307 of ERISA; (g) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence of a “prohibited transaction” with respect to which the Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Tax Code) or with respect to which the Borrower or any such Subsidiary could otherwise be liable; or (i) any other event or condition with respect to a Benefit Plan or Multiemployer Plan that could result in liability of the Borrower or any Subsidiary.   “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.   “Event of Default” shall have the meaning assigned to such term in Article VII.   “Excess Cash Flow” shall mean, for any fiscal year of the Borrower, the excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such fiscal year (calculated without giving effect to the last proviso set forth in the definition of Consolidated EBITDA) and (ii) the   11        decrease, if any, in Current Assets minus Current Liabilities (other than for the Foreign Target) from the beginning to the end of such fiscal year over (b) the sum, without duplication, of (i) the amount of any Taxes payable in cash by Holdings and the Subsidiaries with respect to such fiscal year, (ii) Consolidated Interest Expense (including for Indebtedness incurred in connection with the Proposed Domestic Acquisition and the Proposed Foreign Acquisition) for such fiscal year payable in cash, (iii) the aggregate amount paid in cash in respect of Capital Expenditures (including in connection with the Proposed Domestic Acquisition and for the Proposed Foreign Acquisition) and Permitted Acquisitions in accordance with Sections 6.10 and 6.04, respectively, during such fiscal year (and including in such fiscal year, in the case of Capital Expenditures with respect to which the obligation to make payment has accrued in the last fiscal quarter of such fiscal year but such obligation is not payable in cash until the immediately following fiscal quarter, the amount to be paid in cash in such following fiscal quarter; provided that such amount, when paid in such following fiscal quarter, shall not be included in this clause (iii)), in each case, except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated EBITDA, (iv) permanent repayments of Indebtedness (other than mandatory prepayments of Loans under Section 2.13) made by the Borrower and the Subsidiaries during such fiscal year, but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Indebtedness, (v) the amount paid in cash by Holdings, the Borrower and the Subsidiaries during such fiscal year as a purchase price adjustment in connection with the Acquisition pursuant to the terms of the Purchase Agreement (as existing on the Closing Date), (vi) the amount paid in cash by Holdings and the Subsidiaries during such fiscal year as a purchase price adjustment pursuant to the Purchase Agreement, (vii) the increase, if any, in Current Assets minus Current Liabilities (in each case, other than for the Foreign Target) from the beginning to the end of such fiscal year and (viii) the aggregate amount of Investments made by the Borrower and Subsidiaries in the Foreign Target.   “Excluded Foreign Subsidiaries” shall mean, at any time, any Foreign Subsidiary that is (or is treated as) for United States federal income tax purposes either (a) a corporation or (b) a pass-through entity owned directly or indirectly by another Foreign Subsidiary that is (or is treated as) a corporation.   “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income as a result of a present or former connection between such recipient and the jurisdiction imposing such tax (or any political subdivision thereof), other than any such connection arising solely from such recipient having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document and (b) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.20(d), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.20(a).   12        “Exempted Assets Sales” means a Disposition of assets (whether real or personal, and whether tangible or intangible), within nine months (unless otherwise extended for no more than three months by the Administrative Agent in its sole discretion) following their acquisition by the Borrower or a Subsidiary in the Proposed Domestic Acquisition or the acquisition of the assets of, or Equity Interests of (resulting in a Subsidiary), a person in connection with the Proposed Foreign Acquisition (but in each case only as to assets actually acquired in the Proposed Domestic Acquisition or such an acquisition in connection with the Proposed Foreign Acquisition).   “Existing Credit Agreement” means the Credit Agreement, dated as of March 15, 2004, among Holdings, the Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the Arranger, the Syndication Agent and the Documentation Agent as amended or modified and in effect immediately prior to the Amendment Effective Date.   “Facility” shall mean each of (a) the Term Loan Commitments and the Term Loans made thereunder (the “Term Loan Facility”), and (b) the Revolving Credit Commitments and the extensions of credit made thereunder (the “Revolving Credit Facility”).   “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.   “Fee Letters” shall mean, collectively, the Initial Fee Letter and the Amendment Fee Letter.   “Fee Trigger Date” shall mean the day that is 61 days following the Amendment Effective Date   “Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the L/C Participation Fees and the Issuing Bank Fees.   “Financial Officer” of any person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such person.   “Fixed Charge Coverage Ratio” shall mean, on the last day of any fiscal quarter, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on and prior to such date, taken as one accounting period, to (b) Consolidated Fixed Charges for the period of four consecutive fiscal quarters most recently ended on and prior to such date, taken as one accounting period.   “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.   13        “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.   “Foreign Target” means, collectively, any direct or indirect Subsidiaries of the Borrower that are organized or existing under the laws of a foreign jurisdiction previously identified in writing to the Administrative Agent or a province thereof or a majority of the value (as determined in good faith by the Borrower) of whose properties or assets are located in such jurisdiction or a province thereof.   “Foreign Target Capital Expenditures” shall mean, for any period, (a) expenditures made with respect to the Foreign Target outside of the ordinary course of business (including the acquisition of the Equity Interests (resulting in a Subsidiary) of, all or substantially all of the assets of, a line of business of, or a business unit or division of, any person in connection with the Proposed Foreign Acquisition, and the acquisition of any other fixed or capital assets acquired outside of the ordinary course of business from any person in connection with the Proposed Foreign Acquisition) and (b) expenditures made in the ordinary course of business to restore, replace or rebuild property of the Foreign Target to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property.   “Funded Debt” shall mean as of the last day of any fiscal quarter, Total Debt at such time less the amount of cash and Permitted Investments of the Borrower and the Subsidiary Guarantors at such time in an aggregate amount not to exceed $7,500,000.   “Funding Date” shall mean the date on which the Borrowing of Term Loans (other than Incremental Term Loans) is made following the Amendment Effective Date.   “GAAP” shall mean generally accepted accounting principles in the United States.   “Governmental Authority” shall mean the government of the United States of America or any other nation, any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.   “Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).   “Guarantee” of or by any person (the “guarantor”) shall mean any obligation, contingent or otherwise, of (a) the guarantor or (b) another person (including any bank under a letter of credit) to induce the creation of which the guarantor has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation, contingent or otherwise, of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay   14        such Indebtedness or other obligation, (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation or (v) to otherwise assure or hold harmless the owner of such Indebtedness or other obligation against loss in respect thereof; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.   “Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement in the form of Exhibit E, to be executed and delivered by Holdings, the Borrower and each Subsidiary Guarantor.   “Guarantors” shall mean Holdings and the Subsidiary Guarantors.   “Hazardous Materials” shall mean any petroleum (including crude oil or fraction thereof) or petroleum products or byproducts, or any pollutant, contaminant, chemical, compound, constituent, or hazardous, toxic or other substances, materials or wastes defined, or regulated as such by, or pursuant to, any Environmental Law, or requires removal, remediation or reporting under any Environmental Law, including asbestos, or asbestos containing material, radon or other radioactive material, polychlorinated biphenyls and urea formaldehyde insulation.   “Hedging Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, fuel or other commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, however, that no phantom stock or similar plan providing for payments and on account of services provided by current or former directors, officers, employees or consultants of Holdings, the Borrower or any Subsidiary shall be a Hedging Agreement.   “Holdings” shall have the meaning assigned to such term in the preamble.   “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such person under conditional sale or other title retention agreements relating to property or assets acquired by such person, (d) all obligations of such person in respect of the deferred purchase price of property or services (other than current trade accounts payable incurred in the ordinary course of business), (e) all obligations of such person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Equity Interests in such person, (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such person of Indebtedness of others, (h) all Capital Lease Obligations or Synthetic Lease Obligations of such person, (i) all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such person in respect of bankers’ acceptances. The Indebtedness of any person shall include the Indebtedness of any other person (including any partnership in which such person is a general partner) to the extent such person is liable therefor as a result of such person’s ownership interest   15        in, or other relationship with, such other person, except to the extent the terms of such Indebtedness provide (including by a non-recourse nature) that such person is not liable therefor.   “Indemnified Taxes” shall mean Taxes other than Excluded Taxes and Other Taxes.   “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).   “Information” shall have the meaning assigned to such term in Section 9.16.   “Incremental Debt Amount” shall mean, at any time, the amount (if any) equal to (a) $15,000,000 less (b) an amount equal to the aggregate amount of all Incremental Term Loan Commitments established prior to such time pursuant to Section 2.24.   “Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.   “Incremental Term Loan” shall mean an incremental term loan made by an Incremental Term Lender to the Borrower pursuant to clause (b) of Section 2.01. Incremental Term Loans may be made in the form of additional Term Loans or, to the extent provided for in the relevant Incremental Term Loan Assumption Agreement and permitted by Section 2.24, Other Term Loans.   “Incremental Term Loan Assumption Agreement” shall mean an Incremental Term Loan Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Term Lenders.   “Incremental Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Incremental Term Loans hereunder as set forth on the Incremental Term Loan Assumption Agreement delivered by such Lender or as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Incremental Term Loan Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignment by or to such Lender pursuant to Section 9.04.   “Incremental Term Loan Maturity Date” shall mean the final maturity date of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement, subject to the limitations thereon set forth in Section 2.24.   “Incremental Term Loan Repayment Dates” shall mean the dates scheduled for the repayment of principal of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement.   “Initial Fee Letter” shall mean the Fee Letter dated as of January 30, 2004, among TTS Holdings and Credit Suisse (formerly known as Credit Suisse First Boston).   “Intellectual Property Collateral” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.   16        “Intellectual Property Security Agreement” shall mean all Intellectual Property Security Agreements to be executed and delivered by the Loan Parties, each substantially in the applicable form required by the Guarantee and Collateral Agreement.   “Interest Coverage Ratio” shall mean, on the last day of any fiscal quarter, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on and prior to such date, taken as one accounting period, to (b) Consolidated Interest Expense for the period of four consecutive fiscal quarters ended on and prior to such date, taken as one accounting period.   “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.   “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months thereafter if, at the time of the relevant Borrowing, an interest period of such duration is available to all Lenders participating therein), as the Borrower may elect; provided, however, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.   “Investments” shall have the meaning assigned to such term in Section 6.04.   “Issuing Bank” shall mean, as the context may require, (a) Credit Suisse (formerly known as Credit Suisse First Boston), in its capacity as the issuer of Letters of Credit hereunder, and (b) any other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit issued by such Lender. The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.   “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).   “Jineng” shall mean Jineng Composite Materials and Products (Guangzhou) Company Ltd., a Subsidiary organized under the laws of China.   17        “L/C Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit pursuant to Section 2.23.   “L/C Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a Letter of Credit.   “L/C Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all Letters of Credit at such time and (b) the aggregate amount of all L/C Disbursements that have not been reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate L/C Exposure at such time.   “L/C Fee Payment Date” shall have the meaning assigned to such term in Section 2.05(c).   “L/C Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).   “Lender Addendum” shall mean, with respect to any initial Lender, a Lender Addendum in the form of Exhibit F, or such other form as may be supplied by the Administrative Agent, to be executed and delivered by such Lender on the Closing Date.   “Lenders” shall mean (a) the persons that deliver a Lender Addendum (other than any such person that has ceased to be a party hereto pursuant to an Assignment and Acceptance), (b) any person that has become a party hereto pursuant to an Assignment and Acceptance and (c) any person that has become a party hereto pursuant to an Incremental Term Loan Assumption Agreement. Unless the context otherwise requires, the term “Lenders” shall include the Swingline Lender.   “Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.23.   “Leverage Ratio” shall mean, on the last day of any fiscal quarter, the ratio of (a) Funded Debt on such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on and prior to such date, taken as one accounting period.   “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.   18        “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.   “Loan Documents” shall mean this Agreement, the Supplement and the Security Documents.   “Loan Parties” shall mean Holdings, the Borrower and each Subsidiary (other than a Foreign Subsidiary) that is or becomes a party to a Loan Document.   “Loans” shall mean the Revolving Loans, the Term Loans and the Swingline Loans.   “Majority Facility Lenders” shall mean, with respect to any Facility, the holders (other than Defaulting Lenders) of a majority of the aggregate unpaid principal amount of the Term Loans or the Aggregate Revolving Credit Exposure, as the case may be, outstanding under such Facility (or, in the case of the Revolving Credit Facility, prior to the termination of the Revolving Credit Commitments, the holders of a majority of the Total Revolving Credit Commitment).   “Margin Stock” shall have the meaning assigned to such term in Regulation U.   “Material Adverse Effect” shall mean a material adverse condition or material adverse change in or materially affecting (a) the business, assets, liabilities, operations or condition (financial or otherwise) of Holdings, the Borrower and the Subsidiaries, taken as a whole, or (b) the validity or enforceability of any of the Loan Documents or the material rights and remedies of the Arranger, the Administrative Agent, the Collateral Agent or the Secured Parties thereunder.   “Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of Holdings, the Borrower and the Subsidiaries in an aggregate principal amount exceeding $5,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Holdings, the Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings, the Borrower for such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.   “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.   “Moody’s” shall mean Moody’s Investors Service, Inc.   “Mortgaged Properties” shall mean, initially, each parcel of real property and the improvements thereto owned or leased by a Loan Party and specified on Schedule 1.01(b), and shall include each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.09 or 5.10.   19        “Mortgages” shall mean the fee or leasehold mortgages or deeds of trust, assignments of leases and rents and other security documents granting a Lien on any Mortgaged Property to secure the Obligations, if such Mortgaged Property is owned, in the form of Exhibit G or, if such Mortgaged Property is leased, in form reasonably satisfactory to the Collateral Agent, as the case may be, with such changes as shall be advisable under the law of the jurisdiction in which such Mortgage is to be recorded and as are reasonably satisfactory to the Collateral Agent, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.   “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate may have any liability.   “Net Cash Proceeds” shall mean (a) with respect to any Asset Sale or Recovery Event, the proceeds thereof in the form of cash and Permitted Investments (including any such proceeds subsequently received (as and when received) in respect of noncash consideration initially received), net of (i) selling expenses (including reasonable and customary broker’s or investment banker’s fees or commissions, legal fees, transfer and similar taxes incurred by the Borrower and the Subsidiaries in connection therewith and the Borrower’s good faith estimate of income taxes paid or payable in connection with such sale, after taking into account any available tax credits or deductions and any tax sharing arrangements), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such asset); provided, however, that, if (x) the Borrower shall deliver a certificate of a Financial Officer of the Borrower to the Administrative Agent within three Business Days of the time of receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in assets of a kind then used or usable in the business of the Borrower and the Subsidiaries within 365 days of receipt of such proceeds and (y) no Event of Default shall have occurred and be continuing at the time of such certificate, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such 365-day period, at which time such proceeds shall be deemed to be Net Cash Proceeds; provided further, however, that, if (A) such proceeds shall result from an Asset Sale or Recovery Event to the extent involving assets, rights or other property of a Subsidiary that is not a Loan Party, (B) the terms of any Indebtedness of such Subsidiary require that such proceeds be applied to repay such Indebtedness, (C) the Borrower shall deliver a certificate of a Financial Officer to the Administrative Agent within three Business Days of the time of receipt thereof setting forth the Borrower’s intent to use such proceeds to repay such Indebtedness of such Subsidiary to the extent required thereby and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, within 365 days of receipt of such proceeds and (D) no Event of Default shall have occurred and be continuing at the time of such certificate, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such 365-day period, at which time such proceeds shall be deemed to be Net Cash Proceeds; and (b) with respect to any issuance or disposition of Indebtedness or any Equity Issuance, the cash proceeds thereof, net of all taxes and reasonable and customary fees (including   20        legal fees), commissions, underwriting discounts, costs and other expenses incurred by the Borrower and the Subsidiaries in connection therewith.   “Obligations” shall mean all obligations defined as “Obligations” in the Guarantee and Collateral Agreement and the other Security Documents.   “Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including interest, fines, penalties and additions to tax) arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.   “Other Term Loans” shall have the meaning assigned to such term in Section 2.24(a).   “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.   “Perfection Certificate” shall mean the Pre-Closing UCC Diligence Certificate substantially in the form of Exhibit H or any other form approved by the Collateral Agent.   “Permits” shall mean any and all material franchises, licenses, leases, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, qualifications, easements, rights of way, Liens and other rights, privileges and approvals required under any Requirement of Law.   “Permitted Acquisition” shall mean (a) the Proposed Domestic Acquisition and the acquisition of the assets of, or Equity Interests of (resulting in a Subsidiary), a person in connection with the Proposed Foreign Acquisition and (b) any other acquisition by the Borrower or any Subsidiary of all or substantially all the assets of a person or line of business of such person, or all of the Equity Interests of a person (referred to herein as the “Acquired Entity”); provided that (i) the Acquired Entity shall be a going concern and shall be in a Permitted Business; (ii) at the time of such transaction (A) both before and after giving effect thereto, no Event of Default or Default shall have occurred and be continuing; (B) the Borrower would be in compliance with the covenants set forth in Sections 6.11 and 6.13 and if the aggregate consideration paid in connection with such acquisition and any related acquisition (including any Indebtedness of the Acquired Entity that is assumed by the Borrower or any Subsidiary following such acquisition) is (x) $5,000,000 or more, then the Leverage Ratio would be at least 0.25 to 1.0 less than the maximum Leverage Ratio permitted under Section 6.12 at such time or (y) less than $5,000,000, then the Borrower would be in compliance with the covenant set forth in Section 6.12, in each case described in this clause (B) as of the most recently completed period ending prior to such transaction for which the financial statements and certificates required by Section 5.04(a) or 5.04(b) were required to be delivered or for which comparable financial statements have been filed with or furnished to the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate (including any other transaction described in this definition occurring after such period) as if such transaction (and the occurrence or assumption of any Indebtedness in connection therewith) had occurred as of the first day of such period; and (C) in the case of other than the Proposed Foreign Acquisition, after   21        giving effect to such acquisition, there must be at least $5,000,000 of unused and available Revolving Credit Commitments; and (iii) the Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Sections 5.09 and 5.10 and the Security Documents.   “Permitted Asset Swap” shall mean any transfer of properties or assets by the Borrower or any of the Subsidiaries in which at least 90% of the consideration received by the transferor consists of properties or assets (other than cash or Permitted Investments) useful in the business of the Borrower or the Subsidiaries; provided that (a) the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of the property or assets being transferred by the Borrower or such Subsidiary is not greater than the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of the property or assets received by the Borrower or such Subsidiary in such transfer and (b) the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of all property or assets transferred by the Borrower or any of the Subsidiaries in such transfer, together with the aggregate fair market value of all other property or assets transferred in prior Permitted Asset Swaps in such fiscal year, shall not exceed $2,000,000 in any fiscal year.   “Permitted Business” shall mean any business conducted or proposed to be conducted by the Borrower and the Subsidiaries on the date of this Agreement or any business that is similar, reasonably related, incidental or ancillary thereto or to the manufacture of sports equipment or metal or graphite products.   “Permitted Holders” shall mean the Sponsor and the Sponsor Related Parties.   “Permitted Holdings Indebtedness” shall mean Indebtedness of Holdings which (a) does not require the payment of cash interest, does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement), in each case, prior to the date that is six months after the Term Loan Maturity Date, (b) is not secured by any assets of Holdings, the Borrower or any Subsidiary, (c) is not Guaranteed by the Borrower or any Subsidiary, (d) is not exchangeable or convertible into Indebtedness of Holdings (except other Permitted Holdings Indebtedness), the Borrower or any Subsidiary or any preferred stock or other Equity Interest (other than common equity of Holdings, provided that any such exchange or conversion, if effected, would not result in a Change in Control) and (e) is subordinated to the Obligations to the same degree (or to a greater degree) as those obligations that are subject to the Affiliate Subordination Agreement.   “Permitted Investments” shall mean:   (a)                                  direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;   22        (b)                                 investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;   (c)                                  investments in certificates of deposit, banker’s acceptances and time deposits maturing within 270 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000;   (d)                                 fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above;   (e)                                  investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above; and   (f)                                    other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.   “Permitted Refinancing Indebtedness” shall mean Indebtedness issued or incurred (including by means of the extension or renewal of existing Indebtedness) to refinance, refund, extend, renew or replace existing Indebtedness (“Refinanced Indebtedness”); provided that (a) the principal amount of such refinancing, refunding, extending, renewing or replacing Indebtedness is not greater than the principal amount of such Refinanced Indebtedness plus the amount of any premiums or penalties and accrued and unpaid interest paid thereon and reasonable fees and expenses, in each case associated with such refinancing, refunding, extension, renewal or replacement, (b) such refinancing, refunding, extending, renewing or replacing Indebtedness has a final maturity that is no sooner than, and a weighted average life to maturity that is no shorter than, such Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any Guarantees thereof are subordinated to the Obligations, such refinancing, refunding, extending, renewing or replacing Indebtedness and any Guarantees thereof remain so subordinated on terms no less favorable to the Lenders, (d) the obligors in respect of such Refinanced Indebtedness immediately prior to such refinancing, refunding, extending, renewing or replacing are the only obligors on such refinancing, refunding extending, renewing or replacing Indebtedness and (e) unless such refinancing, refunding, extending, renewing or replacing shall occur within 30 days of the final maturity of such Refinanced Indebtedness, such refinancing, refunding, extending, renewing or replacing Indebtedness contains covenants and events of default and is benefited by Guarantees, if any, which, taken as a whole, are determined in good faith by a Financial Officer of the Borrower to be no less favorable to the Borrower or the applicable Subsidiary and the Lenders in any material respect than the covenants and events of default or Guarantees, if any, in respect of such Refinanced Indebtedness; provided further, however, that any Indebtedness issued or incurred to refinance, refund, extend, renew or replace   23        the Indebtedness of Jineng that is set forth in Schedule 6.01 or the Foreign Target shall not be subject to clause (b) or clause (e) above.   “person” shall mean any natural person, corporation, trust, business trust, joint venture, joint stock company, association, company, limited liability company, partnership, Governmental Authority or other entity.   “Pledged Collateral” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.   “Prime Rate” shall mean the rate of interest per annum announced from time to time by Credit Suisse as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective as of the opening of business on the date such change is announced as being effective. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually available.   “Pro Forma EBITDA” shall have the meaning assigned to such term in Section 4.02(k).   “Proposed Domestic Acquisition” means the acquisition made pursuant to an asset purchase agreement, dated as of the Funding Date, between the Borrower, as the purchaser, and a company previously disclosed to the Administrative Agent, as the seller.   “Proposed Foreign Acquisition” means the Borrower’s establishment or expansion of a Permitted Business in a foreign jurisdiction previously identified in writing to the Administrative Agent or any province thereof, including by way of the acquisition of the assets of, or of the Equity Interests of (resulting in a Subsidiary), a Person located in such jurisdiction or a province thereof, or the making of Capital Expenditures therein.   “Pro Rata Percentage” of any Revolving Credit Lender, at any time, shall mean the percentage of the Total Revolving Credit Commitment represented by such Lender’s Revolving Credit Commitment. In the event the Revolving Credit Commitments shall have expired or been terminated, the Pro Rata Percentages of any Revolving Credit Lender shall be determined on the basis of the Revolving Credit Commitments most recently in effect prior thereto.   “Purchase Agreement” shall mean the stock purchase agreement dated as of January 30, 2004, by and among TTS Holdings, the Sellers and Holdings.   “Qualified IPO” shall mean an underwritten initial public offering of common stock of (and by) Holdings pursuant to an effective registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act of 1933, as amended, which initial public offering results in gross cash proceeds to Holdings of $50,000,000 or more.   “Real Property” shall mean all Mortgaged Property and all other real property owned or leased from time to time by Holdings, the Borrower and the Subsidiaries.   “Receivables Subsidiary” shall mean a Subsidiary which engages in no activities other than in connection with the financing of accounts receivable or related assets (including contract rights) and which is designated by the board of directors of the Borrower (as provided below) as   24        a Receivables Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by Holdings, the Borrower or any of the other Subsidiaries (but excluding customary representations, warranties, covenants and indemnities entered into in connection with a Securitization Transaction), (ii) is recourse to or obligates Holdings, the Borrower or any of the other Subsidiaries in any way other than pursuant to customary representations, warranties, covenants and indemnities entered into in connection with a Securitization Transaction or (iii) subjects any property or asset (including contract rights) of Holdings, the Borrower or any of the other Subsidiaries (other than accounts receivable and related assets provided in the definition of “Securitization Transaction”), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to customary representations, warranties, covenants and indemnities entered into in connection with a Securitization Transaction, (b) with which none of Holdings, the Borrower or any of the other Subsidiaries has any material contract, agreement, arrangement or understanding other than on terms no less favorable to Holdings, the Borrower or such other Subsidiary than those that might be obtained at the time from persons who are not Affiliates of Holdings, other than customary fees payable in connection with servicing accounts receivable and (c) with which none of Holdings, the Borrower or any of the other Subsidiaries has any obligation to maintain or preserve such Subsidiary’s financial condition or cause such Subsidiary to achieve certain levels of operating results. Any such designation by the board of directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the board of directors of the Borrower giving effect to such designation and a certificate of a Financial Officer of the Borrower certifying that such designation complied with the foregoing requirements.   “Recovery Event” shall mean any settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of Holdings, the Borrower or any Subsidiary.   “Register” shall have the meaning assigned to such term in Section 9.04(d).   “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.   “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.   “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.   “Related Fund” shall mean, with respect to any Lender, any other fund that invests in bank loans and is advised or managed by the same investment advisor or manager as such Lender or by an Affiliate of such investment advisor or manager.   “Related Parties” shall mean, with respect to any specified person, such person’s Affiliates and the respective directors, officers, employees, agents and advisors of such person and such person’s Affiliates.   25        “Release” shall mean any release, spill, seepage, emission, leaking, pumping, injection, pouring, emptying, deposit, disposal, discharge, dispersal, dumping, escaping, leaching, or migration into, onto or through the environment or within or upon any building, structure, facility or fixture.   “Repayment Date” shall have the meaning given such term in Section 2.11.   “Required Lenders” shall mean, at any time, Lenders (other than Defaulting Lenders) having Loans (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments representing at least a majority of the sum of all Loans outstanding (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments at such time.   “Required Prepayment Percentage” shall mean (a) in the case of any Asset Sale or Recovery Event, 100%; (b) in the case of any Equity Issuance, if on the date of the applicable prepayment, to the extent that the Leverage Ratio, after giving effect to any repayment of Loans with the applicable Net Cash Proceeds, is greater than or equal to 4.00 to 1.00, 50%, and to the extent that the Leverage Ratio, after giving effect to any repayment of Loans with the applicable Net Cash Proceeds, is less than 4.00 to 1.00, 25%; (c) in the case of any issuance or other incurrence of Indebtedness, 100%; and (d) in the case of any Excess Cash Flow, if on the last day of the applicable fiscal year, to the extent that the Leverage Ratio, after giving effect to any repayment of Loans with the applicable Net Cash Proceeds, is (i) greater than or equal to 4.00 to 1.00, 75%, (ii) less than 4.00 to 1.00 but greater than 3.00 to 1.00, 50%, (iii) less than or equal to 3.00 to 1.00 but greater than 2.00 to 1.00, 25% and (iv) less than or equal to 2.00 to 1.00, 0%.   “Requirement of Law” shall mean as to any person, the governing documents of such person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such person or any of its Real Property or personal property or to which such person or any of its property of any nature is subject.   “Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.   “Restricted Indebtedness” shall mean Indebtedness of Holdings, the Borrower or any Subsidiary, the payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09(b).   “Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdings, the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation or termination of any Equity Interests in Holdings, the Borrower or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in Holdings, the Borrower or any Subsidiary.   26        “Revolving Credit Borrowing” shall mean a Borrowing comprised of Revolving Loans.   “Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans (and to acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Lender Addendum delivered by such Lender or as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.   “Revolving Credit Exposure” shall mean, with respect to any Lenders, at any time, the aggregate principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s L/C Exposure, plus the aggregate amount at such time of such Lender’s Swingline Exposure.   “Revolving Credit Lender” shall mean a Lender with a Revolving Credit Commitment or an outstanding Revolving Loan.   “Revolving Credit Maturity Date” shall mean March 15, 2009.   “Revolving Loans” shall mean the revolving loans made by the Lenders to the Borrower pursuant to clause (b) of Section 2.01.   “S&P” shall mean Standard & Poor’s Ratings Group, Inc.   “Secured Parties” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.   “Securitization Transactions” shall mean, with respect to any person, any transfer by such person of accounts receivable or interests therein (a) to a trust, partnership, corporation or other entity that is a Receivables Subsidiary, which transfer is funded in whole or in part, directly or indirectly, by the incurrence or issuance by the transferee or any successor transferee of Indebtedness or securities that are to receive payments from, or that represent interests in, the cash flow derived from such accounts receivable or interests, or (b) directly to one or more investors or other purchasers. The amount of any Securitization Transaction shall be deemed at any time to be the aggregate principal or stated amount of the Indebtedness or securities referred to in the preceding sentence or, if there shall be no such principal or stated amount, the uncollected amount of the accounts receivable transferred pursuant to such Securitization Transaction net of any accounts receivable that have been written off as uncollectible.   “Security Documents” shall mean the Guarantee and Collateral Agreement, the Mortgages, the Intellectual Property Security Agreements and each of the other security agreements, pledges, mortgages, consents and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.09 or 5.10.   “Sellers” shall mean True Temper Sports, LLC, and certain members of management of Holdings party to the Purchase Agreement.   27         “Senior Secured Debt” shall mean, at any time, the principal amount of all the Obligations and all other Indebtedness included in Total Debt at such time, except the Subordinated Notes and any other unsecured Indebtedness.   “SPC” shall have the meaning assigned to such term in Section 9.04(i).   “Sponsor” shall mean, collectively, Gilbert Global Equity Partners, L.P., Gilbert Global Equity Partners (Bermuda), L.P. and GGEP/SK Equity Partners, LLC.   “Sponsor Related Parties” shall mean (a) any (i) controlling stockholder, partner or member, (ii) majority-owned (or more) subsidiary or (iii) spouse or immediate family member (in the case of an individual), in each case, of the Sponsor or (b) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or persons beneficially holding (directly or through on or more subsidiaries) a greater than 50% controlling interest of which consist of the Sponsor and/or such persons referred to in the immediately preceding clause (a).   “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.   “Stockholders Agreement” shall mean the Stockholders Agreement dated as of the Closing Date among Holdings and its stockholders party thereto.   “Subordinated Note Documents” shall mean the indenture under which the Subordinated Notes are issued and all other instruments, agreements and other documents evidencing or governing the Subordinated Notes or providing for any Guarantee or other right in respect thereof.   “Subordinated Notes” shall mean the Borrower’s 8-3/8% Senior Subordinated Notes due 2011, in an aggregate principal amount of $125,000,000, including any notes issued by the Borrower in full exchange for, and as contemplated by, the Subordinated Notes with substantially identical terms as the Subordinated Notes.   “subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held, or (b) that is, at the time   28        any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.   “Subsidiary” shall mean any subsidiary of the Borrower.   “Subsidiary Guarantor” shall mean, initially, each Subsidiary specified on Schedule 1.01(c) and, at any time thereafter, shall include each other Subsidiary that is not an Excluded Foreign Subsidiary or a Receivables Subsidiary.   “Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.22, as the same may be reduced from time to time pursuant to Section 2.09.   “Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.   “Swingline Lender” shall mean Credit Suisse (formerly known as Credit Suisse First Boston), in its capacity as lender of Swingline Loans hereunder.   “Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.22.   “Syndication Agent” shall have the meaning assigned to such term in the preamble.   “Synthetic Lease Obligations” shall mean all monetary obligations of a person under (a) a so-called synthetic, off-balance sheet or tax retention lease (which is not a true operating lease) or (b) an agreement for the use or possession of any property (whether real, personal or mixed) creating obligations which do not appear on the balance sheet of such person, but which, upon the insolvency or bankruptcy of such person, would be characterized as Indebtedness of such person (without regard to accounting treatment).   “Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or combination of agreements pursuant to which Holdings, the Borrower or any Subsidiary is or may become obligated to make (a) any payment in connection with a purchase by any third party from a person other than Holdings, the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock or similar plan providing for payments only to current or former directors, officers or employees of Holdings, the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic Purchase Agreement.   “Tax Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.   29        “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges, liabilities or withholdings imposed by any Governmental Authority.   “Tax Sharing Agreement” shall mean the tax sharing agreement dated as of the Closing Date among Holdings, the Borrower and the Subsidiaries party thereto.   “Term Borrowing” shall mean a Borrowing comprised of Term Loans.   “Term Lender” shall mean a Lender with a Term Loan Commitment or an outstanding Term Loan.   “Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Term Loans hereunder as set forth on the Lender Addendum delivered by such Lender or as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the Term Loan Commitments is $110,000,000. The aggregate amount of the Term Loan Commitments following the Amendment Effective Date is $128,000,000. Unless the context shall otherwise require, (i) after the Amendment Effective Date, the term “Term Loan Commitment” shall include any Additional Term Loan Commitment and (ii) after the effectiveness of any Incremental Term Loan Commitment, the term “Term Loan Commitment” shall include such Incremental Term Loan Commitment.   “Term Loan Maturity Date” shall mean March 15, 2011.   “Term Loans” shall mean the term loans made by the Lenders to the Borrower pursuant to Section 2.01 and, if applicable, Section 2.24. Unless the context shall otherwise require, the term “Term Loan” shall include any Additional Term Loans, Incremental Term Loans and any Other Term Loans.   “Total Debt” shall mean, as of the last day of any fiscal quarter, the aggregate amount of Indebtedness of the Borrower and the Subsidiaries outstanding at such time, in the amount that would be reflected on a balance sheet prepared at such time on a consolidated basis in accordance with GAAP.   “Total Revolving Credit Commitment” shall mean, at any time, the aggregate amount of the Revolving Credit Commitments, as in effect at such time. The Total Revolving Credit Commitment on the Closing Date is $20,000,000.   “Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents and the Subordinated Note Documents to which they are a party, (b) the borrowings hereunder, the issuance of the Subordinated Notes, the issuance of Letters of Credit and the use of proceeds of each of the foregoing, (c) the granting of Liens pursuant to the Security Documents, (d) the Acquisition and the other Acquisition Transactions and (e) any other transactions related to or entered into in connection with any of the foregoing.   30        “TTS Holdings” shall mean TTS Holdings LLC, a Delaware limited liability company controlled by the Sponsor and its Affiliates, which was merged with and into Holdings on the Closing Date, with Holdings being the surviving person.   “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate and the Alternate Base Rate.   “UCC” shall mean the Uniform Commercial Code.   “Uniform Customs” shall have the meaning assigned to such term in Section 9.07.   “wholly owned subsidiary” of any person shall mean a subsidiary of such person of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time any determination is being made, owned, controlled or held by such person or one or more wholly owned subsidiaries of such person or by such person and one or more wholly owned subsidiaries of such person; a “wholly owned Subsidiary” shall mean any wholly owned subsidiary of the Borrower.   “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.   SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”, and words of similar import, shall not be limiting and shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement unless the context shall otherwise require. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, (a) any definition of, or reference to, any Loan Document, including this Agreement, or any other agreement, instrument or document in this Agreement shall mean such Loan Document or other agreement, instrument or document as amended, restated, supplemented or otherwise modified from time to time (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein) and (b) all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI or any related definition to eliminate the effect of any change in GAAP occurring after the date of this Agreement on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI or any related definition for such purpose), then the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend (subject to the approval of the Required Lenders) such covenant   31        to preserve the original intent thereof in light of such change; provided that until so amended the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders.   SECTION 1.03. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing”).   SECTION 1.04. Pro Forma Calculations. All pro forma calculations permitted or required to be made by the Borrower or any Subsidiary pursuant to this Agreement shall include only those adjustments that would be permitted or required by Regulation S-X under the Securities Act of 1933, as amended, together with those adjustments that (a) have been certified by a Financial Officer of the Borrower as having been prepared in good faith based upon reasonable assumptions and (b) are based on reasonably detailed written assumptions reasonably acceptable to the Administrative Agent.   ARTICLE II   The Credits    SECTION 2.01. Commitments. Subject to the terms and conditions hereof and relying upon the representations and warranties set forth herein, (a) each Term Lender having a Term Loan Commitment on the Closing Date has made a Term Loan to the Borrower on the Closing Date in a principal amount not exceeding its Term Loan Commitment on such date, (b) each Term Lender having a Term Loan Commitment on the Amendment Effective Date agrees, severally and not jointly, to make a Term Loan to the Borrower on a single date specified by the Borrower that is prior to the Additional Term Loan Commitment Termination Date in a principal amount not to exceed its Term Loan Commitment, (c) each Incremental Term Lender which shall provide an Incremental Term Loan Commitment pursuant to Section 2.24 agrees, severally and not jointly, to make an Incremental Term Loan to the Borrower in a principal amount not to exceed its Incremental Term Loan Commitment and (d) each Revolving Credit Lender agrees, severally and not jointly, to make Revolving Loans to the Borrower, at any time and from time to time on or after the Closing Date and until the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit Commitment of such Revolving Credit Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in such Revolving Credit Lender’s Revolving Credit Exposure exceeding such Revolving Credit Lender’s Revolving Credit Commitment. Within the limits set forth in clause (d) of the preceding sentence and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may not be reborrowed.   32          SECTION 2.02. Loans. (a)  Each Loan (other than Swingline Loans) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class; provided, however, that the failure of any Lender to make any Loan required to be made by it shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to Section 2.02(f) and subject to Section 2.22 relating to Swingline Loans, the Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $500,000 and not less than $2,000,000 or (ii) equal to the remaining available balance of the applicable Commitments.   (b)                                 Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than ten Eurodollar Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.   (c)                                  Except with respect to Loans made pursuant to Section 2.02(f) and subject to Section 2.22 relating to Swingline Loans, each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 11:00 a.m., New York City time, and the Administrative Agent shall promptly credit the amounts so received to an account designated by the Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the respective Lenders.   (d)                                 Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with paragraph (c) of this Section and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower to but excluding the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing or (ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its cost of overnight or short-term funds (which determination shall be conclusive absent manifest error). If such Lender shall repay to   33        the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.   (e)                                  Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request any Revolving Credit Borrowing if the Interest Period requested with respect thereto would end after the Revolving Credit Maturity Date.   (f)                                    If the Issuing Bank shall not have received from the Borrower the payment required to be made by Section 2.23(e) with respect to a Letter of Credit within the time specified in such Section, the Issuing Bank will promptly notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will promptly notify each Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately available funds to the Administrative Agent not later than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit Lender shall have received such notice later than 12:00 (noon), New York City time, on any day, not later than 10:00 a.m., New York City time, on the immediately following Business Day), an amount equal to such Lender’s Pro Rata Percentage of such L/C Disbursement (it being understood that such amount shall be deemed to constitute an ABR Revolving Loan of such Lender and such payment shall be deemed to have reduced the L/C Exposure), and the Administrative Agent will promptly pay to the Issuing Bank amounts so received by it from the Revolving Credit Lenders. The Administrative Agent will promptly pay to the Issuing Bank any amounts received by it from the Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit Lender makes any payment pursuant to this paragraph; any such amounts received by the Administrative Agent thereafter will be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have made such payments and to the Issuing Bank, as their interests may appear. If any Revolving Credit Lender shall not have made its Pro Rata Percentage of such L/C Disbursement available to the Administrative Agent as provided above, such Lender and the Borrower severally agree to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this paragraph to but excluding the date such amount is paid, to the Administrative Agent for the account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such Lender, for the first such day, the Federal Funds Effective Rate, and for each day thereafter, the Alternate Base Rate.   SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which this Section 2.03 shall not apply), the Borrower shall notify the Administrative Agent by telephone (promptly confirmed by fax) or shall hand deliver or fax to the Administrative Agent a duly completed Borrowing Request (a) in the case of a Eurodollar Borrowing, not later than 12:00 p.m. (noon), New York City time, three Business Days before a proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 12:00 p.m. (noon), New York City time, one Business Day before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be signed by or on behalf of the Borrower and shall specify the following information:  (i) whether the Borrowing then being requested is to be a Term Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business Day); (iii) the number and location of the account to which funds are to be disbursed (which shall be an account that complies with the   34        requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the initial Interest Period with respect thereto; provided, however, that, notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice given in accordance with this Section 2.03 (and the contents thereof), and of each Lender’s portion of the requested Borrowing.   SECTION 2.04. Repayment of Loans; Evidence of Debt. (a)  The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender (i) the principal amount of each Term Loan of such Lender made to the Borrower as provided in Section 2.11 and (ii) the then unpaid principal amount of each Revolving Loan of such Lender made to the Borrower on the Revolving Credit Maturity Date. The Borrower hereby unconditionally promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline Loan made to the Borrower on the Revolving Credit Maturity Date.   (b)                                 Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender to the Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.   (c)                                  The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of the sum received by the Administrative Agent hereunder from the Borrower or any Guarantor and each Lender’s share thereof.   (d)                                 The entries made in the accounts maintained pursuant to paragraphs (b) and (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans made to the Borrower in accordance with the terms of this Agreement.   (e)                                  Any Lender may request that Loans made by it hereunder be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to such Lender and, if requested by such Lender, its registered assigns, in the form of Exhibit I, if such promissory note relates to Revolving Credit Borrowings, or in the form of Exhibit J, if such promissory note relates to Term Borrowings, or any other form reasonably acceptable to the Administrative Agent. Notwithstanding any other provision of this Agreement, in the event any Lender shall request and receive such a promissory note, the interests represented by such note shall at all times (including after any assignment of all or part   35        of such interests pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named therein or its registered assigns.   SECTION 2.05. Fees. (a)  The Borrower agrees to pay to each Lender, through the Administrative Agent, on the last Business Day of March, June, September and December in each year and on each date on which any Commitment of such Lender shall expire or be terminated as provided herein, a commitment fee (a “Commitment Fee”) equal to the Commitment Fee Rate on the average daily unused amount of the Commitments of such Lender (other than the Swingline Commitment) during the preceding quarter (or other period commencing with the Closing Date or ending with the Revolving Credit Maturity Date or the date on which the Commitments of such Lender shall expire or be terminated). All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the Commitment of such Lender shall expire or be terminated as provided herein. For purposes of calculating Commitment Fees with respect to Revolving Credit Commitments only, no portion of the Revolving Credit Commitments shall be deemed utilized under Section 2.22 as a result of outstanding Swingline Loans.   (b)                                 The Borrower agrees to pay to the Administrative Agent, for its own account, the fees in the amounts and at the times from time to time agreed to in writing by the Borrower (or any Affiliate) and the Administrative Agent, including pursuant to the applicable Fee Letter (the “Administrative Agent Fees”).   (c)                                  The Borrower agrees to pay (i) to each Revolving Credit Lender, through the Administrative Agent, on the last Business Day of March, June, September and December of each year and on the date on which the Revolving Credit Commitment of such Lender shall be terminated as provided herein (each, an “L/C Fee Payment Date”) a fee (an “L/C Participation Fee”) calculated on such Lender’s Pro Rata Percentage of the daily aggregate L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements which are earning interim interest pursuant to Section 2.23(h)) during the preceding quarter (or shorter period commencing with the Closing Date or ending with the Revolving Credit Maturity Date or the date on which all Letters of Credit have been canceled or have expired and the Revolving Credit Commitments of all Lenders shall have been terminated) at a rate per annum equal to the Applicable Margin used to determine the interest rate on Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing Bank with respect to each outstanding Letter of Credit issued for the account of (or at the request of) the Borrower a fronting fee, which shall accrue at the rate of ¼ of 1% per annum or such other rate as shall be separately agreed upon between the Borrower and the Issuing Bank, on the drawable amount of such Letter of Credit, payable quarterly in arrears on each L/C Fee Payment Date after the issuance date of such Letter of Credit, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit issued for the account of (or at the request of) the Borrower or processing of drawings thereunder (the fees in this clause (ii), collectively, the “Issuing Bank Fees”). All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days.   (d)                                 The Borrower agrees to pay to the Administrative Agent for the account of the applicable Term Lenders, a fee in an amount equal to 0.50% per annum on the aggregate amount   36        of the Additional Term Loan Commitments (payable to such applicable Term Lenders on a pro rata basis with respect to their Additional Term Loan Commitments), accruing for the period from the Fee Trigger Date through and including the Additional Term Loan Commitment Termination Date if (i) the borrowing of the Additional Term Loans does not occur within 60 days following the Amendment Effective Date or (ii) the Borrower terminates the Additional Term Loans Commitments on or following the Fee Trigger Date.   (e)                                  All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of the Fees shall be refundable under any circumstances.   SECTION 2.06. Interest on Loans. (a)  Subject to the provisions of Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate is determined by reference to the Prime Rate and over a year of 360 days at all other times, in each case calculated from and including the date of such ABR Borrowing to but excluding the date of repayment) at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin in effect from time to time.   (b)                                 Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin in effect from time to time.   (c)                                  Interest on each Loan shall be payable on the Interest Payment Dates applicable to such Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may be, shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.   SECTION 2.07. Default Interest. If the Borrower shall default in the payment of the principal of or interest on any Loan or any other amount becoming due hereunder or under any other Loan Document, by acceleration or otherwise, the Borrower shall on demand from time to time pay interest, to the extent permitted by law, on such defaulted amount to but excluding the date of actual payment (after as well as before judgment) (a) in the case of overdue principal, at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined by reference to the Prime Rate and over a year of 360 days at all other times) equal to the rate that would be applicable to an ABR Revolving Loan plus 2.00%.   SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that prior to the commencement of any Interest Period for a Eurodollar Borrowing (a) the Administrative Agent shall have determined that adequate and reasonable means do not exist for determining the Adjusted LIBO Rate for such Interest Period or (b) the Administrative Agent is advised by the Majority Facility Lenders in respect of the relevant Facility that the Adjusted LIBO Rate for such   37        Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period, the Administrative Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to the Borrower and the Lenders. In the event of any such determination, until the Administrative Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing and (ii) any Interest Period election that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective. Each determination by the Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.   SECTION 2.09. Termination and Reduction of Commitments. (a)  Unless previously terminated in accordance with the terms hereof, (i) the Term Loan Commitments made under the Existing Credit Agreement automatically terminated at 5:00 p.m., New York City time, on the Closing Date, (ii) the Revolving Credit Commitments, the Swingline Commitment and the L/C Commitment shall automatically terminate on the Revolving Credit Maturity Date and (iii) the Additional Term Loan Commitments made under this Agreement shall automatically terminate on the earlier of (such date, the “Additional Term Loan Commitment Termination Date”) (A) 5:00 p.m., New York City time, on the date that the Borrower delivers written notice to the Administrative Agent notifying the Administrative Agent that the Borrower will not borrow the Additional Term Loans, (B) the Borrowing thereunder on the Funding Date and (C) 5:00 p.m., New York City time, on the date that is 150 days after the Amendment Effective Date if a Borrowing of Additional Term Loans shall not have occurred by such time.   (b)                                 Upon at least three Business Days’ prior irrevocable written or fax notice to the Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to time in part permanently reduce, the Additional Term Loan Commitments, the Incremental Term Loan Commitments, the Revolving Credit Commitments or the Swingline Commitment; provided, however, that (i) each partial reduction of the Additional Term Loan Commitments, the Incremental Term Loan Commitments, the Revolving Credit Commitments or the Swingline Commitment shall be in an integral multiple of $500,000 and in a minimum amount of $2,000,000 and (ii) the Total Revolving Credit Commitment shall not be reduced to an amount that is less than the Aggregate Revolving Credit Exposure then in effect.   (c)                                  Each reduction in the Additional Term Loan Commitments, the Incremental Term Loan Commitments, the Revolving Credit Commitments or Swingline Commitment hereunder shall be made ratably among the applicable Lenders in accordance with their Pro Rata Percentages. The Borrower shall pay to the Administrative Agent for the account of the applicable Lenders, on the date of each termination or reduction, the Commitment Fees on the amount of the Commitments so terminated or reduced accrued to but excluding the date of such termination or reduction.   SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall have the right at any time upon prior irrevocable notice to the Administrative Agent (a) not later than 12:00 p.m. (noon), New York City time, one Business Day prior to conversion, to convert any Eurodollar Borrowing of the Borrower into an ABR Borrowing, (b) not later than 12:00 p.m. (noon), New York City time, three Business Days prior to conversion or continuation, to convert   38        any ABR Borrowing of the Borrower into a Eurodollar Borrowing or to continue any Eurodollar Borrowing of the Borrower as a Eurodollar Borrowing for an additional Interest Period and (c) not later than 12:00 p.m. (noon), New York City time, three Business Days prior to conversion, to convert the Interest Period with respect to any Eurodollar Borrowing of the Borrower to another permissible Interest Period, subject in each case to the following:   (i)                                     each conversion or continuation shall be made pro rata among the Lenders in accordance with the respective principal amounts of the Loans comprising the converted or continued Borrowing;   (ii)                                  if less than all the outstanding principal amount of any Borrowing shall be converted or continued, then each resulting Borrowing shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number of Borrowings of the relevant Type;   (iii)                               each conversion shall be effected by each Lender and the Administrative Agent by recording for the account of such Lender the new Loan of such Lender resulting from such conversion and reducing the Loan (or portion thereof) of such Lender being converted by an equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at the time of conversion;   (iv)                              if any Eurodollar Borrowing is converted at a time other than the end of the Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the Lenders pursuant to Section 2.16;   (v)                                 any portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued as a Eurodollar Borrowing;   (vi)                              any portion of a Eurodollar Borrowing that cannot be converted into or continued as a Eurodollar Borrowing by reason of the immediately preceding clause shall be automatically converted at the end of the Interest Period in effect for such Borrowing into an ABR Borrowing;   (vii)                           no Interest Period may be selected for any Eurodollar Term Borrowing that would end later than a Repayment Date occurring on or after the first day of such Interest Period if, after giving effect to such selection, the aggregate outstanding amount of (A) the Eurodollar Term Borrowings with Interest Periods ending on or prior to such Repayment Date and (B) the ABR Term Borrowings would not be at least equal to the principal amount of Term Borrowings to be paid on such Repayment Date; and   (viii)                        upon notice to the Borrower from the Administrative Agent given at the request of the Required Lenders, after the occurrence and during the continuance of a Default or Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar Loan.   39        Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be converted or continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest Period is specified in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall advise the Lenders of any notice given pursuant to this Section 2.10 and of each Lender’s portion of any converted or continued Borrowing. If the Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be converted or continued into an ABR Borrowing.   SECTION 2.11. Repayment of Term Borrowings.   (a)                                  (i)  On the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day (each such date being called a “Repayment Date”), the Borrower shall pay to the Administrative Agent, for the account of the Term Lenders, a principal amount of the Term Loans (as adjusted from time to time pursuant to Sections 2.12, 2.13(f) and 2.24(d)) equal to the amount set forth below for such date, together in each case with accrued and unpaid interest and Fees on the amount to be paid to but excluding the date of such payment:      Repayment Date       Amount         March 31, 2006       $   320,000         June 30, 2006       $   320,000         September 30, 2006       $   320,000         December 31, 2006       $   320,000         March 31, 2007       $   320,000         June 30, 2007       $   320,000         September 30, 2007       $   320,000         December 31, 2007       $   320,000         March 31, 2008       $   320,000         June 30, 2008       $   320,000         September 30, 2008       $   320,000         December 31, 2008       $   320,000         March 31, 2009       $   320,000         June 30, 2009       $   320,000         September 30, 2009       $   320,000         December 31, 2009       $   320,000         March 31, 2010       $   320,000         June 30, 2010       $   30,640,000         September 30, 2010       $   30,640,000         December 31, 2010       $   30,640,000         Term Loan Maturity Date       Remainder          40        (ii)  The Borrower shall pay to the Administrative Agent, for the account of the applicable Lenders, on each Incremental Term Loan Repayment Date, a principal amount of Other Term Loans (as adjusted from time to time pursuant to Sections 2.12 and 2.13(f)) equal to the amount set forth for such date in the applicable Incremental Term Loan Assumption Agreement, together in each case with accrued and unpaid interest and Fees on the amount to be paid to but excluding the date of such payment.   (b)                                 To the extent not previously paid, all Term Loans and (if applicable) Other Term Loans shall be due and payable on the Term Loan Maturity Date or the applicable Incremental Term Loan Maturity Date, as the case may be, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.   (c)                                  All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.   SECTION 2.12. Prepayment. (a)  The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’ prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR Loans, to the Administrative Agent before 12:00 p.m. (noon), New York City time; provided, however, that each partial prepayment shall be in an amount that is an integral multiple of $500,000 and not less than $500,000.   (b)                                 Optional prepayments of Term Loans shall be applied, first, pro rata to the scheduled installments of principal due in respect of the Term Loans in accordance with Section 2.11 within twelve months of such prepayment and, second, pro rata against the remaining scheduled installments of principal due in respect of the Term Loans.   (c)                                  Each notice of prepayment shall specify the prepayment date and the principal amount of each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount stated therein on the date stated therein. All prepayments under this Section 2.12 shall be subject to Section 2.16, but otherwise without premium or penalty. All prepayments under this Section 2.12 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.   SECTION 2.13. Mandatory Prepayments. (a)  In the event of any termination of all the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Borrowings and all its outstanding Swingline Loans and replace all its outstanding Letters of Credit and/or deposit an amount equal to the L/C Exposure in cash in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties, unless, in each case, if such termination arises as a result of the actions by the Administrative Agent described in clause (i) of the last paragraph of Article VII, the Majority Facility Lenders with respect to the Revolving Credit Facility shall otherwise agree. If as a result   41        of any partial reduction of the Revolving Credit Commitments the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment after giving effect thereto, then the Borrower shall, on the date of such reduction, repay or prepay Revolving Credit Borrowings or Swingline Loans (or a combination thereof) and/or cash collateralize Letters of Credit in an amount sufficient to eliminate such excess.   (b)                                 Unless the Majority Facility Lenders with respect to the Term Loan Facility shall otherwise agree, not later than the third Business Day following the completion of any Asset Sale or the occurrence of any Recovery Event (subject in each case to all applicable reinvestment and repayment rights to the extent set forth in the definition of “Net Cash Proceeds”), the Borrower shall apply the Required Prepayment Percentage of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f).   (c)                                  Unless the Majority Facility Lenders with respect to the Term Loan Facility shall otherwise agree, in the event and on each occasion that an Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the occurrence of such Equity Issuance, apply the Required Prepayment Percentage of the Net Cash Proceeds therefrom to prepay outstanding Term Loans in accordance with Section 2.13(f).   (d)                                 Unless the Majority Facility Lenders with respect to the Term Loan Facility shall otherwise agree, in the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 6.01 (other than pursuant to clause (A) of the proviso in Section 6.01(h) or Section 6.01(k))), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f).   (e)                                  Unless the Majority Facility Lenders with respect to the Term Loan Facility shall otherwise agree, no later than (i) in the case of the fiscal year of the Borrower ending on December 31, 2005, on June 30, 2006 and (ii) in the case of each subsequent fiscal year of the Borrower, the earlier of (x) 90 days after the end of such fiscal year and (y) the date on which the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance with Section 2.13(f), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended.   (f)                                    Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the applicable remaining scheduled installments due in respect of the Term Loans under Section 2.11.   (g)                                 The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount and date of such prepayment and (ii) to the extent practicable, at least three days prior written notice of such   42        prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.   SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)  Notwithstanding any other provision of this Agreement, if any Change in Law shall:   (i)                                     impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender, the Administrative Agent or the Issuing Bank (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or   (ii)                                  impose on any Lender, the Administrative Agent or the Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein,   and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to any Lender, the Administrative Agent or the Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender, the Administrative Agent or the Issuing Bank to be material, then the Borrower will pay to such Lender, the Administrative Agent or the Issuing Bank, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.   (b)                                 If any Lender, the Administrative Agent or the Issuing Bank shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on such Lender’s, the Administrative Agent’s or the Issuing Bank’s capital or on the capital of such Lender’s, the Administrative Agent’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit purchased by, such Lender or the Letters of Credit issued by the Issuing Bank to a level below that which such Lender, the Administrative Agent or the Issuing Bank or such Lender’s, the Administrative Agent’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s, the Administrative Agent’s or the Issuing Bank’s policies and the policies of such Lender’s, the Administrative Agent’s or the Issuing Bank’s holding company with respect to capital adequacy) by an amount deemed by such Lender, the Administrative Agent or the Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender, the Administrative Agent or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender, the Administrative Agent or the Issuing Bank or such Lender’s, the Administrative Agent’s or the Issuing Bank’s holding company for any such reduction suffered.   43        (c)                                  A certificate of a Lender, the Administrative Agent or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender, the Administrative Agent or the Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender, the Administrative Agent or the Issuing Bank, as the case may be, the amount or amounts shown as due on any such certificate delivered by it within 10 days after its receipt of the same.   (d)                                 Failure or delay on the part of any Lender, the Administrative Agent or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s, the Administrative Agent’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender, the Administrative Agent or the Issuing Bank under paragraph (a) or (b) above for increased costs or reductions with respect to any period prior to the date that is 270 days prior to such request if such Lender, the Administrative Agent or the Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 270-day period. The protection of this Section shall be available to each Lender, the Administrative Agent and the Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.   SECTION 2.15. Change in Legality. (a)  Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:   (i)                                     such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn; and   (ii)                                  such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in paragraph (b) below.   In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans   44        that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans. Any such conversion of a Eurodollar Loan under (i) above shall be subject to Section 2.16.   (b)                                 For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.   SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any loss (other than (x) any loss of margin over funding cost or (y) anticipated profit) or expense that such Lender may sustain or incur as a consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder, which results in (i) such Lender receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan, in each case other than on the last day of the Interest Period in effect therefor or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a conversion or continuation under Section 2.10) not being made after notice of such Loan shall have been given by the Borrower hereunder (any of the events referred to in this clause (a) being called a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be made hereunder. In the case of any Breakage Event, such loss shall include an amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error.   SECTION 2.17. Pro Rata Treatment. Except as provided below in this Section 2.17 with respect to Swingline Loans and as required under Section 2.15, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Commitment Fees, each reduction of the Term Loan Commitments or the Revolving Credit Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans). For purposes of determining the available Revolving Credit Commitments of the Lenders at any time, each outstanding Swingline Loan shall be deemed to have utilized the Revolving Credit Commitments of the Lenders (including those Lenders which shall not have made Swingline Loans) pro rata in accordance with such respective Revolving Credit Commitments. Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.   45        SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans or L/C Disbursement as a result of which the unpaid principal portion of its Loans and participations in L/C Disbursements shall be proportionately less than the unpaid principal portion of the Loans and participations in L/C Disbursements of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans and L/C Exposure of such other Lender, so that the aggregate unpaid principal amount of the Loans and L/C Exposure and participations in Loans and L/C Exposure held by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding as the principal amount of its Loans and L/C Exposure prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans and L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a participation in a Loan or L/C Disbursement deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.   SECTION 2.19. Payments. (a)  The Borrower shall make each payment (including principal of or interest on any Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and under any other Loan Document not later than 12:00 (noon), New York City time, on the date when due in immediately available dollars, without setoff, defense or counterclaim. Each such payment (other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as otherwise provided in Section 2.22(e)) shall be made to the Administrative Agent at its offices at Eleven Madison Avenue, New York, NY 10010. All payments hereunder and under each other Loan Document shall be made in dollars. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.   (b)                                 Except as otherwise expressly provided herein, whenever any payment (including principal of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Loan Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or Fees, if applicable.   46        SECTION 2.20. Taxes. (a)  Any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if any Indemnified Taxes or Other Taxes are required to be withheld or deducted from such payments, then (i) the sum payable by the Borrower shall be increased as necessary so that after all required deductions or withholding (including deductions or withholdings applicable to additional sums payable under this Section) the Administrative Agent or such Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such other Loan Party shall make (or cause to be made) such deductions and (iii) the Borrower or such other Loan Party shall pay (or cause to be paid) the full amount deducted to the relevant Governmental Authority in accordance with applicable law. In addition, the Borrower or any other Loan Party hereunder shall pay (or cause to be paid) any Other Taxes to the relevant Governmental Authority in accordance with applicable law.   (b)                                 The Borrower shall jointly and severally indemnify the Administrative Agent and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, or any of their respective Affiliates, on or with respect to any payment by or on account of any obligation of the Borrower or any Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that if the Borrower determines in good faith that a reasonable basis exists for contesting any Indemnified Taxes or Other Taxes for which an increase in the amount of such payment is made or for which indemnification has been demanded pursuant to this Section 2.20, such Lender or the Administrative Agent, as applicable, shall reasonably cooperate with the Borrower in challenging such Indemnified Taxes or Other Taxes at the Borrower’s expense if so requested by the Borrower in writing to the extent that such cooperation is not, in the Lender’s or the Administrative Agent’s reasonable discretion, unduly burdensome or disadvantageous. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender, or by the Administrative Agent on its behalf or on behalf of a Lender, shall be conclusive absent manifest error.   (c)                                  As soon as practicable after any payment of Indemnified Taxes or Other Taxes pursuant to Section 2.20(a), and in any event within 30 days of any such payment being due, the Borrower shall deliver (or cause to be delivered) to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.   (d)                                 Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent) such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will   47        permit such payments to be made without withholding or at a reduced rate; provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or delivery would not materially prejudice the legal position of such Lender. In addition, each Foreign Lender shall (i) furnish on or before it becomes a party to the Agreement either (a) two accurate and complete originally executed U.S. Internal Revenue Service Form W-8BEN (or successor form) or (b) an accurate and complete U.S. Internal Revenue Service Form W-8ECI (or successor form), certifying, in either case, to such Foreign Lender’s legal entitlement to an exemption or reduction from U.S. federal withholding tax with respect to all interest payments hereunder, and (ii) provide a new Form W8BEN (or successor form) or Form W-8ECI (or successor form) upon the expiration or obsolescence of any previously delivered form to reconfirm any complete exemption from, or any entitlement to a reduction in, U.S. federal withholding tax with respect to any interest payment hereunder; provided that any Foreign Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and is relying on the so-called “portfolio interest exemption” shall also furnish a “Non-Bank Certificate” in the form of Exhibit K together with a Form W8BEN. Notwithstanding any other provision of this paragraph, a Foreign Lender shall not be required to deliver any form pursuant to this paragraph that such Foreign Lender is not legally able to deliver.   (e)                                  Any Lender that is a United States person, as defined in Section 7701(a)(30) of the Internal Revenue Code, and is not an exempt recipient within the meaning of Treasury Regulations Section 1.6049-4(c) shall deliver to the Borrower (with a copy to the Administrative Agent) two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form that such person is entitled to provide at such time in order to comply with United States back-up withholding requirements.   (f)                                    Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.20 shall survive the payment in full of all amounts due hereunder.   (g)                                 In the event that any Lender or the Administrative Agent receives a refund in respect of Indemnified Taxes or Other Taxes as to which it has been paid additional amounts by the Borrower pursuant to clause (a) of this Section or indemnified by the Borrower pursuant to clause (b) of this Section and such Lender or the Administrative Agent, as applicable, reasonably determines that such refund is attributable to such additional amounts or indemnification, then such Lender or the Administrative Agent, as applicable, shall promptly notify the Administrative Agent and the Borrower and shall within 30 Business Days after the refund is actually received remit to the Borrower an amount as such Lender or the Administrative Agent, as applicable, determines to be the proportion of the refunded amount as will leave such Lender or the Administrative Agent, as applicable, after such remittance, in no better or worse position than it would have been if the Indemnified Taxes or Other Taxes had not been imposed and the corresponding additional amounts or indemnification payment not been made. Nothing in this Section 2.20(g) shall oblige any Lender or the Administrative Agent to disclose to the Borrower or any other person any information regarding its tax affairs or tax computations or interfere with the right of any Lender or the Administrative Agent to arrange its tax affairs in whatever manner it thinks fit and, in particular, no Lender or the Administrative Agent shall be under any obligation to claim relief from its corporate profits or similar tax liability in credits or deductions   48        available to it and, if it does claim, the extent, order and manner in which it does so shall be at its absolute discretion.   SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a)  In the event (i) any Lender or the Issuing Bank delivers a certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower is required to pay any additional amount to any Lender or the Issuing Bank or any Governmental Authority on account of any Lender or the Issuing Bank pursuant to Section 2.20 or (iv) any Lender does not consent to a proposed amendment, modification or waiver of this Agreement requested by the Borrower which requires the consent of all of the Lenders or all of the Lenders under any Facility to become effective (and which is approved by at least the Required Lenders), the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the Administrative Agent, require such Lender or the Issuing Bank to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights and obligations under this Agreement to an assignee that shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (y) solely with respect to replacements of Lenders pursuant to clauses (i), (ii) or (iii) of this Section, the Borrower shall have received the prior written consent of the Administrative Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the affected Lender or the Issuing Bank in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees and other amounts accrued for the account of such Lender or the Issuing Bank hereunder (including any amounts under Section 2.14 and Section 2.16); provided further that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s or the Issuing Bank’s claim for compensation under Section 2.14 or notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to cause such Lender or the Issuing Bank to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as the case may be (including as a result of any action taken by such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall waive its right to claim further compensation under Section 2.14 in respect of such circumstances or event or shall withdraw its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in respect of such circumstances or event, as the case may be, then such Lender or the Issuing Bank shall not thereafter be required to make any such transfer and assignment hereunder. In connection with any such replacement, if the replaced Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance reflecting such replacement within five Business Days of the date on which the replacement Lender executes and delivers such Assignment and Acceptance to the replaced Lender, then such replaced Lender shall be deemed to have executed and delivered such Assignment and Acceptance.   49        (b)                                 If (i) any Lender or the Issuing Bank shall request compensation under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount to any Lender or the Issuing Bank or any Governmental Authority on account of any Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which shall not require such Lender or the Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the Issuing Bank in connection with any such filing or assignment, delegation and transfer.   SECTION 2.22. Swingline Loans. (a)  Swingline Commitment. Subject to the terms and conditions hereof and relying upon the representations and warranties, set forth herein, the Swingline Lender agrees to make loans to the Borrower, at any time and from time to time after the Closing Date, and until the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit Commitments in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of all Swingline Loans exceeding $5,000,000 in the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline Loan shall be in a principal amount that is an integral multiple of $250,000. The Swingline Commitment may be terminated or reduced from time to time as provided herein. Within the foregoing limits, the Borrower may borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions and limitations set forth herein.   (b)                                 Swingline Loans. The Borrower shall notify the Administrative Agent by fax, or by telephone (confirmed by fax), not later than 12:00 p.m. (noon), New York City time, on the day of a proposed Swingline Loan to be made to it. Such notice shall be delivered on a Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the requested date (which shall be a Business Day) and amount of such Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any notice received from the Borrower pursuant to this paragraph (b). The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the account of the Borrower identified in such notice promptly on the date such Swingline Loan is so requested.   (c)                                  Prepayment. The Borrower shall have the right at any time and from time to time to prepay any Swingline Loan, in whole or in part, in a principal amount that is an integral multiple of $250,000 (or, if all outstanding Swingline Loans are being prepaid, the aggregate principal amount of all such outstanding Swingline Loans), upon giving written or fax notice (or telephone notice promptly confirmed by written or fax notice) to the Swingline Lender and to the Administrative Agent before 12:00 (noon), New York City time, on the date of prepayment at the Swingline Lender’s address for notices specified in the Lender Addendum delivered by the   50        Swingline Lender. All principal payments of Swingline Loans shall be accompanied by accrued interest on the principal amount being repaid to the date of payment.   (d)                                 Interest. Each Swingline Loan shall be an ABR Loan and, subject to the provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).   (e)                                  Participations. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Revolving Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Credit Lenders will participate. The Administrative Agent will, promptly upon receipt of such notice, give notice to each Revolving Credit Lender, specifying in such notice such Lender’s Pro Rata Percentage of such Swingline Loan or Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Credit Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Lenders under this Section) and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower (or other party liable for obligations of the Borrower) of any default in the payment thereof.   SECTION 2.23. Letters of Credit. (a)  General. Subject to the terms and conditions hereof, the Borrower may request the issuance of a Letter of Credit at any time and from time to time prior to the date that is 30 days prior to the termination of the Revolving Credit Commitments for its own account or for the account of any of the Subsidiary Guarantors (in which case the Borrower and such Subsidiary Guarantor shall be co-applicants with respect to such Letter of Credit), in a form reasonably acceptable to the Administrative Agent and the Issuing Bank. This Section shall not be construed to impose an obligation upon the Issuing Bank to issue any Letter of Credit that is inconsistent with the terms and conditions of this Agreement.   51        (b)                                 Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to request the issuance of a Letter of Credit (or to amend, renew or extend an existing Letter of Credit), the Borrower shall hand deliver or fax to the Issuing Bank and the Administrative Agent (no less than five Business Days (or such shorter period of time acceptable to the Issuing Bank) in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) below), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare such Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if, and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that, after giving effect to such issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed $10,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit Commitment. The contingent reimbursement obligations of Antares Capital Corporation owing to the issuing bank of the Existing Letters of Credit in respect of the Existing Letters of Credit shall be entitled to all of the rights, benefits and privileges afforded to Letters of Credit under this Agreement.   (c)                                  Expiration Date. Each Letter of Credit shall expire at the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit and (ii) the date that is five Business Days prior to the Revolving Credit Maturity Date, unless such Letter of Credit expires by its terms on an earlier date; provided, however, that a Letter of Credit may, upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of 12 months or less (but not beyond the date that is five Business Days prior to the Revolving Credit Maturity Date) unless the Issuing Bank notifies the beneficiary thereof at least 30 days prior to the then-applicable expiration date that such Letter of Credit will not be renewed.   (d)                                 Participations. By the issuance of a Letter of Credit and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit, effective upon the issuance of such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Pro Rata Percentage of each L/C Disbursement made by the Issuing Bank and not reimbursed by the Borrower (or, if applicable, another party pursuant to its obligations under any other Loan Document) forthwith on the date due as provided in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.   (e)                                  Reimbursement. If the Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall pay to the Administrative Agent an amount equal to    52        such L/C Disbursement not later than two hours after the Borrower shall have received notice from the Issuing Bank that payment of such draft will be made, or, if the Borrower shall have received such notice later than 10:00 a.m., New York City time, on any Business Day, not later than 10:00 a.m., New York City time, on the immediately following Business Day.   (f)                                    Obligations Absolute. The Borrower’s obligations to reimburse L/C Disbursements as provided in paragraph (e) above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, and irrespective of:   (i)                                     any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein;   (ii)                                  any amendment or waiver of, or any consent to departure from, all or any of the provisions of any Letter of Credit or any Loan Document;   (iii)                               the existence of any claim, setoff, defense or other right that the Borrower, any other party guaranteeing, or otherwise obligated with, the Borrower, any subsidiary or other Affiliate thereof or any other person may at any time have against the beneficiary under any Letter of Credit, the Issuing Bank, the Administrative Agent or any Lender or any other person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;   (iv)                              any draft or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;   (v)                                 payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; and   (vi)                              any other act or omission to act or delay of any kind of the Issuing Bank, any Lender, the Administrative Agent or any other person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of the Borrower’s obligations hereunder.   Without limiting the generality of the foregoing, it is expressly understood and agreed that the absolute and unconditional obligation of the Borrower hereunder to reimburse L/C Disbursements will not be excused by the gross negligence or willful misconduct of the Issuing Bank. However, the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s gross negligence or willful misconduct in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; it is understood that the Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further    53        investigation, regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit (i) the Issuing Bank’s exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross negligence of the Issuing Bank.   (g)                                 Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall as promptly as possible give telephonic notification, confirmed by fax, to the Administrative Agent and the Borrower of such demand for payment and whether the Issuing Bank has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the applicable Lenders with respect to any such L/C Disbursement. The Administrative Agent shall promptly give each Revolving Credit Lender notice thereof.   (h)                                 Interim Interest. If the Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, then, unless the Borrower shall reimburse such L/C Disbursement in full on such date, the unpaid amount thereof shall bear interest for the account of the Issuing Bank, for each day from and including the date of such L/C Disbursement to but excluding the earlier of the date of payment by the Borrower or the date on which interest shall commence to accrue thereon as provided in Section 2.02(f), at the rate per annum that would apply to such amount if such amount were an ABR Revolving Loan.   (i)                                     Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at any time by giving 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower. Subject to the next succeeding paragraph, upon the acceptance of any appointment as the Issuing Bank hereunder by a Lender that shall agree to serve as successor Issuing Bank, such successor shall succeed to and become vested with all the interests, rights and obligations of the retiring Issuing Bank and the retiring Issuing Bank shall be discharged from its obligations to issue additional Letters of Credit hereunder. At the time such removal or resignation shall become effective, the Borrower shall pay all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment as the Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory to the Borrower and the Administrative Agent, and, from and after the effective date of such agreement, (i) such successor Lender shall have all the rights and obligations of the previous Issuing Bank under this Agreement and the other Loan Documents and (ii) references herein and in the other Loan Documents to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the resignation or removal of the Issuing Bank    54        hereunder, the retiring Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation or removal, but shall not be required to issue additional Letters of Credit.   (j)                                     Cash Collateralization. If any Event of Default shall occur and be continuing, the Borrower shall, (i) on the Business Day it receives notice, if such notice is received by 11a.m. (New York City time) on such Business Day, and (ii) within one Business Day following the Business Day it receives notice, if such notice is received after 11a.m. (New York City time) on such Business Day, in each case from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit Lenders representing greater than 50% of the total L/C Exposure) thereof and of the amount to be deposited, deposit in an account with the Collateral Agent, for the ratable benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C Exposure as of such date. Such deposit shall be held by the Collateral Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits in Permitted Investments, which investments shall be made at the option and sole discretion of the Collateral Agent, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall (i) automatically be applied by the Administrative Agent to reimburse the Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Exposure at such time and (iii) if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Credit Lenders representing greater than 50% of the total L/C Exposure), be applied to satisfy the Obligations. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.   (k)                                  Additional Issuing Banks. The Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such Lender, designate one or more additional Lenders to act as an issuing bank under the terms of the Agreement. Any Lender designated as an issuing bank pursuant to this paragraph shall be deemed to be an “Issuing Bank” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Lender.   SECTION 2.24. Increase in Term Loan Commitments. (a)  The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an aggregate amount not to exceed the Incremental Debt Amount from one or more Incremental Term Lenders, which may include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $5,000,000 and in increments of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent)), (ii) the date    55        on which such Incremental Term Loan Commitments are requested to become effective (which date shall be prior to March 15, 2010 and shall not be less than 10 Business Days nor more than 60 days after the date of such notice) and (iii) whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with certain terms different from the Term Loans (“Other Term Loans”), subject to the provisions herein.   (b)                                 The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the average life to maturity of any Other Term Loans shall be no shorter than the average life to maturity of the Term Loans, (iii) any Other Term Loans shall rank pari passu in right of payment and of security with the Term Loans, (iv) any Other Term Loans shall have such pricing as may be agreed by the Borrower and the Persons providing such Other Term Loans (provided that, to the extent that any yield (taking into account, among other things, the interest rate spreads in respect of such Other Term Loans, any upfront fees paid to the Persons providing such Other Term Loans and any prepayment fees or penalties payable in respect of prepayments of such Other Term Loans) with respect to such Other Term Loans shall be greater than the yield with respect to the Term Loans at the time the applicable Incremental Term Loan Assumption Agreement is executed and delivered plus 0.25% per annum, the yield of the Term Loans shall be automatically increased (and/or fees shall be paid to the Lenders, as applicable) so as to eliminated such difference) and (v) any Other Term Loans shall otherwise be treated hereunder substantially the same as (and in any event no more favorably than) the Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and the terms of the Incremental Term Loan Commitment evidenced thereby; provided that any Incremental Term Loan Assumption Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.24. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.   (c)                                  Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.24 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date under paragraphs (a) and (b) of Section 4.02, as well as any other applicable documents reasonably required by the Administrative Agent in connection with    56        any such transaction, (iii) on such date, and after giving effect to the Borrowing of Incremental Term Loans contemplated thereby and the use of the proceeds therefrom as if made and applied on such date, the Borrower shall be in pro forma compliance with each of the covenants contained in Sections 6.11, 6.12 and 6.13 as of the most recently ended fiscal quarter, and (iv) no Default or Event of Default shall exist on such date before or after giving effect to such Incremental Term Loan Commitments and the Borrowing of Incremental Term Loans contemplated thereby and the use of the proceeds therefrom as if made and applied on such date.   (d)                                 Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each outstanding Eurodollar Term Borrowing on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurodollar Term Loans to ABR Term Loans made pursuant to the immediately preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then, subject to Section 2.07, the interest rate applicable to such Incremental Term Loan for the remainder of such Interest Period shall equal the Adjusted LIBO Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent two Business Days before the date such Incremental Term Loan is made) plus the Applicable Margin. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a) required to be made after the making of any Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.   ARTICLE III   Representations and Warranties   Each of Holdings and the Borrower jointly and severally represents and warrants to the Arranger, the Administrative Agent, the Collateral Agent, the Issuing Bank and each of the Lenders that:   SECTION 3.01. Organization; Powers. Holdings, the Borrower and each of the Subsidiaries (a) is duly organized or formed, validly existing and (if applicable) in good standing under the laws of the jurisdiction of its organization or formation, (b) has all requisite power and authority to own and operate its property and assets, to lease the property it operates as lessee and to carry on its business as now conducted and as proposed to be conducted, (c) is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure so to qualify, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect and (d) has the power and authority to execute, deliver and perform its obligations under this Agreement, each of the other Loan Documents to which it is or will be a party, the Acquisition Documentation to which it is or will be a party and    57        each other agreement or instrument contemplated hereby or thereby to which it is or will be a party, including, in the case of the Borrower, to borrow hereunder, in the case of each Loan Party, to grant the Liens contemplated to be granted by it under the Security Documents and, in the case of each Subsidiary Guarantor, to Guarantee the Obligations as contemplated by the Guarantee and Collateral Agreement.   SECTION 3.02. Authorization; No Conflicts. The Transactions (a) have been duly authorized by all requisite corporate, partnership or limited liability company and, if required, stockholder, partner or member action and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of Holdings, the Borrower or any Subsidiary, (B) any order of any Governmental Authority or arbitrator or (C) any provision of any indenture, material agreement or other material instrument to which Holdings, the Borrower or any Subsidiary is a party or by which any of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture, agreement or other instrument or (iii) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by Holdings, the Borrower or any Subsidiary (other than Liens created under the Security Documents).   SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by each of Holdings and the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.   SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or filing with, Permit from, notice to, or any other action by, any Governmental Authority is or will be required in connection with the Transactions, except for (a) the filing of UCC financing statements and filings with the United States Patent and Trademark Office and the United States Copyright Office, (b) recordation of the Mortgages, (c) such as have been made or obtained and are in full force and effect and (d) such the failure of which to make or obtain, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.   SECTION 3.05. Financial Statements. (a)  The Borrower has heretofore furnished to the Lenders its consolidated balance sheets and statements of income, stockholder’s equity and cash flows as of and for the fiscal years ended December 31, 2004 audited by and accompanied by the opinion of KPMG LLP, independent public accountants. Such financial statements present fairly in all material respects the financial condition and results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the dates thereof. Such financial statements were prepared in accordance with GAAP applied on a consistent basis.   58        (b)                                 [RESERVED]   SECTION 3.06. No Material Adverse Change. No event, change or condition has occurred since December 31, 2003 that has caused, or could reasonably be expected to cause, a Material Adverse Effect.   SECTION 3.07. Title to Properties; Possession Under Leases. (a)  Each of Holdings, the Borrower and the Subsidiaries has good and marketable title to, or valid leasehold interests in, all its material properties and assets (including material Real Property), except for (i) defects in title that, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject thereto or materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes, (ii) Liens expressly permitted by Section 6.02 and (iii) leasehold interests that terminate in the ordinary course of business in accordance with their terms and not on account of a tenant default. Each material parcel of Real Property is free from material structural defects and all building systems contained therein are in good working order and condition, ordinary wear and tear excepted, suitable for the purposes for which they are currently being used.   (b)                                 Each of Holdings, the Borrower and the Subsidiaries, and, to the knowledge of the Borrower, each other party thereto, has complied with all obligations under all leases to which it is a party and all such leases are legal, valid, binding and in full force and effect and are enforceable in accordance with their terms, except, in each case, for such noncompliance or such failures to be in full force and effect that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Each of Holdings, the Borrower and the Subsidiaries enjoys peaceful and undisturbed possession under all such material leases. The Borrower has delivered to the Administrative Agent true, complete and correct copies of all leases (whether as landlord or tenant) of Real Property existing as of the Closing Date the Borrower has promptly after execution delivered to the Administrative Agent true, complete and correct copies of all leases (whether as landlord or tenant) of Mortgaged Properties executed at any time after the Closing Date.   (c)                                  The Borrower has obtained all material Permits, licenses, variances and certificates (including certificates of occupancy) required by applicable law to be obtained and necessary to the use and operation of each parcel of Real Property, except where the failure to have such Permit, license, certificate or variance could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.   SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all Subsidiaries, after giving effect to the Acquisition, including each Subsidiary’s exact legal name (as reflected in such Subsidiary’s certificate or articles of incorporation or other constitutive documents) and jurisdiction of incorporation or formation and the percentage ownership interest of Holdings or the Borrower (direct or indirect) therein, and identifies each Subsidiary that is Loan Party. The shares of capital stock or other Equity Interests so indicated on Schedule 3.08 are (where applicable) fully paid and non-assessable and are owned by Holdings or the Borrower, directly or indirectly, free and clear of all Liens (other than Liens expressly permitted by clauses (b) or (d) of Section 6.02).   59        SECTION 3.09. Litigation; Compliance with Laws. (a) There are no actions, suits or proceedings at law or in equity or by or before any arbitrator or Governmental Authority now pending or, to the knowledge of Holdings or the Borrower, threatened against or affecting Holdings, the Borrower or any Subsidiary or any business, property or rights of any such person (i) that involve any Loan Document or the Transactions or (ii) except as set forth on Schedule 3.09, as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.   (b)                                 Since the date of this Agreement, there has been no change in the status of the matters disclosed on Schedule 3.09 that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.   (c)                                  None of Holdings, the Borrower or any of the Subsidiaries or any of their respective material properties or assets is in violation of, nor will the continued operation of their material properties and assets as currently conducted violate, any law, rule or regulation (including any zoning, building, Environmental Law, ordinance, code or approval or any building permits) or any restrictions of record or agreements affecting the Mortgaged Property, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where, in each case in this paragraph (c), such violation or default, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.   SECTION 3.10. Agreements. None of Holdings, the Borrower or any of the Subsidiaries is in default in any manner under any provision of any agreement or instrument, or subject to any corporate restriction, that, individually or in the aggregate, has resulted or could reasonably be expected to result in a Material Adverse Effect.   SECTION 3.11. Federal Reserve Regulations. (a)  None of Holdings, the Borrower or any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.   (b)                                 None of the transactions contemplated by this Agreement (including the making of the Loans and the use of the proceeds thereof, including any refinancing or retirement of Indebtedness with the proceeds thereof) will violate or result in the violation of any of the provisions of the Regulations of the Board, including Regulation T, U or X. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.   SECTION 3.12. Investment Company Act. None of Holdings, the Borrower or any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.   SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of (a) the Term Loans funded on the Amendment Effective Date to pay the consideration for the Proposed Domestic Acquisition and fees and expenses related thereto and (b) any other Loans solely for    60        general corporate purposes, including the Proposed Domestic Acquisition, the Proposed Foreign Acquisition and other Permitted Acquisitions. The Borrower will request the issuance of Letters of Credit solely to support payment obligations incurred in the ordinary course of business by the Borrower and the Subsidiary Guarantors.   SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and each of the Subsidiaries has timely filed or timely caused to be filed all Federal, state, material local and foreign tax returns or materials required to have been filed by it and all such tax returns are correct and complete in all material respects. Each of Holdings, the Borrower and each of the Subsidiaries has timely paid or timely caused to be paid all Taxes due and payable by it and all assessments received by it, except Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower or such Subsidiary, as applicable, shall have set aside on its books adequate reserves in accordance with GAAP. Each of Holdings, the Borrower and each of the Subsidiaries has made adequate provision in accordance with GAAP for all Taxes not yet due and payable. None of the Holdings, the Borrower or any of the Subsidiaries intends to treat the Loans or any of the transactions contemplated by any Loan Document as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).   SECTION 3.15. No Material Misstatements; Acquisition Documentation. Each of Holdings and the Borrower has disclosed to the Arranger, the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which Holdings, the Borrower or any of the Subsidiaries is subject, and all other matters known to any of them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of any factual information, report, financial statement, exhibit or schedule furnished by or on behalf of Holdings, the Borrower or any Subsidiary to the Arranger, the Administrative Agent or any Lender for use in connection with the transactions contemplated by the Loan Documents or in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto, when taken as a whole, contained, contains or will contain (in each case as of the date of its delivery to the Arranger, the Administrative Agent or any Lender) any material misstatement of fact or omitted, omits or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are or will be made, not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, each of Holdings and the Borrower represents only that it acted in good faith and utilized assumptions believed by management of Holdings and the Borrower to be reasonable at the time made in the preparation of such information, report, financial statement, exhibit or schedule (it being understood by the Lenders and the Agents that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein).   SECTION 3.16. Employee Benefit Plans. Each of the Borrower and each of its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Tax Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect. The present value    61        of all benefit liabilities under each Benefit Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of December 31, 2003, exceed by more than $3,000,000 the fair market value of the assets of such Benefit Plan, and the present value of all benefit liabilities of all underfunded Benefit Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of December 31, 2003, exceed by more than $3,000,000 the fair market value of the assets of all such underfunded Benefit Plans.   SECTION 3.17. Environmental Matters. Except with respect to matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, none of Holdings, the Borrower or any of the Subsidiaries:   (a)                                  has failed to comply with any Environmental Law or to take, in a timely manner, all actions necessary to obtain, maintain, renew and comply with any Environmental Permit, and all such Environmental Permits are in full force and effect and not subject to any administrative or judicial appeal;   (b)                                 has become a party to any governmental, administrative or judicial proceeding or possesses knowledge of any such proceeding that has been threatened under Environmental Law;   (c)                                  has received written notice of, become subject to, or is aware of any facts or circumstances that could form the basis for, any Environmental Liability other than those which have been fully and finally resolved and for which no obligations remain outstanding;   (d)                                 possesses knowledge that any Mortgaged Property (A) is subject to any Lien, restriction on ownership, occupancy, use or transferability imposed pursuant to Environmental Law or (B) contains or previously contained Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in any Environmental Liability;   (e)                                  possess knowledge that there has been a Release or threat of Release of Hazardous Materials at or from the Mortgaged Properties (or from any facilities or other properties formerly owned, leased or operated by Holdings, the Borrower or any of the Subsidiaries) in violation of, or in amounts or in a manner that could give rise to liability under, any Environmental Law;   (f)                                    has generated, treated, stored, transported, or Released Hazardous Materials from the Mortgaged Properties (or from any facilities or other properties formerly owned, leased or operated by Holdings, the Borrower or any of the Subsidiaries) in violation of, or in a manner or to a location that could give rise to liability under, any Environmental Law;   (g)                                 is aware of any facts, circumstances, conditions or occurrences in respect of any of the facilities and properties owned, leased or operated that could (A) form the basis of any action, suit, claim or other judicial or administrative proceeding relating to liability under or noncompliance with Environmental Law on the part of Holdings, the    62        Borrower or any of the Subsidiaries or (B) interfere with or prevent continued compliance with Environmental Laws by Holdings, the Borrower or the Subsidiaries; or   (h)                                 has pursuant to any order, decree, judgment or agreement by which it is bound or has assumed the Environmental Liability for any Person.   SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and correct description of all insurance maintained by or on behalf of Holdings, the Borrower and the Subsidiaries as of the Closing Date. As of the Closing Date, such insurance is in full force and effect and all premiums have been duly paid. Holdings, the Borrower and the Subsidiaries are insured by financially sound and reputable insurers and such insurance is in such amounts and covering such risks and liabilities (and with such deductibles, retentions and exclusions) as are in the Borrower’s reasonable judgment in accordance with normal and prudent industry practice. None of Holdings, the Borrower or any of the Subsidiaries (a) has received notice from any insurer (or any agent thereof) that substantial capital improvements or other substantial expenditures will have to be made in order to continue such insurance, the cost of which improvements or expenditures could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (b) has any reason to believe that it will not be able to renew its existing coverage as and when such coverage expires or to obtain similar coverage from similar insurers at a cost that could not reasonably be expected to result in a Material Adverse Effect.   SECTION 3.19. Security Documents. (a)  The Guarantee and Collateral Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein in which a security interest can be created under Article 8 or 9 of the UCC and proceeds thereof and (i) in the case of the Pledged Collateral, upon the earlier of (A) when such Pledged Collateral is delivered to the Collateral Agent and (B) when financing statements in appropriate form are filed in the offices specified on Schedule 3.19(a) and (ii) in the case of all other Collateral described therein in which a security interest can be created under Article 8 or 9 of the UCC (other than Intellectual Property Collateral), when financing statements in appropriate form are filed in the offices specified on Schedule 3.19(a), the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Secured Parties in such Collateral in which a security interest can be created under Article 8 or 9 of the UCC and proceeds thereof, as security for the Obligations, in each case prior and superior to the rights of any other person (except, in the case of all Collateral other than Pledged Collateral, with respect to Liens expressly permitted by Section 6.02 and, in the case of Pledged Collateral, with respect to any Liens expressly permitted by clauses (b) or (d) of Section 6.02).   (b)                                 Each Intellectual Property Security Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Intellectual Property Collateral described therein and proceeds thereof. When each Intellectual Property Security Agreement is filed in the United States Patent and Trademark Office and the United States Copyright Office, respectively, together with financing statements in appropriate form filed in the offices specified in Schedule 3.19(a), such Intellectual Property Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in the Intellectual    63        Property Collateral in which a security interest may be perfected by filing in the United States and proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other person (except with respect to Liens expressly permitted by Section 6.02) (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a lien on registered trademarks, trademark applications and copyrights acquired by the grantors after the Closing Date).   (c)                                  Each of the Mortgages is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid, binding and enforceable Lien on, and security interest in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Property thereunder and proceeds thereof, and when the Mortgages are filed in the offices specified on Schedule 3.19(c), each such Mortgage shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereof in such Mortgaged Property and proceeds thereof, as security for the Obligations, in each case prior and superior in right to any other person (except with respect to Liens expressly permitted by Section 6.02).   SECTION 3.20. Location of Real Property. Schedule 3.20 lists completely and correctly as of the Closing Date all Real Property and the addresses thereof, indicating for each parcel whether it is owned or leased, including in the case of leased Real Property, the landlord name, lease date and lease expiration date.   SECTION 3.21. Labor Matters. As of the Closing Date, there are no strikes, lockouts or slowdowns against Holdings, the Borrower or any Subsidiary pending or, to the knowledge of Holdings or the Borrower, threatened. The hours worked by and payments made to employees of Holdings, the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters, except for such violations that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. All payments due from Holdings, the Borrower or any Subsidiary, or for which any claim may be made against Holdings, the Borrower or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of Holdings, the Borrower or such Subsidiary, except for such failures that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.   SECTION 3.22. Intellectual Property. Each of Holdings, the Borrower and each of the Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by Holdings, the Borrower and the Subsidiaries does not infringe upon the rights of any other person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.   SECTION 3.23. Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date and immediately following the making of each Loan (or other extension of credit hereunder) and after giving effect to the application of the proceeds of each Loan (or other extension of credit hereunder), subject, in the case of any guarantee of any Guarantor, to the terms of Section 2 of the Guarantee and Collateral Agreement, (a) the fair value of the assets of each Loan Party, at a fair valuation, will exceed its debts and liabilities,    64        subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each Loan Party will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) each Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) no Loan Party will have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date.   SECTION 3.24. Senior Debt. The Obligations constitute “Senior Debt” under and as defined in the Subordinated Note Documents.   ARTICLE IV   Conditions of Lending   The obligations of the Lenders to make Loans and the obligations of the Issuing Bank to issue Letters of Credit are subject to the satisfaction of the following conditions:   SECTION 4.01. All Credit Events. On the date of each Borrowing, including each Borrowing of a Swingline Loan but excluding the conversion of a Eurodollar Borrowing to an ABR Borrowing (or vice versa) or the continuation or conversion of the Interest Period of a Eurodollar Borrowing into another permitted Interest Period, and on the date of each issuance, amendment, extension or renewal of a Letter of Credit (each such event being called a “Credit Event”):   (a)                                  The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.03) or, in the case of the issuance, amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance, amendment, extension or renewal of such Letter of Credit as required by Section 2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline Lender and the Administrative Agent shall have received a notice requesting such Swingline Loan as required by Section 2.22(b).   (b)                                 The representations and warranties set forth in each Loan Document shall be true and correct in all material respects on and as of the date of such Credit Event with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date.   (c)                                  At the time of and immediately after such Credit Event, no Event of Default or Default shall have occurred and be continuing.   Each Credit Event shall be deemed to constitute a joint and several representation and warranty by each of Holdings and the Borrower on the date of such Credit Event as to the matters specified in paragraphs (b) and (c) of this Section 4.01.   65        SECTION 4.02. First Credit Event. On the Closing Date:   (a)                                  The Administrative Agent shall have received a favorable written opinion dated as of the Closing Date of (i) Mayer, Brown, Rowe & Maw LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and (ii) Baker Donelson Bearman Caldwell & Berkowitz, Mississippi real estate counsel for Holdings, the Borrower and the Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent, and Holdings, the Borrower and the Subsidiaries hereby request such counsel to deliver such opinions.   (b)                                 The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party, in the case of the Borrower, the borrowings hereunder, in the case of each Loan Party, the granting of the Liens contemplated to be granted by it under the Security Documents and, in the case of each Subsidiary Guarantor, the Guaranteeing of the Obligations as contemplated by the Guarantee and Collateral Agreement, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Administrative Agent, the Arranger, the Issuing Bank or the Lenders may reasonably request.   (c)                                  The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.   (d)                                 The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of each of Holdings and the Borrower, (ii) the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each of Holdings and the Borrower and each Subsidiary Guarantor, (iii) a Mortgage covering each of the Mortgaged Properties (other than the Post Closing Mortgaged Property), executed and delivered    66        by a duly authorized officer of each Loan Party thereto, (iv) the Intellectual Property Security Agreements, executed and delivered by a duly authorized officer of each Loan Party a party thereto, (v) if requested by any Lender pursuant to Section 2.04, a promissory note or notes conforming to the requirements of such Section and executed and delivered by a duly authorized officer of the Borrower and (vi) a Lender Addendum executed and delivered by each Lender and accepted by the Borrower.   (e)                                  The Collateral Agent, for the ratable benefit of the Secured Parties, shall have been granted on the Closing Date first priority perfected Liens on the Collateral (subject, in the case of all Collateral other than Pledged Collateral, only to Liens expressly permitted by Section 6.02 and, in the case of Pledged Collateral, only to Liens expressly permitted by clauses (b) or (d) of Section 6.02) and customary Guarantees from the Subsidiary Guarantors. The Pledged Collateral shall have been duly and validly pledged under the Guarantee and Collateral Agreement to the Collateral Agent, for the ratable benefit of the Secured Parties, and certificates representing such Pledged Collateral, accompanied by instruments of transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent. With respect to the Mortgaged Property, the Collateral Agent shall have received such reports, documents and agreements (including title insurance, flood insurance and surveys) as the Collateral Agent shall reasonably request and that are customarily delivered in connection with security interests in real property.   (f)                                    The Collateral Agent shall have received a duly executed Perfection Certificate dated on or prior to the Closing Date. The Collateral Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to Holdings, the Borrower and those of the Subsidiaries that shall be Subsidiary Guarantors or shall otherwise have assets that are included in the Collateral, and such search shall reveal no Liens on any of the assets of Holdings, the Borrower or any of such Subsidiaries except, in the case of Collateral other than Pledged Collateral, for Liens expressly permitted by Section 6.02 and except for Liens to be discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Collateral Agent.   (g)                                 The Acquisition and the Acquisition Transactions shall be consummated simultaneously with the initial funding of the Loans hereunder in accordance with applicable law; the Purchase Agreement and all other related documentation shall be reasonably satisfactory to the Administrative Agent; the Equity Contribution shall have been made on terms reasonably acceptable to the Administrative Agent; the Administrative Agent shall be satisfied with the capitalization, structure and equity ownership of Holdings and the Borrower after giving effect to the Transactions; and the Administrative Agent shall be reasonably satisfied with the arrangements to retain the senior management team (it being agreed that the final execution copy of the Purchase Agreement, dated as of the date of the Commitment Letter, is acceptable).   (h)                                 The Borrower shall have received not less than $125,000,000 in gross cash proceeds from the issuance of the Subordinated Notes in a public offering or in a Rule 144A or other private placement. The terms and conditions of the Subordinated Notes (including but not limited to terms and conditions relating to the interest rate, fees,    67        amortization, maturity, subordination, covenants, events of default and remedies) shall be reasonably satisfactory in all respects to the Administrative Agent.   (i)                                     After giving effect to the Transactions and the other transactions contemplated hereby, Holdings and its subsidiaries shall have outstanding no Indebtedness or preferred stock other than (i) the Loans and other extensions of credit hereunder, (ii) the Subordinated Notes and (iii) other Indebtedness to be agreed upon by the Borrower and the Administrative Agent. The Borrower (A) shall have redeemed, defeased or otherwise acquired or retired all of its outstanding 10.875% Senior Subordinated Notes due 2008 on terms reasonably satisfactory to the Administrative Agent and (B) shall have repaid all amounts outstanding under the Existing Credit Facility. The Administrative Agent shall have received satisfactory evidence that (i) the Existing Credit Facility shall have been terminated, all amounts then due and payable or to become due and payable (other than indemnification obligations not yet having been requested) thereunder shall have been paid in full and all commitments and reimbursement obligations thereunder shall have been terminated and (ii) satisfactory arrangements shall have been made for the termination of all Liens granted in connection therewith, in each case on terms and conditions reasonably satisfactory to the Administrative Agent.   (j)                                     The Administrative Agent shall have received (i) the financial statements described in Section 3.05 and (ii) U.S. GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for (A) each subsequent fiscal quarter ended 30 days before the Closing Date and (B) each fiscal month after the most recent 2004 fiscal quarter for which financial statements were received by the Administrative Agent as described above and ended 30 days before the Closing Date.   (k)                                  The Administrative Agent shall be satisfied that the Borrower’s pro forma Consolidated EBITDA for the four-fiscal quarter period most recently ended prior to the Closing Date (prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended, to give pro forma effect to the Transactions as if they had occurred at the beginning of such four-fiscal quarter period, together with such other adjustments as shall be reasonably satisfactory to the Administrative Agent in an amount not to exceed $2,100,000) (such pro forma Consolidated EBITDA, “Pro Forma EBITDA”) shall not be less than $35,000,000.   (l)                                     The Administrative Agent shall be satisfied (i) that the Borrower’s ratio of Senior Secured Debt on the Closing Date to Pro Forma EBITDA shall be no more than 3.1 to 1.0 and (ii)that the Borrower’s ratio of Funded Debt on the Closing Date to Pro Forma EBITDA shall be no more than 6.50 to 1.0.   (m)                               The Administrative Agent shall have received projections of Holdings and its subsidiaries for the years 2004 through 2010 and for the quarters beginning with the first fiscal quarter of 2004 and through the fourth fiscal quarter of 2004, in form and substance satisfactory to the Administrative Agent.   68        (n)                                 The Administrative Agent shall have received a certificate from the chief financial officer of Holdings certifying that Holdings, the Borrower and each of the Subsidiary Guarantors, after giving effect to the Transactions and the other transactions contemplated hereby, are solvent.   (o)                                 All material governmental and third party consents and approvals with respect to the Transactions and the other transactions contemplated hereby to the extent required shall have been obtained, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Transactions or the other transactions contemplated hereby.   (p)                                 The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act.   SECTION 4.03. Amendment Effective Date. The obligations of the Lenders, the Issuing Bank and the Administrative Agent under this Agreement shall become effective upon the satisfaction of the following conditions:   (a)                                  The Administrative Agent shall have received a favorable written opinion dated as of the Amendment Effective Date of Mayer, Brown, Rowe & Maw LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, and Holdings, the Borrower and the Subsidiaries hereby request such counsel to deliver such opinion.   (b)                                 The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Amendment Effective Date, (B) in the case of the Borrower, that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents to which it is a party, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer of the Borrower executing any Loan Document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen    69        signature of the Secretary or Assistant Secretary of the Borrower executing the certificate pursuant to (ii) above.   (c)                                  The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.   (d)                                 The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of each of Holdings and the Borrower and (ii) an Affirmation and Consent to the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each of Holdings, the Borrower and each Subsidiary Guarantor.   SECTION 4.04. Funding Date. On the Funding Date:   (a)                                  The Proposed Domestic Acquisition shall be consummated simultaneously with the funding of the Additional Term Loans in accordance with applicable law; all documentation related to the Proposed Domestic Acquisition shall be reasonably satisfactory to the Administrative Agent; and the Administrative Agent shall be satisfied with the capitalization, structure and equity ownership of Holdings and the Borrower after giving effect to the Transactions.   (b)                                 The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statements of income and cash flows of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period, prepared after giving effect to the Proposed Domestic Acquisition as if such acquisition had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), which financial statements shall not be materially inconsistent with the forecasts previously provided to the Administrative Agent.   (c)                                  The Administrative Agent shall have received a duly executed and delivered notarized modification to each existing Mortgage in form and substance satisfactory to the Administrative Agent  and, with respect to each such mortgage modification, endorsements to the title insurance policy insuring the Mortgage being so modified in form and substance reasonably acceptable to the Administrative Agent.   (d)                                 All material governmental and third party consents and approvals with respect to the Proposed Domestic Acquisition and the other transactions contemplated thereby to the extent required shall have been obtained, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Proposed Domestic Acquisition or the other transactions contemplated thereby.   (e)                                  Credit Suisse shall have received all fees required to be paid on or before the Funding Date pursuant to the Amendment Fee Letter and the Administrative Agent    70        shall have been reimbursed by the Borrower for its reasonable out-of-pocket expenses, as set forth in the Amendment Fee Letter, in connection with this Agreement, including the reasonable fees and disbursements of counsel.   ARTICLE V   Affirmative Covenants    Each of Holdings and the Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, each of Holdings and the Borrower will, and will cause each of the Subsidiaries to:   SECTION 5.01. Existence; Businesses and Properties. (a)  Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except as otherwise expressly permitted under Section 6.05.   (b)                                 Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct of its business; maintain and operate such business in substantially the manner in which it is presently conducted and operated; comply in all material respects with all applicable laws, rules, regulations and decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted; and at all times maintain and preserve all property material to the conduct of such business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted at all times.   SECTION 5.02. Insurance. Keep its insurable properties adequately insured at all times by financially sound and reputable insurers; maintain such other insurance, to such extent and against such risks (and with such deductibles, retentions and exclusions) as is customary with companies in the same or similar businesses operating in the same or similar locations, including liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it; maintain such other insurance as may be required by law; and maintain such other insurance as otherwise required by the Security Documents.   SECTION 5.03. Obligations and Taxes. Pay its Material Indebtedness promptly and in accordance with their terms and pay and discharge promptly when due all material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, could reasonably be expected to give rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required with respect to any such tax, assessment,    71        charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Borrower or the applicable Subsidiary shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested obligation, tax, assessment or charge and enforcement of a Lien and, in the case of a Mortgaged Property, there is no reasonable risk of forfeiture of such property.   SECTION 5.04. Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent for distribution to each Lender:   (a)                                  within 90 days after the end of each fiscal year (beginning with the fiscal year ending on December 31, 2004), its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;   (b)                                 within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;   (c)                                  (i) concurrently with any delivery of financial statements under paragraph (a) above, a letter from the accounting firm opining on such statements (which letter may be limited to accounting matters or other items that independent certified public accountants are permitted to cover in such letters pursuant to their professional standards and customs and may disclaim responsibility for legal interpretations) stating whether, in connection with their audit examination, anything has come to their attention which would cause them to believe that there has been a violation of any of the provisions of Section 6.10, 6.11, 6.12 or 6.13 of this Agreement or, if any such a violation has occurred, specifying the nature thereof; provided that no such letter shall be required to the extent that (x) it is prohibited at such time by the then current recommendations of the American Institute of Certified Public Accountants or any other applicable accounting governing body or (y) such accounting firm has at such time a firm-wide policy prohibiting the delivery of such a letter and such firm does not at such time provide such letters in connection with any other credit agreements, (ii) concurrently with any delivery    72        of financial statements under paragraph (a) above, a certificate of a Financial Officer of the Borrower identifying the assets transferred to the Foreign Target during such fiscal year and setting forth the Borrower’s election pursuant to paragraph (b)(i)(II)(b)(i) of Section 6.05 and (iii) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower (A) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11, 6.12 and 6.13 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above with respect to the fiscal year ending December 31, 2005 and each fiscal year thereafter, setting forth the Borrower’s calculation of Excess Cash Flow;   (d)                                 at least 90 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such following fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;   (e)                                  promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission;   (f)                                    promptly after the receipt thereof by Holdings, the Borrower or any of the Subsidiaries, a copy of any “management letter” (in final form) received by any such person from its certified public accountants and the management’s response thereto; and   (g)                                 promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request.   SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent, the Issuing Bank and each Lender written notice of the following promptly after any Responsible Officer obtains knowledge thereof:   (a)                                  any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;   (b)                                 the filing or commencement of, or any threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any arbitrator or Governmental Authority, against Holdings, the Borrower or any Subsidiary that involves, in the Borrower’s good faith judgment, a reasonable    73        possibility of an adverse determination and which, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and   (c)                                  the occurrence of any ERISA Event described in clause (b) of the definition thereof or any other ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of Holdings, the Borrower and the Subsidiaries in an aggregate amount of $5,000,000 or greater; and   (d)                                 any development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.   SECTION 5.06. Information Regarding Collateral. (a)  Furnish to each of the Administrative Agent and the Collateral Agent (i) prompt written notice of any change (A) in any Loan Party’s corporate name, (B) in any Loan Party’s corporate structure or (C) in any Loan Party’s Federal Taxpayer Identification Number and (ii) on the date of delivery of financial statements and certificates required by Section 5.04(a), written notice of any change, if any, in the location of Collateral with a fair market value (as determined by the Borrower) in excess of $1,000,000. Each of Holdings and the Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made (or will have been made within 30 days of such change) under the UCC or otherwise and all other actions have been taken (or will have been taken within 30 days of such change) that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral. Each of Holdings and the Borrower also agrees promptly to notify each of the Administrative Agent and the Collateral Agent if any material portion of the Collateral is damaged or destroyed.   (b)                                 In the case of the Borrower, each year, unless otherwise agreed by the Administrative Agent to extend such time, at the time of delivery of the annual financial statements with respect to the preceding fiscal year pursuant to Section 5.04(a), deliver to the Administrative Agent a certificate of a Financial Officer setting forth the information required pursuant to Section I of the Perfection Certificate.   SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Keep proper books of record and account in which full, true and correct entries in conformity with GAAP and all requirements of law are made of all dealings and transactions in relation to its business and activities. Each of Holdings and the Borrower will, and will cause each of its subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender to visit and inspect (including with respect to environmental matters) the financial records and the properties of Holdings or the Borrower, as the case may be, or any of its subsidiaries at reasonable times (but, in the case of any Lenders, not more than one time each year for all Lenders and at such Lenders’ expense, unless an Event of Default is continuing) and to make extracts from and copies of such financial records, and permit any representatives designated by the Administrative Agent or any Lender (acting through the Administrative Agent) to discuss the affairs, finances and condition of Holdings or the Borrower, as the case may be, or any of its subsidiaries with the officers thereof and independent accountants therefor; provided that the Borrower shall be given an opportunity to have a designated representative present at any    74        discussions with such independent accountants if available at such time and shall be given at least five Business Days’ notice of such discussions.   SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and request the issuance of Letters of Credit only for the purposes set forth in Section 3.13.   SECTION 5.09. Additional Collateral, etc. (a)  With respect to any Collateral acquired after the Closing Date or, in the case of inventory or equipment, any material Collateral moved after the Closing Date by the Borrower or any other Loan Party (other than any Collateral described in paragraphs (b), (c) or (d) of this Section) as to which the Collateral Agent, for the benefit of the Secured Parties, does not as a result of such acquisition or move have a first priority perfected security interest (subject to Liens expressly permitted by Section 6.02), promptly (and, in any event, within 20 days following the date of such acquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other Security Documents as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such Collateral and (ii) promptly following the Administrative Agent’s or the Collateral Agent’s request, take all actions necessary or advisable to grant to, or continue on behalf of, the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens expressly permitted by Section 6.02) in such Collateral, including the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent.   (b)                                 With respect to any (x) fee interest in any Collateral consisting of material Real Property (as determined by Administrative Agent and (y) lease of Collateral consisting of Real Property with an annual base rent in excess of $2,500,000 after the expiration of any rent abatement or free rent period, acquired or leased after the Closing Date by the Borrower or any other Loan Party and promptly (and, in any event, within 20 days following the date of such acquisition, in the case of clause (x)) (i) execute and deliver or, in the case of clause (y), use commercially reasonable efforts to execute and deliver, a first priority (subject to Liens expressly permitted by Section 6.02) Mortgage in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such Real Property and complying with the provisions herein and in the Security Documents, (ii) provide or, in the case of clause (y), use commercially reasonable efforts to provide, the Secured Parties with title and extended coverage insurance in an amount at least equal to the purchase price of such Real Property (or such other amount as the Administrative Agent shall reasonably specify), surveys, and if applicable, flood insurance, lease estoppel certificates or, in the event that the Administrative Agent has determined that a recorded memorandum of lease or an amendment of lease is necessary or appropriate in order to make any such leased Real Property mortgageable, evidence of such recordation or a copy of such fully executed and binding lease amendment, all as may be reasonably requested by the Administrative Agent, (iii) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and the Collateral Agent and (iv) deliver to the Administrative Agent a notice identifying, and upon the Administrative Agent’s request and subject to any contractual restrictions contained therein, provide a copy of, the consultant’s reports,    75        environmental site assessments or other documents relied upon by the Borrower or any other Loan Party to determine that any such Real Property included in such Collateral does not contain Hazardous Materials of a form or type or in a quantity or location that could reasonably be expected to result in a material Environmental Liability. Holdings or the Borrower shall use commercially reasonable efforts to deliver to the Administrative Agent estoppel certificates from the landlord with respect to each leased Mortgaged Property, confirming the nonexistence of any default thereunder and certain other information with respect to such lease, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent.   (c)                                  With respect to any Subsidiary (other than an Excluded Foreign Subsidiary or a Receivables Subsidiary) created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary at any time after the Closing Date) by the Borrower or any of the Subsidiaries, promptly (and, in any event, within 20 days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the Guarantee and Collateral Agreement as the Administrative Agent or the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a valid, perfected first priority security interest (subject to Liens expressly permitted by clauses (b) or (d) of Section 6.02) in the Equity Interests in such new Subsidiary that are owned by the Borrower or any of the Subsidiaries, (ii) deliver to the Collateral Agent the certificates, if any, representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement (and provide Guarantees of the Obligations) and the Intellectual Property Security Agreements and (B) to take such actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens expressly permitted by Section 6.02) in the Collateral described in the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement with respect to such new Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement, the Intellectual Property Security Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and the Collateral Agent.   (d)                                 With respect to any Excluded Foreign Subsidiary created or acquired after the Closing Date directly by the Borrower or any of its Domestic Subsidiaries, promptly (and, in any event, within 60 days following such creation or the date of such acquisition) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent or the Collateral Agent deems necessary or advisable in order to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Liens expressly permitted by clauses (b) or (d) of Section 6.02) in the Equity Interests in such new Excluded Foreign Subsidiary that is directly owned by the Borrower or any of its Domestic Subsidiaries (provided that in no event shall more    76        than 65% of the total outstanding voting Equity Interests in any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Collateral Agent the certificates (if applicable) representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Domestic Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent or the Collateral Agent, desirable to perfect the security interest of the Collateral Agent thereon and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent and the Collateral Agent.   SECTION 5.10. Further Assurances. From time to time duly authorize, execute and deliver, or cause to be duly authorized, executed and delivered, such additional instruments, certificates, financing statements, agreements or documents, and take all such actions (including filing UCC and other financing statements), as the Administrative Agent or the Collateral Agent may reasonably request, for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of the Administrative Agent, the Collateral Agent and the Secured Parties with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds or products thereof or with respect to any other property or assets hereafter acquired by Holdings, the Borrower or any Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by the Administrative Agent, the Collateral Agent or any Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording, qualification or authorization of any Governmental Authority, each of Holdings and the Borrower will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that the Administrative Agent, the Collateral Agent or such Lender may be required to obtain from Holdings, the Borrower or any of the Subsidiaries for such governmental consent, approval, recording, qualification or authorization.   SECTION 5.11. Interest Rate Protection. The Borrower shall ensure that for at least three years following the Closing Date no less than 50% of the Borrower’s long-term Indebtedness (excluding any Revolving Loans, Swingline Loans and Letters of Credit) effectively bears interest at a fixed rate, either by its terms or through the Borrower entering into, as promptly as practicable (and in any event no later than the 180th day after the Closing Date), Hedging Agreements reasonably acceptable to the Administrative Agent.   ARTICLE VI   Negative Covenants    Each of Holdings and the Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been cancelled or have expired and all amounts drawn thereunder have been reimbursed in full, neither Holdings nor the Borrower will, nor will it cause or permit any of the Subsidiaries to:   77        SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:   (a)                                  Indebtedness existing on the Closing Date and set forth in Schedule 6.01 and any Permitted Refinancing Indebtedness in respect of any such Indebtedness;   (b)                                 Indebtedness created hereunder and under the other Loan Documents (including any Incremental Term Loans);   (c)                                  unsecured intercompany Indebtedness of Holdings, the Borrower and the Subsidiaries to the extent permitted by Section 6.04(a) or Section 6.04(i) so long as such Indebtedness is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;   (d)                                 Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets; provided that (i) such original Indebtedness is incurred prior to or within 120 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations and Synthetic Lease Obligations incurred pursuant to Section 6.01(e), shall not exceed $25,000,000 at any time outstanding;   (e)                                  Capital Lease Obligations and Synthetic Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not exceeding $25,000,000 at any time outstanding;   (f)                                    Indebtedness of the Borrower under the Subordinated Notes and Indebtedness of the Subsidiary Guarantors under any Guarantees in respect of the Subordinated Notes and any Permitted Refinancing Indebtedness in respect of any such Indebtedness;   (g)                                 Indebtedness of any person that becomes a Subsidiary after the Closing Date hereof; provided that (i) such Indebtedness exists at the time such person becomes a Subsidiary and is not created in contemplation of or in connection with such person becoming a Subsidiary, (ii) immediately before and after such person becomes a Subsidiary, no Default or Event of Default shall have occurred and be continuing and (iii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(g) shall not exceed $7,500,000 at any time outstanding;   (h)                                 unsecured Indebtedness of the Borrower or the Subsidiary Guarantors that is subordinated to the Obligations to the same degree (or to a greater degree) as the Subordinated Notes, in each case (i) that does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement) prior to the date that is six months after the Term Loan Maturity Date and (ii) that is not exchangeable or convertible into Indebtedness of the    78        Borrower or any Subsidiary (other than other Indebtedness permitted by this clause) or any preferred stock or other Equity Interest (other than common equity); provided that either (A) the Net Cash Proceeds thereof are used to refinance Term Loans or refinance and permanently reduce commitments in respect of Revolving Loans or (B) the proceeds thereof are used to consummate a Permitted Acquisition or an Investment permitted pursuant to Section 6.04(k) (including financing the cash consideration payable in connection with a Permitted Acquisition or such an Investment or refinancing any Indebtedness of the Acquired Entity and the payment of related fees and expenses); provided, further, that the aggregate principal amount of Indebtedness permitted by clause (B) of this Section 6.01(h) shall not exceed $5,000,000 at any time outstanding;   (i)                                     Indebtedness under performance, surety, appeal or indemnity bonds or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business;   (j)                                     Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is promptly covered by the Borrower or any Subsidiary;   (k)                                  Indebtedness of a Receivables Subsidiary in respect of Securitization Transactions solely to the extent the Net Cash Proceeds thereof are used to refinance Term Loans or refinance and permanently reduce commitments in respect of Revolving Loans; provided that the aggregate principal amount of Indebtedness permitted by this Section 6.01(k) shall not exceed $15,000,000 at any time outstanding;   (l)                                     Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount not exceeding $12,500,000 at any time outstanding;   (m)                               to the extent constituting Indebtedness of the Borrower or any Subsidiary, customary indemnification or deferred purchase price adjustments, including wholly contingent earn-outs or similar obligations, in each case incurred in connection with the acquisition of any business or assets, including Equity Interests, permitted to be acquired hereunder; provided that the maximum aggregate liability in respect of all such obligations permitted by this clause (m) shall not exceed 25% of the purchase price for such acquisitions;   (n)                                 Permitted Holdings Indebtedness; and   (o)                                 other Indebtedness (including subordinated Indebtedness) of the Borrower or the Subsidiaries in an aggregate principal amount not exceeding $20,000,000 at any time outstanding; provided that the aggregate principal amount of such Indebtedness permitted by this Section 6.01(o) that is incurred by a Loan Party that is secured shall not exceed $2,000,000 at any time outstanding.   SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or assets (including Equity Interests or other securities of any person, including any    79        Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except:   (a)                                  Liens on property or assets of the Borrower and the Subsidiaries existing on the Closing Date and set forth in Schedule 6.02; provided that such Liens shall secure only those obligations which they secure on the Closing Date and refinancings, extensions, renewals and replacements thereof permitted hereunder;   (b)                                 any Lien created under the Loan Documents (including in respect of Hedging Agreements that are permitted by the terms of the Security Documents to be secured thereunder);   (c)                                  any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such Lien does not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien does not materially interfere with the use, occupancy and operation of any Mortgaged Property;   (d)                                 Liens for taxes not yet due or which are being contested in compliance with Section 5.03;   (e)                                  carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business and securing obligations that are not overdue for a period of more than 30 days or which are being contested in compliance with Section 5.03;   (f)                                    pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;   (g)                                 pledges and deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;   (h)                                 zoning restrictions, easements, rights-of-way, restrictions on use of Real Property and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of the Subsidiaries or the ability of the Borrower or any of the Subsidiaries to utilize such property for its intended purpose;   (i)                                     purchase money security interests in Real Property, improvements thereto or other fixed or capital assets hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the Indebtedness secured thereby is created, within 90 days after such acquisition (or    80        construction) and (iii) such security interests do not apply to any other property or assets of the Borrower or any Subsidiary;   (j)                                     judgment Liens securing judgments not constituting an Event of Default under Article VII;   (k)                                  any interest or title of a lessor, sublessor or licensor under any lease (including a capital lease or synthetic lease) or license entered into by the Borrower or any of its Subsidiaries in the ordinary course of business and covering only the assets so leased or licensed, as the case may be, and including any Liens arising from precautionary UCC financing statements filed under any such lease;   (l)                                     Liens on cash deposits and other funds maintained with a depositary institution, in each case arising in the ordinary course of business by virtue of any statutory or common law provision relating to banker’s liens, including Section 4-210 of the UCC;   (m)                               Liens of sellers of goods to the Borrower or any of the Subsidiaries arising under Section 2-502 of the UCC in the ordinary course of business; provided that such Liens apply only to the goods sold and secure only the unpaid purchase price for such goods and related expenses;   (n)                                 Liens in favor of customs and revenue authorities arising as a matter of law and securing payment of customs duties in connection with the importation of goods;   (o)                                 Liens arising from an agreement by the Borrower or any of the Subsidiaries to Dispose of any asset in accordance with the provisions hereof; provided that such Liens apply only to the assets to be Disposed of;   (p)                                 Liens in connection with Securitization Transactions permitted by Section 6.01(k) on the assets that are the subject of such Securitization Transactions; provided that such Liens apply only to assets in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable;   (q)                                                                                      Liens on assets owned or leased by the Foreign Target securing not more than $12,500,000 of Indebtedness at any time outstanding; and   (r)                                    Liens not otherwise permitted by this Section 6.02 so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market value of the assets subject thereto exceeds $2,000,000 at any one time.   SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal or mixed, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred unless (a) the sale of such property    81        is permitted by Section 6.05 and (b) any Capital Lease Obligations, Synthetic Lease Obligations or Liens arising in connection therewith are permitted by Sections 6.01 and 6.02, respectively.   SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire any Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or advances or capital contributions to, or make or permit to exist any investment or any other interest in, any other person (all of the foregoing, “Investments”), except:   (a)                                  (i) Investments by Holdings, the Borrower and the Subsidiaries existing on the Closing Date in the Equity Interests of, or in the form of loans or advances to, the Borrower and the Subsidiaries and (ii) additional Investments by Holdings, the Borrower and the Subsidiaries in the Equity Interests of, or in the form of loans or advances to, the Borrower and the Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Guarantee and Collateral Agreement (subject to the limitation referred to in Section 5.09(d) in the case of any Excluded Foreign Subsidiary), (B) in the case of clause (ii), the aggregate amount of additional Investments by Loan Parties in Subsidiaries that are not Subsidiary Guarantors (including the Foreign Target) shall not exceed $30,000,000 (unless otherwise reduced by the amount of Asset Sales to the Foreign Target pursuant to Section 6.05(b)(i)) at any time outstanding and (C) if such Investment shall be in the form of a loan or advance, such loan or advance shall be unsecured and subordinated to the Obligations pursuant to an Affiliate Subordination Agreement and, if such loan or advance shall be made by a Loan Party, it shall be evidenced by a promissory note pledged to the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the Guarantee and Collateral Agreement (provided that this clause (C) shall not apply to the loans and advances made and to be made to Jineng pursuant to the commitments existing on the Closing Date or to the Foreign Target);   (b)                                 Permitted Investments;   (c)                                  Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;   (d)                                 the Borrower and the Subsidiaries may make loans and advances in the ordinary course of business to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $2,000,000;   (e)                                  the Acquisition and Permitted Acquisitions;   (f)                                    Investments existing on the Closing Date and set forth on Schedule 6.04;   (g)                                 extensions of trade credit in the ordinary course of business;   (h)                                 Investments made as a result of the receipt of non-cash consideration from a Disposition of any asset in compliance with Section 6.05;   82        (i)                                     intercompany loans and advances to Holdings to the extent that the Borrower may pay dividends to Holdings pursuant to Section 6.06 (and in lieu of paying such dividends); provided that such intercompany loans and advances (i) shall be made for the purposes, and shall be subject to all the applicable limitations set forth in, Section 6.06 and (ii) shall be unsecured and subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;   (j)                                     Investments made by any person that becomes a Subsidiary after the Closing Date; provided that (i) such Investments exist at the time such person becomes a Subsidiary and are not made in contemplation of or in connection with such person becoming a Subsidiary and (ii) at the time such person becomes a Subsidiary no portion of such Investments may represent a commitment or other obligation to make or fund any additional Investment that has not been made on funded at such time; and   (k)                                  in addition to Investments permitted by paragraphs (a) through (j) above, additional Investments by the Borrower and the Subsidiaries so long as the aggregate amount invested, loaned or advanced pursuant to this clause (determined without regard to any write-downs or write-offs of such investments, loans and advances) does not exceed $15,000,000 in the aggregate.   SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. (a)  Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or liquidate or dissolve, or Dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person, except for (i) the purchase and sale by the Borrower or any Subsidiary of inventory or the Disposition of obsolete or worn-out assets, assets that are no longer useful or scrap, in each case in the ordinary course of business, (ii) the sale or discount by the Borrower or any Subsidiary, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction), (iii) sales of accounts receivable or interests therein and other customary assets in Securitization Transactions permitted under Section 6.01(k), (iv) the Disposition by any Subsidiary that is not a Loan Party of its assets that do not constitute Collateral in connection with a foreclosure by the applicable lenders with respect to any Indebtedness of such Subsidiary to the extent that such assets are collateral security for such Indebtedness, (v) the licensing of intellectual property in the ordinary course of business, (vi) the settlement, release or surrender of tort or other litigation claims and (vii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (x) the merger or consolidation of any wholly-owned Subsidiary into or with the Borrower in a transaction in which the Borrower is the surviving corporation, (y) the merger or consolidation of any Subsidiary into or with any other Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that (A) the Borrower shall own, directly or indirectly, beneficially and of record, Equity Interests representing a percentage of the    83        aggregate ordinary voting power and aggregate equity value represented by the issued and outstanding Equity Interest in such surviving Subsidiary that is equal to or greater than the percentage of the aggregate ordinary voting power and the aggregate equity value represented by the issued and outstanding Equity Interests that were owned immediately prior to such merger or consolidation, directly or indirectly, beneficially and of record, by the Borrower in such other merged or consolidated Subsidiary, (B) if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party, (C) if any party to any such transaction is a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary and (D) if any person other than the Borrower or a wholly-owned Subsidiary receives any consideration in connection with such transaction, such transaction shall comply with the provisions of Section 6.04, if applicable) and (z) Permitted Acquisitions or other Investments by the Borrower or any Subsidiary that are expressly permitted by Section 6.04.   (b)                                 Engage in any Asset Sale otherwise permitted under paragraph (a) above unless   (i)                                     in the case of other than Exempted Asset Sales, (A) such Asset Sale is for consideration at least 75% of which is cash (and no portion of the remaining consideration shall be in the form of Indebtedness of the Borrower or any Subsidiary), (B) such consideration is at least equal to the fair market value of the assets being Disposed of and (C) the fair market value of all assets Disposed of pursuant to this paragraph (b)(i) shall not exceed   (I)                                    $2,000,000 in any fiscal year, or   (II)                                (a) in the case of other than the Foreign Target, $7,500,000 in the aggregate and (b) in the case of the Foreign Target, in the aggregate, an amount equal to (i) at the Borrower’s election (as set forth in a certificate delivered to the Administrative Agent pursuant to Section 5.04(c)(ii)), either (x) the aggregate amount of Capital Expenditures permitted for the Foreign Target pursuant to Section 6.10(b) or (y) the amount of Investments made to the Foreign Target pursuant to Section 6.04(a) minus (ii) the fair market value (determined in good faith by the Borrower) of assets transferred to the Foreign Target; or   (ii)                                  such Asset Sale is a Permitted Asset Swap; or   (iii)                               in the case of Exempted Asset Sales, the aggregate cash consideration and the value (determined in good faith by the Borrower) of the non-cash consideration received does not exceed $5,000,000.   SECTION 6.06. Restricted Payments; Restrictive Agreements. (a)  Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary may declare and pay dividends or make other distributions, including in the form of additional Equity Interests, ratably to its equity holders, (ii) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may, or may pay dividends or make other distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock    84        options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees or make customary and reasonable salary and bonus and other benefits payments to officers, employees and consultants of Holdings or payments of customary fees and expenses of members of the board of directors of Holdings in an aggregate amount for this clause (ii) not to exceed $1,500,000 in any fiscal year (it being agreed that any such amount not utilized in any fiscal year may be carried forward and utilized in any subsequent fiscal year so long as the aggregate amount of such repurchases or payments pursuant to this clause (ii) shall not exceed $3,000,000 in any fiscal year), (iii) the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.04(i) for such purpose, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries pursuant to the Tax Sharing Agreement, as such agreement exists on the Closing Date and with such changes after the Closing Date as may be approved by the Administrative Agent; provided that all Restricted Payments made to Holdings pursuant to clause (iii) shall be used by Holdings for the purpose specified herein within 20 days of the receipt thereof, (iv) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends or make other distributions to Holdings so that Holdings may pay those fees, costs and expenses that are expressly permitted by clause (c) of Section 6.07 and (v) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to its equity holders so long as (A) the Borrower would be in compliance with the covenants set forth in Sections 6.11 and 6.13 and the Leverage Ratio would be 3.25 to 1.00 or less, in each case, as of the most recently completed period ending prior to such transaction for which the financial statements and certificates required by Section 5.04(a) or 5.04(b) were required to be delivered or for which comparable financial statements have been filed with or furnished to the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period and (B) at the time of, after giving effect to, such transaction, there shall be at least $7,500,000 of unused and available Revolving Credit Commitments.   (b)                                 Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary or its assets pending such sale, provided such restrictions and conditions apply only to the Subsidiary or its assets that are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to    85        restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by the Subordinated Note Documents as in effect on the Closing Date and (F) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.   SECTION 6.07. Transactions with Affiliates. Except for transactions by or among Loan Parties or transactions with the Foreign Target pursuant to Sections 6.01, 6.04, 6.05 and 6.10, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except that (a) Holdings, the Borrower or any Subsidiary may engage in any of the foregoing transactions in the ordinary course of business at prices and on terms and conditions not less favorable to Holdings, the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) Restricted Payments may be made to the extent provided in Section 6.06, (c) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, fees may be paid to the Sponsor or any of its Affiliates in an aggregate amount not to exceed $1,500,000 in any fiscal year plus all reasonable out-of-pocket costs and expenses and indemnification amounts incurred by the Sponsor or any such Affiliate, in each case in connection with their performance of management, consulting, monitoring, financial advisory or other services with respect to Holdings, the Borrower and the Subsidiaries, (d) payments may be made under the Tax Sharing Agreement, as such agreement exists on the Closing Date and with such changes after the Closing Date as may be approved by the Administrative Agent, and (e) the Transactions may be consummated, including the making of any payments on the Closing Date in connection therewith.   SECTION 6.08. Business of Holdings, the Borrower and Subsidiaries; Limitation on Hedging Agreements. (a)  With respect to Holdings, engage in any business activities or have any assets or liabilities other than (i) its ownership of the Equity Interests in the Borrower, (ii) liabilities incidental thereto, including its liabilities pursuant to the Loan Documents, and (iii) Permitted Holdings Indebtedness.   (b)                                 With respect to the Borrower and the Subsidiaries, engage at any time in any business or business activity other than a Permitted Business.   (c)                                  Enter into any Hedging Agreement other than (a) any such agreement or arrangement entered into in the ordinary course of business and consistent with prudent business practice to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities or (b) any such agreement entered into to hedge against fluctuations in interest rates or currency incurred in the ordinary course of business and consistent with prudent business practice; provided that in each case such agreements or arrangements shall not have been entered into for speculation purposes.   SECTION 6.09. Other Indebtedness and Agreements; Amendments to Acquisition Documentation. (a)  Permit any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to which any Material Indebtedness of any Loan Party is outstanding if the effect of such waiver, supplement, modification,    86        amendment, termination or release would materially increase the obligations of the obligor or confer additional material rights on the holder of such Indebtedness in a manner adverse to any Loan Party or the Lenders.   (b)                                 (i)  Make any distribution, whether in cash, property, securities or a combination thereof, other than regular scheduled payments of principal and interest as and when due (to the extent not prohibited by applicable subordination provisions), in respect of, or pay, or offer or commit to pay, or directly or indirectly (including pursuant to any Synthetic Purchase Agreement) redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any Indebtedness that is subordinated to the Obligations, including the Subordinated Notes.   (c)                                  (i)  Permit any waiver, supplement, modification, amendment, termination or release of, or fail to enforce strictly the terms and conditions of, any of the indemnities made in favor of Holdings, the Borrower and the Subsidiaries pursuant to the Acquisition Documentation such that after giving effect thereto such indemnities shall be materially less favorable to the interests of the Loan Parties or the Secured Parties with respect thereto or (ii) otherwise permit any waiver, supplement, modification, amendment, termination or release of, or fail to enforce strictly the terms and conditions of, any of the Acquisition Documentation except to the extent that such waiver, supplement, modification, amendment, termination or release or failure to enforce could not reasonably be expected to have a Material Adverse Effect.   SECTION 6.10. Capital Expenditures. Permit the aggregate amount of Capital Expenditures made by the Borrower and the Subsidiaries to exceed (a) in the case of other than by the Foreign Target, $5,000,000 in any fiscal year; provided that the amount of permitted Capital Expenditures set forth above in respect of any fiscal year commencing with the fiscal year ending on December 31, 2005, shall be increased (but not decreased) by (i) the amount of unused Capital Expenditures permitted pursuant to this clause (a) for the immediately preceding fiscal year less (ii) an amount equal to unused Capital Expenditures under this clause (a) carried forward to such preceding fiscal year, and (b) in the case of the Foreign Target, $10,000,000 (unless otherwise reduced by the amount of Asset Sales to the Foreign Target pursuant to Section 6.05(b)(i)) per each fiscal year 2006, 2007 and 2008 (provided, that the amount of Capital Expenditures incurred pursuant to this clause (b) shall not exceed $25,000,000 (unless otherwise reduced by the amount of Asset Sales to the Foreign Target pursuant to Section 6.05(b)(i)) at any time outstanding during the term of this Agreement).   SECTION 6.11. Interest Coverage Ratio. After December 31, 2005, permit the Interest Coverage Ratio on the last day of any fiscal quarter during any period set forth below to be less than the ratio set forth opposite such period below:       Period       Ratio                           January 1, 2006 through March 31,   2007       1.70 to 1.00         April 1, 2007 through June 30,   2007       1.75 to 1.00         July 1, 2007 through September 30,   2007       1.80 to 1.00         October 1, 2007 through December 31,   2007       1.85 to 1.00         January 1, 2008 through December 31,   2008       2.00 to 1.00         Thereafter       2.25 to 1.00          87        SECTION 6.12. Leverage Ratio. After December 31, 2005, permit the Leverage Ratio on the last day of any fiscal quarter during any period set forth below to be greater than the ratio set forth opposite such period below:      Period       Ratio                           January 1, 2006 through June 30,   2007       6.95 to 1.00         July 1, 2007 through September 30,   2007       6.75 to 1.00         October 1, 2007 through December 31,   2007       6.50 to 1.00         January 1, 2008 through December 31,   2008       5.50 to 1.00         January 1, 2009 through December 31,   2009       5.00 to 1.00         Thereafter       4.50 to 1.00          SECTION 6.13. Fixed Charge Coverage Ratio. After December 31, 2005, permit the Fixed Charge Coverage Ratio on the last day of any fiscal quarter during any period set forth below to be less than the ratio set forth opposite such period below:       Period       Ratio                           January 1, 2006 through March 31,   2007       1.25 to 1.00         April 1, 2007 through June 30,   2007       1.30 to 1.00         July 1, 2007 through September 30,   2007       1.35 to 1.00         Thereafter       1.40 to 1.00          SECTION 6.14. Fiscal Year. With respect to Holdings or the Borrower, change its fiscal year-end to a date other than December 31.   ARTICLE VII   Events of Default    SECTION 7.01. In case of the happening of any of the following events (“Events of Default”):   (a)                                  any representation or warranty made or deemed made in or in connection with any Loan Document or the Borrowings or issuances of Letters of Credit hereunder, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;   (b)                                 default shall be made in the payment of any principal of any Loan or the reimbursement with respect to any L/C Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;   88        (c)                                  default shall be made in the payment of any interest on any Loan or L/C Disbursement or any Fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days;   (d)                                 default shall be made in the due observance or performance by Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05 or 5.08 or in Article VI;   (e)                                  default shall be made in the due observance or performance by Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in clauses (b), (c) or (d) above) and such default shall continue unremedied for a period of 30 days following the earlier of (i) knowledge thereof by a Responsible Officer of a Loan Party and (ii) written notice thereof by the Administrative Agent or any Lender to a Loan Party;   (f)                                    Holdings, the Borrower or any Subsidiary shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period), or (ii) any other event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;   (g)                                 an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of Holdings, the Borrower or any Subsidiary, or of a substantial part of the property or assets of Holdings, the Borrower or a Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, the Borrower or any Subsidiary or for a substantial part of the property or assets of Holdings, the Borrower or a Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or any Subsidiary; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;   (h)                                 Holdings, the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, the Borrower    89        or any Subsidiary or for a substantial part of the property or assets of Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;   (i)                                     one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000 (excluding therefrom any amount covered by insurance as to which the applicable insurer has acknowledged in writing its obligation to cover) shall be rendered against Holdings, the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of Holdings, the Borrower or any Subsidiary to enforce any such judgment;   (j)                                     an ERISA Event described in clause (b) of the definition thereof shall have occurred or any other ERISA Event shall have occurred that, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Borrower and its ERISA Affiliates in an aggregate amount exceeding $5,000,000;   (k)                                  any Guarantee under the Guarantee and Collateral Agreement for any reason shall cease to be in full force and effect (other than in accordance with its terms), or any Guarantor shall deny in writing that it has any further liability under its Guarantee (other than as a result of the discharge of such Guarantor in accordance with the terms of the Loan Documents);   (l)                                     any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by the Borrower or any other Loan Party not to be, a valid, perfected and, with respect to the Secured Parties, first priority (except as otherwise expressly provided in this Agreement or such Security Document) Lien on any material Collateral covered thereby, except to the extent that any such loss of perfection or priority results from the failure of the Collateral Agent to maintain possession of certificates representing Equity Interests pledged under the Guarantee and Collateral Agreement; or   (m)                               there shall have occurred a Change in Control;   then, and in every such event (other than an event with respect to Holdings or the Borrower described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event either or both of the following actions may be taken: (i) the Administrative Agent may, and at the request of the Majority Facility Lenders with respect to the Revolving Credit Facility shall, by notice to the Borrower, terminate forthwith the Revolving Credit Commitments and the Swingline Commitment and (ii) the Administrative Agent may, and at the request of the Required Lenders shall, declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due    90        and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding, and the Administrative Agent and the Collateral Agent shall have the right to take all or any actions and exercise any remedies available to a secured party under the Security Documents or applicable law or in equity; and in any event with respect to Holdings or the Borrower described in paragraph (g) or (h) above, the Revolving Credit Commitments and the Swingline Commitment shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding, and the Administrative Agent and the Collateral Agent shall have the right to take all or any actions and exercise any remedies available to a secured party under the Security Documents or applicable law or in equity. The Majority Facility Lenders with respect to the Revolving Credit Facility may, by notice to the Administrative Agent, rescind a termination of the Revolving Credit Commitments and the Swingline Commitment described in clause (i) above in this paragraph and the Required Lenders may, by notice to the Administrative Agent, rescind an acceleration of the Loans described in clause (ii) above in this paragraph.   Notwithstanding anything to the contrary contained in this Section 7.01, in the event the Borrower fails to comply with any financial covenant contained in Sections 6.11, 6.12, or 6.13 Holdings shall have the right, no later than ten (10) Business Days after the delivery of the financial statements and certificates required by Section 5.04(a) or (b), as applicable, with respect to such applicable fiscal quarter, to issue Cure Securities for cash in an aggregate amount not in excess of the lesser of (x) the minimum amount necessary to cure the relevant failure to comply with such financial covenant and (y) $15,000,000, the net cash proceeds of which shall be contributed to the common equity capital of the Borrower (collectively, the “Cure Right”), and upon the receipt by the Borrower of such cash (the “Cure Amount”), such financial covenant shall be recalculated giving effect to the following pro forma adjustments:   (a)  Consolidated EBITDA shall be increased, in accordance with the definition thereof, solely for the purpose of measuring such financial covenant and not for any other purpose under this Agreement (for the avoidance of doubt, Consolidated EBITDA shall only be adjusted for the purposes of the quarterly tests pursuant to Sections 6.11, 6.12 and 6.13 and shall not be increased for purposes of determining any other covenant or definition which incorporates such covenants), by an amount equal to the Cure Amount;   (b) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of such financial covenant, the Borrower shall be deemed to have satisfied the requirements of such financial covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of such financial covenant which had occurred shall be deemed not to have occurred in the first instance for all purposes of this Agreement and the Loan Documents;   91        (c) to the extent that the Cure Amount proceeds are used to repay Indebtedness, such Indebtedness shall not be deemed to have been repaid for purposes of calculating the financial covenants set forth in Sections 6.11, 6.12 and 6.13 for the period with respect to which such Compliance Certificate applies; and   (d)  to the extent a fiscal quarter ended for which such financial covenant is initially recalculated as a result of a Cure Right is included in the calculation of a financial covenant in a subsequent fiscal period, the Cure Amount shall be included in the amount of Consolidated EBITDA for such initial fiscal quarter;   provided that the Cure Rights shall not be exercised more than twice in any four quarter period.   ARTICLE VIII   The Agents and the Arranger    Each of the Lenders and the Issuing Bank hereby irrevocably appoints each of the Administrative Agent and the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized by the Lenders to execute any and all documents (including releases and the Security Documents) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents.   Each bank serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or any of their respective Affiliates as if it were not an Agent hereunder.   No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent or the Collateral Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as any Agent or any of its Affiliates in any capacity. The Administrative Agent and the Collateral Agent shall not be liable for any action    92        taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the absence of its own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by Holdings, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.   Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for Holdings or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.   Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent.   Subject to the appointment and acceptance of a successor Agent as provided below, each Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation of the Administrative Agent or the Collateral Agent, the Required Lenders shall have the right to appoint a successor, subject to the Borrower’s approval (not to be unreasonably withheld or delayed) so long as no Default or Event of Default shall have occurred and be continuing. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and    93        their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while acting as Agent.   Each of the Arranger, the Syndication Agent and each Documentation Agent, in its capacity as such, shall have no duties or responsibilities, and shall incur no liability, under this Agreement or any other Loan Document.   Each Lender acknowledges that it has, independently and without reliance upon the Agents, the Arranger, the Syndication Agent, each Documentation Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents, the Arranger, the Syndication Agent, each Documentation Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.   To the extent required by any applicable law, the Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.   ARTICLE IX   Miscellaneous    SECTION 9.01. Notices. Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:   (a)                                  if to Holdings or the Borrower, to it at True Temper Sports, Inc., 8275 Tournament Drive, Suite 200, Memphis, TN 38125, Attention of President and Chief Financial Officer (Fax No. (901) 746-2162), with a copy to Andrew Mattei, Esq. at Mayer, Brown, Rowe & Maw LLP, 1675 Broadway, New York, NY 10019 (Fax No. (212) 849-5572);   (b)                                 if to the Administrative Agent or the Collateral Agent, to Credit Suisse, Eleven Madison Avenue, New York, NY 10010, Attention of Loan Services Manager (Fax No. (212) 325-8304); and   94        (c)                                  if to a Lender, to it at its address (or fax number) set forth in the Lender Addendum or the Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.   All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01.   SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and warranties made by Holdings or the Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and the Issuing Bank and shall survive the making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Bank, regardless of any investigation made by the Lenders or the Issuing Bank or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any Fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, the Arranger, any Lender or the Issuing Bank.   SECTION 9.03. Binding Effect. This Agreement shall become effective in accordance with the provisions of the Amendment Agreement.   SECTION 9.04. Successors and Assigns. (a)  Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of Holdings, the Borrower, the Administrative Agent, the Collateral Agent, the Issuing Bank or the Lenders that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.   (b)                                 Each Lender may assign to one or more assignees all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided, however, that (i) the Administrative Agent must give its prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) other than any assignment of Term Loans to a Lender or an Affiliate or Related Fund of a Lender, (ii) in the case of any assignment of a Revolving Credit Commitment, each of the Issuing Bank, the Swingline Lender and the Borrower must give its prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed); provided that the consent of the Borrower shall not be required to any such assignment during    95        the continuance of any Event of Default, (iii) the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 (or, if less, the entire remaining amount of such Lender’s Commitment) and shall be in an amount that is an integral multiple of $1,000,000 (or the entire remaining amount of such Lender’s Commitment), unless otherwise agreed by the Administrative Agent, (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance (such Assignment and Acceptance to be (A) electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent, which shall initially be the settlement system of ClearPar, LLC, or (B) manually executed and delivered together with a processing and recordation fee of $3,500) and (v) the assignee, if it shall not be a Lender immediately prior to the assignment, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).   (c)                                  By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Term Loan Commitment and Revolving Credit Commitment, and the outstanding balances of its Term Loans and Revolving Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of Holdings, the Borrower or any Subsidiary or the performance or observance by Holdings, the Borrower or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, the Arranger, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own    96        credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.   (d)                                 The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error and the Borrower, the Administrative Agent, the Issuing Bank, the Collateral Agent and the Lenders may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank, the Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.   (e)                                  Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder) and the written consent of the Administrative Agent and, if required, the written consent of the Borrower, the Swingline Lender and the Issuing Bank to such assignment, the Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e).   (f)                                    Each Lender may without the consent of the Borrower, the Swingline Lender, the Issuing Bank or the Administrative Agent sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other entities shall be entitled to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with respect to any particular participant, to no greater extent than the Lender that sold the participation to such participant) and (iv) the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans or L/C Disbursements and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable hereunder or the amount of principal of or the rate at which interest is payable on the Loans (in each case to the extent participated in by such    97        participant), extending any scheduled principal payment date or date fixed for the payment of interest on the Loans (in each case to the extent participated in by such participant), increasing or extending the Commitments (in each case to the extent participated in by such participant) or releasing any Guarantor or all or any substantial part of the Collateral).   (g)                                 Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.16.   (h)                                 Any Lender may at any time assign all or any portion of its rights under this Agreement to secure extensions of credit to such Lender or in support of obligations owed by such Lender and, in the case of any Lender that is a fund that invests in bank loans, such Lender may pledge all or any portion of its rights under this Agreement to any holder of, trustee for, or other representative of any holders of, obligations owed or securities issued by such fund as security for such obligations or securities; provided that no such assignment or pledge described in this clause (h) shall release a Lender from any of its obligations hereunder or substitute any such assignee or pledgee for such Lender as a party hereto.   (i)                                     Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information    98        relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.   (j)                                     Neither Holdings nor the Borrower shall assign or delegate any of its rights or duties hereunder without the prior written consent of the Administrative Agent, the Issuing Bank and each Lender, and any attempted assignment without such consent shall be null and void.   SECTION 9.05. Expenses; Indemnity. (a)  Holdings and the Borrower agree, jointly and severally, to pay all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank and the Swingline Lender in connection with the syndication of the credit facilities provided for herein and the preparation and administration of this Agreement and the other Loan Documents or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred by the Administrative Agent, the Arranger, the Issuing Bank or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including in each case the fees and disbursements of Latham & Watkins LLP, counsel for the Administrative Agent and the Collateral Agent, and, in connection with any such enforcement or protection, the reasonable fees and disbursements of any counsel for the Administrative Agent or the Collateral Agent and one other transaction counsel acting on behalf of the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank and the Lenders, together with any other local and special counsel reasonably required in connection with such enforcement or protection.   (b)                                 Holdings and the Borrower agree, jointly and severally, to indemnify the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, each Lender, the Issuing Bank and each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related costs and expenses, including reasonable counsel fees and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereunder or thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release of Hazardous Materials on any property owned or operated by Holdings, the Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to Holdings, the Borrower or any of the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related costs and expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from primarily the gross negligence, willful misconduct or bad faith of such Indemnitee (and, upon any such determination, any indemnification payments with respect to such losses, claims, damages, liabilities or related costs and expenses previously received by such Indemnitee shall be promptly reimbursed by such Indemnitee).   99        (c)                                  To the extent that Holdings and the Borrower fail to pay any amount required to be paid by them to the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the Aggregate Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the time.   (d)                                 To the extent permitted by applicable law, neither Holdings nor the Borrower shall assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.   (e)                                  The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the Transactions or the other transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, any Lender or the Issuing Bank. All amounts due under this Section 9.05 shall be payable on written demand therefor.   SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of Holdings or the Borrower against any of and all the obligations of Holdings or the Borrower now or hereafter existing under this Agreement and other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and although such obligations may be unmatured. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.   SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE   100        WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.   SECTION 9.08. Waivers; Amendment. (a)  No failure or delay of the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in exercising any power or right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings or the Borrower in any case shall entitle Holdings or the Borrower to any other or further notice or demand in similar or other circumstances.   (b)                                 Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrower and the Required Lenders; provided, however, that no such agreement shall (i) decrease the principal amount of, or extend the maturity of or any scheduled principal payment date (subject to the last sentence of Article VII) or date for the payment of any interest on any Loan or any date for reimbursement of an L/C Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Loan or L/C Disbursement, without the prior written consent of each Lender adversely affected thereby, (ii) increase or extend the Commitment or decrease or extend the date for payment of any Fees of any Lender without the prior written consent of such Lender, (iii) amend or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(j), the provisions of this Section or the percentage set forth in the definition of the term “Required Lenders,” or release any Guarantor (other than in accordance with the terms of the Guarantee and Collateral Agreement), without the prior written consent of each Lender adversely affected thereby, (iv) amend or modify the percentage set forth in the definition of the term “Majority Facility Lenders” without the prior written consent of each Lender adversely affected thereby, (v) release all or substantially all of the Collateral without the prior written consent of each Lender, (vi) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class or (vii) modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the written consent of such SPC; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative    101        Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as applicable.   SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or participation in any L/C Disbursement, together with all fees, charges and other amounts which are treated as interest on such Loan or participation in such L/C Disbursement under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan or participation in accordance with applicable law, the rate of interest payable in respect of such Loan or participation hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan or participation but were not payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or participations or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.   SECTION 9.10. Entire Agreement. This Agreement, the Fee Letters and the other Loan Documents constitute the entire contract between the parties relative to the subject matter hereof. Any other previous agreement among the parties with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank and the Lenders ) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.   SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.   SECTION 9.12. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions    102        contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.   SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 9.03. Delivery of an executed signature page to this Agreement or of a Lender Addendum by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.   SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.   SECTION 9.15. Jurisdiction; Consent to Service of Process. (a)  Each of Holdings and the Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral Agent, the Syndication Agent, each Documentation Agent, the Arranger, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against either Holdings or the Borrower or its properties in the courts of any jurisdiction.   (b)                                 Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.   (c)                                  Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.   103        SECTION 9.16. Confidentiality. Each of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its and its Affiliates’ officers, directors, employees and agents, including accountants, legal counsel and other advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority or quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) in connection with the exercise of any remedies hereunder or under the other Loan Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder, (e) subject to a prior or contemporaneous agreement containing provisions substantially the same as those of this Section 9.16, to (i) any actual or prospective assignee of or participant in any of its rights or obligations under this Agreement and the other Loan Documents or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Holdings, the Borrower or any Subsidiary or any of their respective obligations, (f) with the consent of Holdings or the Borrower or (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 9.16. Each of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders agrees not to use any Information except for evaluating the performance of Holdings, the Borrower and the Subsidiaries hereunder and enforcing the rights, remedies and obligations hereunder and under the other Loan Documents. For the purposes of this Section, “Information” shall mean all information received from Holdings or the Borrower and related to the Borrower or its business, other than any such information that was available to the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to its disclosure by Holdings or the Borrower; provided that, in the case of Information received from Holdings or the Borrower after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any person required to maintain the confidentiality of Information as provided in this Section 9.16 shall be considered to have complied with its obligation to do so if such person has exercised the same degree of care to maintain the confidentiality of such Information as such person would accord its own confidential information. Notwithstanding any other express or implied agreement, arrangement or understanding to the contrary, each of the parties hereto agrees that each other party hereto (and each of its employees, representatives or agents) are permitted to disclose to any persons, without limitation, the tax treatment and tax structure of the Loans and the other transactions contemplated by the Loan Documents and all materials of any kind (including opinions and tax analyses) that are provided to the Loan Parties, the Lenders, the Arranger or any Agent related to such tax treatment and tax aspects. To the extent not inconsistent with the immediately preceding sentence, this authorization does not extend to disclosure of any other information or any other term or detail not related to the tax treatment or tax aspects of the Loans or the transactions contemplated by the Loan Documents.   SECTION 9.17. Delivery of Lender Addenda. Each initial Lender shall become a party to this Agreement by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender, the Borrower and the Administrative Agent.   SECTION 9.18. Effect of Amendment and Restatement of the Existing Credit Agreement. (a)  On the Amendment Effective Date, the Existing Credit Agreement shall be    104        amended and restated in its entirety by this Agreement, and the Existing Credit Agreement shall thereafter be of no further force and effect except to evidence (i) the incurrence by the Borrowers of the “Obligations” under and as defined in the Existing Credit Agreement (whether or not such “Obligations” are contingent as of the Amendment Effective Date), (ii) the representations and warranties made by Holdings and the Borrowers prior to the Amendment Effective Date (which representations and warranties shall not be superseded or rendered ineffective by this Agreement as they pertain to the period prior to the Amendment Effective Date) and (iii) any action or omission performed or required to be performed pursuant to such Existing Credit Agreement prior to the Amendment Effective Date (including any failure, prior to the Amendment Effective Date, to comply with the covenants contained in such Existing Credit Agreement). The parties hereto acknowledge and agree that (a) this Agreement and the other Loan Documents, whether executed and delivered in connection herewith or otherwise, do not constitute a novation or termination of the “Obligations” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement as in effect prior to the Amendment Effective Date and which remain outstanding, (b) the “Obligations” are in all respects continuing (as amended and restated hereby and which are hereinafter subject to the terms herein) and (c) the Liens and security interests as granted under the applicable Loan Documents securing payment of such “Obligations” are in all respects continuing and in full force and effect and are reaffirmed hereby.   (b)                                 On and after the Amendment Effective Date, (i) all references to the Existing Credit Agreement in the Loan Documents (other than this Agreement) shall be deemed to refer to the Existing Credit Agreement, as amended and restated hereby, (ii) all references to any section (or subsection) of the Existing Credit Agreement in any Loan Document (but not herein) shall be amended to become, mutatis mutandis, references to the corresponding provisions of this Agreement and (iii) except as the context otherwise provides, on or after the Amendment Effective Date, all references to this Agreement herein (including for purposes of indemnification and reimbursement of fees) shall be deemed to be reference to the Existing Credit Agreement as amended and restated hereby.   (c)                                  This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver or other modification, whether or not similar and, except as expressly provided herein or in any other Loan Document, all terms and conditions of the Loans Documents remain in full force and effect unless otherwise specifically amended hereby or by any other Loan Document.   (d)                                 This amendment and restatement shall not alter, modify or in any way amend the schedules and exhibits to the Existing Credit Agreement (and such schedules and exhibits shall continue to be schedules and exhibits hereto), other than Schedule 2.01, which Schedule 2.01 as it exists on the Amendment Effective Date is attached hereto as Exhibit A.   [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]   105        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.       TRUE TEMPER   CORPORATION                 By:             Name.         Title:                 TRUE TEMPER   SPORTS, INC.                 By:             Name:         Title:       (signatures continue on next page)        CREDIT SUISSE, CAYMAN ISLANDS BRANCH (formerly known as Credit Suisse First Boston, acting through its Cayman Islands Branch), as Administrative Agent, Collateral Agent, Issuing Bank, Revolving Credit Lender, Term Lender, Swingline Lender and Arranger       By:             Name:         Title:           By:             Name:         Title:               EX-12.1 3 a06-2147_1ex12d1.htm STATEMENTS REGARDING COMPUTATION OF RATIOS       Exhibit 12.1 Computation of Ratio of Earnings To Fixed Charges             Successor Company       Predecessor Company                 Year   Ended   December 31,       Period from   March 15 to   December 31,       Period from   January 1 to   March 14,       Years   Ended December 31,                 2005       2004       2004       2003       2002       2001         Net income (loss) before taxes           $   (433)               $   (16,814   )           $   (12,453   )       $   17,971       $   15,244       $   13,032         Fixed Charges:                                                                                 Interest Expense           18,741               13,597               2,513           13,119       12,402       13,015         Interest Factor of Operating Rents           356               271               70           334       290       316         Total Fixed Charges           $   19,097               $   13,868               $   2,583           $   13,453       $   12,692       $   13,331         Adjusted Earnings           $   18,664               $   (2,946   )           $   (9,870   )       $   31,424       $   27,936       $   26,363         Ratio of Earnings   to Fixed Charges           1.0               (a   )           (a   )       2.3       2.2       2.0          (a)           Earnings in 2004 were insufficient to cover fixed costs.        EX-31.1 4 a06-2147_1ex31d1.htm 302 CERTIFICATION       EXHIBIT 31.1 CERTIFICATIONS I, Scott C. Hennessy, as President and Chief Executive Officer, certify that: 1.                 I have reviewed this annual report on Form 10-K of True Temper Sports, Inc.; 2.                 Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3.                 Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4.                 The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: (a)          Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; and (b)         Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c)          Disclosed in this report any change in the registrant’s internal controls over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s last fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5.                 The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal controls over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a)          All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and (b)         Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.    Date:   March 28, 2006     By:   /s/ Scott C. Hennessy         Name:   Scott C. Hennessy     Title:   President and Chief Executive Officer         (Principal Executive Officer)             EX-31.2 5 a06-2147_1ex31d2.htm 302 CERTIFICATION       EHIBIT 31.2 CERTIFICATIONS I, Jason A. Jenne, as Vice President, Chief Financial Officer, and Treasurer, certify that: 1.                 I have reviewed this annual report on Form 10-K of True Temper Sports, Inc.; 2.                 Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3.                 Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4.                 The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have: (a)          Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; and (b)         Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c)          Disclosed in this report any change in the registrant’s internal controls over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s last fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5.                 The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal controls over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a)          All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and (b)         Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.    Date: March 28, 2006         By:   /s/ JASON A. JENNE         Name:   Jason A. Jenne         Title:   Vice President, Chief Financial Officer and   Treasurer (Principal Financial Officer)                 EX-32.1 6 a06-2147_1ex32d1.htm 906 CERTIFICATION       EXHIBIT 32.1 Written Statement of the Chief Executive Officer  I, Scott C. Hennessy, as President and Chief Executive Officer of True Temper Sports, Inc. (the “Company”), state and certify that this Form 10-K Annual Report for the period ended December 31, 2005, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in this Form 10-K Annual Report for the period ended December 31, 2005, fairly presents, in all material respects, the financial condition and results of operations of the Company.    /s/ SCOTT   C. HENNESSY         Scott C. Hennessy          President and Chief Executive Officer   (Principal Executive Officer)         March 28, 2006                 EX-32.2 7 a06-2147_1ex32d2.htm 906 CERTIFICATION       EXHIBIT 32.2 Written Statement of the Chief Financial Officer  I, Jason A. Jenne, as Vice President and Chief Financial Officer of True Temper Sports, Inc. (the “Company”), state and certify that this Form 10-K Annual Report for the period ended December 31, 2005, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in this Form 10-K Annual Report for the period ended December 31, 2005, fairly presents, in all material respects, the financial condition and results of operations of the Company.    /s/ JASON   A. JENNE         Jason A. Jenne          Vice President, Chief Financial Officer and   Treasurer (Principal Financial Officer)         March 28, 2006                 -----END PRIVACY-ENHANCED MESSAGE-----
Changes in and Disagreements With Accountants on   Accounting and Financial Disclosure           64
Controls and Procedures           64             Item   9B       Other   Information           64             PART III                                 Item   10       Directors and Executive   Officers of the Registrant           65             Item   11       Executive Compensation           67
Security Ownership of Certain Beneficial Owners and   Management and Related Shareholder Matters           69             Item   13       Certain Relationships and   Related Transactions           69             Item   14       Principal Accountants Fees   and Services           70             PART IV
Exhibits and Financial Statements   Schedule           72             SIGNATURES           73             INDEX TO EXHIBITS           75              2       PART I Item 1.                        Business Purchase Agreement for True Temper Corporation On January 30, 2004, TTS Holdings LLC, a new company formed by Gilbert Global Equity Partners, L.P. and its affiliated funds (“Gilbert Global”), entered into a stock purchase agreement with True Temper Sports, Inc.’s (“True Temper” or the “Company”) direct parent company, True Temper Corporation (“TTC”), pursuant to which TTS Holdings LLC and certain of the Company’s senior management purchased all of the outstanding shares of TTC (“Gilbert Global Acquisition”). In connection with this acquisition, and effective on March 15, 2004, the Company repaid all of its outstanding 2002 senior credit facility, redeemed all of its 107¤8% senior subordinated notes due 2008, and made certain payments of the net remaining equity of the predecessor company to the selling shareholders. These payments were financed with the net proceeds of a new senior credit facility and new 83¤8% senior subordinated notes due 2011. The Gilbert Global Acquisition was accounted for by the Company’s parent company using the purchase method of accounting. As the Company is a wholly owned subsidiary of True Temper Corporation, the Company has “pushed down” the effect of the purchase method of accounting to its financial statements. The Company’s financial statements and accompanying notes, shown in Item 8 of this annual report, present the historical cost basis results of the Company as “predecessor” through March 14, 2004, and the results of the Company as “successor” from March 15, 2004 through December 31, 2005, accordingly, certain elements of the successor company presentation are not comparable to the predecessor company presentation due to the different basis of accounting. For purposes of the following discussion, contained in Item 1 and 7, regarding the Company’s results of operations and cash flow, the Company has combined the results of the predecessor and successor companies in order to compare the results to the prior year. Material variances caused by the different basis of accounting have been disclosed where applicable. General We are the world’s leading designer, manufacturer and marketer of golf shafts. Since the 1930s, we have manufactured golf shafts under the widely recognized True Temper brand. In 2005, over 70% of our revenue was generated through the sale of steel golf shafts. We believe that our share of the worldwide steel shaft market was approximately 68% in 2005 and that our share is more than three times greater than that of the next largest market participant. We are a leading supplier of premium steel shafts to top domestic golf club original equipment manufacturers and distributors, including Callaway, Cleveland, Golfsmith, Golf Works, Mizuno, Nike, PING, TaylorMade, Titleist and Wilson. From 1987 to 2005, our steel shafts were played by the winners of 62 of the PGA’s 76 major championships, including 17 of the last 19 Masters champions. We are also one of the world’s largest manufacturers of premium graphite (carbon fiber based composites) golf shafts, with an estimated share of approximately 8% of this highly fragmented market. In addition to golf shafts, through our Performance Sports business, we also design, manufacture and market products such as steel and titanium alloy bicycle frame components, composite bicycle components, such as forks and handlebars, and graphite hockey sticks. Our golf shaft products include over 1,000 proprietary models (with our customers’ brand name, label or trademark affixed to the shaft) and 2,000 branded models (with the True Temper and / or Grafalloy brand name, label or trademark affixed to the shaft), including a full range of premium and commercial grade steel shafts and a full line of premium graphite shafts. We design, manufacture and market approximately 275 lines of steel shafts, including: ·       Dynamic Gold, which has been a leading steel shaft on the PGA Tour for the past 25 years; 3    ·       Dynamic Gold SL, which delivers the playing characteristics of Dynamic Gold with 20% less weight; ·       Black Gold, which offers a low-to-mid ball flight while combining Frequency Tuned™ technology with proprietary Grip-toTip™ taper profile; ·       SensiCore, which is equipped with patented vibration-damping technology that, when inserted into our steel shafts, can eliminate up to 70% of vibration at impact to combine the feel of graphite with the consistency of steel; ·       Dynalite Gold, which features a light-weight, soft tip design that promotes a higher ball flight to optimize trajectory for low-ball hitters; ·       TX-90, which at only 90 grams, is one of the lightest steel shafts available and was designed for players seeking consistent performance using a lighter alternative to traditional steel shafts; ·       TX Tour, a tour version of TX-90 which offers a Superlite steel iron shaft with playing characteristics targeted towards the low handicap golfer; ·       TT Lite, which was designed for the custom club builders and offers a standard weight and mid-flex design which allows for various trimming options for a truly custom fit; and ·       Numerous co-branded products, including Callaway’s Memphis 10, Nike’s Speedstep, Ping’s JZ and ZZ Lite and Wilson’s Fat Shaft. We also design, manufacture and market approximately 75 lines of premium graphite shafts under the Grafalloy brand name. Our graphite shafts have a strong presence at the professional level and have been played by winners on each of the professional tours, including the PGA, EPGA, LPGA, Champions and Nationwide Tours. Our most popular graphite shaft brands include: ·       Grafalloy Blue, which is a new breakthrough graphite shaft designed specifically for today’s oversized metal woods; ·       Grafalloy ProLaunch, a newly introduced graphite shaft designed with today’s high performance heads and low-spin balls to help players achieve optimal launch conditions to reduce ball spin and maximize distance; ·       Grafalloy Prototype Comp NT, which incorporates today’s nano technology for the most consistent carbon fiber alignment; ·       Grafalloy ProLite, which is one of the leading ultra light driver shafts on the professional level and accounts for more than 35% of all the ultra light driver shafts played on the PGA and Champions Tours; and ·       Grafalloy ProLogic, which is designed for use in irons as a graphite alternative to steel and is manufactured with tight tolerances to provide consistent feel and improved shot making. We believe that we are the only golf shaft company in the world which is capable, within its own facilities, of manufacturing both steel and graphite golf shafts in large volumes. This unique competitive advantage allowed us to design, develop, manufacture and sell the first commercially viable multi-material golf shaft combining both steel and graphite into one shaft. Our BiMatrx RXi and BiMatrx Rocket shafts utilize a patented multi-material technology to combine the torsional stability and consistent performance benefits of steel with the light-weight flexible benefits of graphite into one shaft. Through our Performance Sports business, we have utilized the capabilities developed in our golf shaft business to pursue other branded recreational sports equipment markets that have similar competitive dynamics and manufacturing requirements. We focus on the premium segment of the bicycle market where innovation, quality and branding are highly valued by the consumer, and products are often  4    customized to suit the individual consumer’s specific requirements. Our value-added premium bicycle component products generally have higher margins than component parts made for bicycles sold in mass channel retail stores. In the hockey components market, we focus on the composite shafts used in a variety of original equipment manufacturers’ one-piece and composite sticks. The Golf Club Shaft Industry The golf equipment industry is estimated to be a $4.6 billion industry, with golf clubs making up the largest portion at approximately 61%, or $2.8 billion. Spending in the golf equipment industry is highly concentrated among avid golfers (golfers that play more than 25 rounds of golf per year) who account for approximately 57% of the total spending on golf equipment despite only accounting for approximately 23% of the golfing population. There are three basic components needed to manufacture a golf club: the shaft, the club head and the grip. The shaft is critical to the performance of a golf club as it is critical in controlling the consistency and distance of a golf shot. While branded premium shafts are critical to the performance and marketing of golf clubs, these shafts represent a relatively small portion of the overall cost of a golf club, typically under 10% of the retail sales price. The golf shaft market is comprised primarily of steel and graphite shafts. We believe that in 2005 the three largest participants in the worldwide steel shaft market comprised an aggregate market share of more than 80%. We believe that the concentration in the steel shaft market is due to the high barriers to entry created by the technical expertise and capital investment necessary to participate in the market as well as the customized manufacturing process required for the production of premium steel shafts. The production of graphite shafts is less capital intensive and requires less technical expertise. Although recently there has been some consolidation among graphite shaft manufacturers, the graphite shaft industry is fragmented, with the top five market participants representing approximately 50% of the worldwide market in 2005. We believe that the relatively lower barriers to entry account for this fragmentation. We believe that from 1991 to 1995, graphite shafts gained share in the overall shaft market due to the light-weight, vibration-damping characteristics of graphite shafts, particularly for longer-shafted, larger-headed woods. Since 1995, however, the development of vibration damping materials for steel shafts such as our SensiCore insert, along with the introduction of lighter weight steel alloys in products such as our Dynamic Gold SL and TX-90 shafts, have resulted in steel shafts that have the vibration damping and light-weight characteristics of graphite shafts together with the consistent performance and distance control qualities of steel shafts. We believe that these design improvements contributed to the growth in share of steel shafts in the overall shaft market from approximately 50% in 1995 to approximately 65% in 2005. Products We design, manufacture and market steel and graphite golf shafts, as well as a variety of high strength, high tolerance components for the hockey, bicycle and other recreational sports markets. Our proprietary shafts, which accounted for approximately 26% of our net sales in 2005, are custom designed, and frequently co-branded in partnership with our customers, to accommodate specific golf club head designs. As an example, our proprietary models include co-branded products such as Callaway’s Memphis 10, Nike’s Speedstep, Ping’s JZ and ZZ Lite and Wilson’s Fat Shaft. Our branded products with the True Temper and/or Grafalloy names and designs are typically sold to golf club original equipment manufacturers, distributors and various custom club assemblers, and are used to either assemble new clubs or to replace the shafts in existing clubs. 5    Steel Golf Shafts.   We manufacture a wide range of steel golf shaft lines with unique design features and performance characteristics. Our steel golf shafts can be divided into the following two major product categories: (1)         Premium steel shafts; and (2)         Commercial grade steel shafts. Premium steel shafts, such as our Dynamic Gold, Black Gold, Dynamic Gold SL and TX-90 product lines, are high performance products with tighter design tolerances and quality specifications that sell for higher average selling prices and generate higher profit margins than commercial grade steel shafts. Our commercial grade steel shafts are manufactured to a different specification and sell for a lower average selling price to original equipment manufacturers who produce and sell opening price point golf club sets, typically to entry-level players who purchase their products through mass channel retail stores. Graphite Golf Shafts.   We manufacture a wide range of graphite golf shaft lines, which are offered in a variety of weights, torques and flexes. Our graphite golf shafts are currently being played by over 100 touring professionals on the PGA, EPGA, LPGA, Champions and Nationwide Tours. Our graphite shafts are sold under the Grafalloy brand name. Similar to steel, graphite shafts can be placed in several categories of performance, quality and price. Most of the graphite golf shafts that we produce and sell are higher quality and higher priced premium grade shafts that are sold to golf equipment distributors, and to original equipment manufacturers for their custom product offerings. Golf Shafts with Combined Materials.   During the last several years, we have been working to develop golf shafts that combine multiple materials such as steel and graphite into one shaft. Late in 2000, we introduced a proprietary custom iron product for a customer that combines a steel shaft with a graphite tip section to produce a shaft that provides a new feel for irons. We used similar patented technology to introduce the True Temper branded product known as BiMatrx in January 2001. The BiMatrx shaft consists of a graphite shaft with a steel tip section that is currently designed for use in driver and fairway wood applications. Performance Sports Products.   We also manufacture and sell a wide variety of high performance components for the bicycle, hockey and other recreational sports markets. In 2005, we sold our performance sports products to a broad range of original equipment manufacturers and distributors. Customers We maintain long-standing relationships with a highly diversified customer base. We are a leading supplier of shafts to the top domestic golf club original equipment manufacturers and distributors, including Callaway, Cleveland, Golfsmith, Golf Works, Mizuno, Nike, Ping, TaylorMade, Titleist, and Wilson. In 2005, we had in excess of 600 customers, including approximately 540 golf club manufacturers/retailers and approximately 80 distributors. For many years, we have maintained a broad and diversified customer base in the golf equipment market. In 2005, our top ten customers represented approximately 72% of our net sales, and our top customer accounted for approximately 14% of our net sales. We believe that our close customer relationships and responsive service have been significant elements to our success and that our engineering and manufacturing expertise provide us with a strong competitive advantage in truly partnering with our customer base. We have developed and co-branded many proprietary shafts with our customers. As an example, we produce proprietary customized steel shafts for Callaway, under the Memphis 10 brand; for Ping, under the JZ and ZZ Lite brands; for Nike, using the Speedstep brand; and for Wilson to produce the Fat Shaft line of clubs. 6    Competition We operate in a highly competitive environment. We believe that we compete principally on the basis of: ·       our ability to provide a broad range of high quality steel and graphite shafts at competitive prices; ·       our ability to deliver customized products in large quantities on a timely basis through distribution channels around the world; ·       the acceptance of steel and graphite shafts in general, and our shafts in particular, by professional and amateur golfers alike; and ·       our ability to develop and produce innovative new products that provide performance features which benefit golfers of all skill levels. We believe that our share of the worldwide steel shaft market was approximately 68% in 2005 and that our share is more than three times greater than the share of the next largest market participant. We believe that we compete primarily with four other steel golf shaft manufacturers: Royal Precision, Inc., a domestic based premium steel shaft manufacturer, Far East Machinery Co., Ltd., located in Taiwan which produces commercial grade products, Nippon Shaft Co., Ltd., a Japanese manufacturer of premium products, and Summit Sports World Wide Co., Ltd. which produces limited volumes of commercial grade steel shafts. Unlike steel, the graphite shaft manufacturing industry is highly fragmented with a large number of suppliers selling to only a few customers. We believe there are over 50 graphite shaft manufacturers worldwide. A few of these companies reside in North America and many are located in Far East Asia. We do not believe that there are any graphite suppliers currently with a market share in graphite that is comparable to the market share we have in steel. We believe we are one of the five largest producers of branded premium grade graphite shafts in the world and we estimate that our market share is approximately 8%. Our major competitors in the premium grade branded graphite shaft market include Aldila, Inc., United Sports Technologies, Inc., Graphite Design International, and Fujikura Composites. We believe that we are the only golf shaft company in the world which is capable, within its own facilities, of manufacturing both steel and graphite golf shafts in large volumes. Design & Development We design and develop products for both proprietary/co-branded market applications and for the True Temper/Grafalloy branded product names. The larger golf club manufacturers often request exclusively designed proprietary or co-branded steel and graphite golf shafts for their club systems, which require golf shafts, heads and grips engineered to work together. We are committed to serving this market by maintaining our role as a leader in innovative shaft designs for both steel and graphite materials technology. Shaft designs and modifications are frequently the direct result of our combined efforts with that of our customers to develop an exclusive shaft specifically designed for that customer’s clubs. We use a computer aided design analysis program to evaluate a new shaft’s design with respect to weight, torque, flex point, tip and butt flexibility, swing weight and other critical shaft design criteria. In addition to our proprietary/co-branded product applications, we are very active in designing and developing new products under the True Temper and Grafalloy brand names that meet the performance needs of golfers of all ages and skill levels. We develop these branded products based upon our internal research and evaluation of consumer needs and preferences. 7    The materials typically used in production of our designs include several different high strength steel alloys and advanced composite systems of graphite and glass fibers with thermosetting epoxy resin systems. Using state of the art technology, we generate a design which is then analyzed by computer for stiffness and strength properties. Our research and development efforts focus on technology development and new materials as an essential precursor to successful new product development. Our design research focuses on improvements in shaft aesthetics since cosmetic appearance has become increasingly important to customers. To supplement our design and development we employ extensive testing that includes laboratory durability and stress tests, robotic testing, extensive ball flight/trajectory analysis and individual player evaluation. In 2003, we opened a 14 acre test facility that enables us to better evaluate our products. We have our own private driving range where we perform qualitative player testing and quantitative mechanical testing with a Miya 5 swing robot. Our facility is equipped with an Accushot data system which allows us to measure the distance and dispersion of each shot to provide an accurate assessment of product performance. Our facility also utilizes the newest, state of the art, TrackMan doppler radar system to track all aspects of ball flight and trajectory. We believe that we are the only shaft manufacturer with our own driving range that is capable of this type of product testing. In addition, our pursuit of strategic vendor alliances complement our abilities and needs, an approach which allows us to exploit technical capabilities beyond our own while minimizing the risk and investment required to enter the market with new products. Research and development costs for the years ended December 31, 2005, 2004 and 2003 were $1.8 million, $1.5 million and $1.5 million, respectively. Manufacturing We believe that our manufacturing expertise and production capabilities enable us to respond quickly to customers’ orders and provide sufficient quantities on a timely basis. We believe that our investment in capital equipment and personnel training has helped us to establish a reputation as one of the leading manufacturers of steel and graphite shafts. Steel Shaft Manufacturing Process.   The process of manufacturing a steel shaft has many distinct phases. Generally, a large steel coil is unrolled and then formed lengthwise, welded and cut into cylinders. The tubing is then treated and fitted over a metal rod or “mandrel” that is used to determine the precise inside diameter of the cylinder as it is drawn. The tubing is stretched, cut into sections, and then weighed and balanced. Later, through a process that we pioneered, the sections are tapered to give each shaft model a particular flex and frequency. The shafts are cleaned, straightened, heat-treated and tempered. The shafts are straightened by machines designed and built by us. The shafts are plated with layers of nickel to prevent corrosion and then covered with a fine layer of chrome. Finally, shafts are dried, polished and inspected for cosmetic flaws before our name and logo is affixed to the shaft. It takes an average of 15 days to manufacture one of our True Temper steel shafts. Graphite Shaft Manufacturing Process.   There are two processes which are used to manufacture a graphite shaft: flag-wrapping and filament-winding. Most of our graphite shafts are produced using the flag-wrapping technique. The flag-wrapping method uses graphite fiber materials or “prepreg” in sheet form, which requires refrigeration until use. Each new roll of prepreg is allowed to reach room temperature before the material is cut into pennant-shaped patterns called flags for each particular shaft design. Layer by layer, various combinations of prepreg flags are wrapped around mandrels specified for each particular shaft design. The layered materials are then encased in thin layers of clear tape for compaction and heated at high temperatures to harden the material. At the end of the process, the shafts are painted and stylized using a variety of colors, patterns and designs. The filament-winding process, on  8    the other hand, begins with a spool, rather than a sheet, of graphite fiber, which is fed onto the reel of a machine which then wraps the fiber around a mandrel by turning the mandrel and simultaneously moving the graphite fiber from one end of the mandrel to the other. Once the mandrel is wrapped, the process uses the same encasing and heating techniques as the flag wrapping process. Raw Materials.   We use several raw materials to produce steel golf shafts, including several steel alloys sourced from three primary vendors, nickel crowns and plating chemicals, Sensicore inserts and various sundry supplies, boxes and labels. Graphite shafts are produced with a variety of graphite fiber materials in both sheet and spool form that we source from several different vendors. In addition, graphite shafts are finished with a wide variety of paints, inks and heat transfer labels. We believe that there are adequate alternative suppliers of these materials and, therefore, we do not believe that we are dependent on any one supplier. In addition to the raw materials discussed above, we also use a substantial amount of natural gas and electricity in our manufacturing processes. Suppliers for these types of energy sources are limited, and prices are subject to general market and industry conditions. Marketing and Promotion Our marketing strategy is designed around new product development and targeted advertising and promotion programs. Through our ability to anticipate and address consumer trends in the golf equipment market, as well as the performance demands of professional golfers, we are able to successfully market our products to golf club manufacturers while strengthening brand awareness. During the last several years, our marketing efforts, through the utilization of a wide variety of promotional channels, including mass media advertising, print and television, sponsorship of golf-related events, equipment endorsements from original equipment manufacturers and product demonstrations, have increased our overall exposure in the golf industry. For example, we have maintained a strong presence among PGA Tour players, particularly since 1981, when we began sending our PGA Tour van to all major PGA events. The tour van functions as a golf club custom shop on wheels, visiting over 30 professional tour events during 2005. Typically, the van is located near the practice tee and lends technical support to the tour professionals while simultaneously promoting the True Temper and Grafalloy brands to representatives of original equipment manufacturers. In addition, we provide technical support to the players on the Champions, Nationwide and LPGA Tours as well as the European and Japanese PGA Tours. Although we do not pay any professional golfer to endorse or play our shafts, we believe that the use of our products by professional golfers enhances our reputation for quality and performance while also promoting the use of our shafts. Due to our strong reputation and service, we estimate that nearly 75% of professional golfers around the world use our product in competition. We clearly recognize the influence that a professional golfer, or very low handicap golfer, can have on consumer preferences, so we also engage in special promotional efforts with local club and teaching professionals, and we contribute shafts to college athletic programs, to encourage the use of our product so they provide positive feedback on the True Temper and Grafalloy brands to their constituents. Much of our advertising and promotional spending is dedicated to print and television advertising, including cooperative advertising with our customers. Additional advertising and promotional spending is allocated to promotional events such as trade shows, consumer golf shows, PGA Tour activities and retail golf shop advertising displays. Advertising and promotional costs for the years ended December 31, 2005, 2004 and 2003 were $3.5 million, $3.5 million and $3.1 million, respectively. 9     Distribution & Sales We primarily sell our shafts to original equipment manufacturers, retailers and distributors. Typically, distributors resell our products to custom club assemblers, pro shops and individuals. Sales to golf club manufacturers/retailers accounted for approximately 90% of our net golf shaft sales in 2005, and sales to distributors represented approximately 10% of our 2005 net golf shaft sales. We believe that we have one of the most experienced and respected sales staffs in the industry. Our sales and marketing department includes domestic sales managers, international sales managers, a customer service group and a team of design professionals that provides field support to our sales representatives. We believe that our international market presence, which comprised approximately 36% of our total 2005 net sales, provides an opportunity for future growth. We market our products in Japan, Europe, Australia and Southeast Asia and maintain a distribution operation in each region. Financial information by geographic segment is contained in Note 12 to the consolidated financial statements located elsewhere in this annual report. Employees As of December 31, 2005, we had 734 full-time employees, including 16 in sales and marketing, 40 in research, development and manufacturing engineering, 578 in production and the balance in administrative and support roles. The hourly employees at our steel plant in Amory, Mississippi are represented by the United Steel Workers of America. In June 2003, the United Steel Workers union at our Amory, Mississippi facility voted to accept a new collective bargaining agreement that covers a four year period beginning in July 2003 and expiring on June 30, 2007. We believe that our relationships with the union and our employees are good. Intellectual Property As of December 31, 2005, we held 44 patents worldwide relating to various products and proprietary technologies, including the SensiCore technology, and had nine patent applications pending. We also hold numerous trademarks related to, among other things, our True Temper, Grafalloy and Alpha Q branded products. We do not believe that our competitive position is dependent solely on patent or trademark protection, or that our operations are dependent on any individual patent or trademark. Environmental, Health And Safety Matters We are subject to federal, state and local environmental and workplace health and safety laws and regulations, including requirements governing discharges to the air and water, the handling and disposal of solid and hazardous wastes, and the remediation of contamination associated with releases of hazardous substances. In December 2003, a review was conducted by independent environmental consultants and, based upon such report, we believe that we are currently in material compliance with environmental and workplace health and safety laws and regulations. Nevertheless, our manufacturing operations involve the use of hazardous substances and, as is the case with manufacturers in general, if a release of hazardous substances occurs or has occurred on or from our facilities, we may be held liable and may be required to pay the cost of remedying the condition. The amount of any such liability could be material. We devote significant resources to maintaining compliance with, and believe we are currently in material compliance with, our environmental obligations. Despite such efforts, the possibility exists that instances of noncompliance could occur or be identified, the penalties or corrective action costs associated with which could be material. 10    Like any manufacturer, we are subject to the possibility that we may receive notices of potential liability, pursuant to Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), commonly known as Superfund, or analogous state laws, for cleanup costs associated with onsite or offsite waste recycling or disposal facilities at which waste associated with our operations have allegedly come to be located. Liability under CERCLA is strict, retroactive and joint and several. To our knowledge, no notices involving any material liability are currently pending. We have made, and will continue to make, capital expenditures to comply with current and future environmental obligations. Because environmental requirements are becoming increasingly stringent, our expenditures for environmental compliance may increase in the future. Item 1A.     Risk Factors Our substantial indebtedness could adversely affect our financial health and prevent us from fulfilling our obligations. Our substantial indebtedness could adversely affect the financial health of our company. For example, it could: ·       make it more difficult for us to satisfy our obligations with respect to our 83¤8% Senior Subordinated Notes due 2011; ·       increase our vulnerability to increases in interest rates because our secured credit facility, under which our indebtedness was $95.7 million as of December 31, 2005, is subject to a variable interest rate; ·       limit our ability to fund future working capital, capital expenditures, research and development costs, acquisitions and other general corporate requirements; ·       require a substantial amount of our annual cash flow from operations for debt service, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, research and development efforts, acquisitions and other general corporate purposes; ·       limit our flexibility to plan for, or react to, changes in our business and the industry in which we operate; ·       place us at a competitive disadvantage compared to our competitors that have less debt; and ·       limit our ability to borrow additional funds. To service our indebtedness, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control. We may not be able to generate the cash we need to service our indebtedness. Our ability to make payments on and to refinance our indebtedness, and to fund planned capital expenditures and research and development efforts will depend on our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control. Based on our current level of operations, we believe our cash flow from operations, available cash and available borrowings under our senior bank facilities will be adequate to meet our future liquidity needs. We cannot assure you, however, that our business will generate sufficient cash flow from operations, or that future borrowings will be available to us under our senior bank facilities in an amount sufficient to enable us to pay our indebtedness, or to fund our other liquidity needs. We may need to refinance all or a portion of our indebtedness on or before maturity. We might not be able to refinance any of our indebtedness on commercially reasonable terms or at all. 11    Our success depends on the continued popularity of golf and the growth of the market for golf clubs. We generate a substantial portion of our net revenues from the sale of golf shafts. The demand for our golf shafts is directly related to the popularity of golf, the number of golf participants and the number of rounds of golf being played by these participants. If golf participation decreases, sales of our products would be adversely affected. In addition, the popularity of golf organizations, such as the PGA, also affects the sales of our golf shafts. We depend on the exposure of our brands to increase brand recognition and reinforce the quality of our products. Any significant reduction in television coverage of PGA or other golf tournaments, or any other significant decreases in either attendance at golf tournaments or viewership of golf tournaments, will reduce the visibility of our brand and could adversely affect our sales. A reduction in discretionary consumer spending could reduce sales of our products. Sales of golf clubs are dependent on discretionary consumer spending which may be affected by general economic conditions and could result in a decrease in consumer spending on golf equipment. In addition, our future results of operations could be affected adversely by a number of other factors that influence discretionary consumer spending, including consumer concerns over international and military conflicts around the world, unseasonal weather patterns, demand for our existing and future products, new product introductions by our competitors, an overall decline in participation in golf activities, shifting consumer preferences between graphite and steel golf shafts or other materials that we currently do not produce, and competitive pressures that otherwise result in lower than expected average selling prices. Any one or more of these factors could result in our failure to achieve our expectations as to future sales or earnings. Because most operating expenses are relatively fixed in the short-term, we may be unable to adjust spending to compensate for any unexpected sales shortfall, which could adversely affect our results of operations. Our new product development efforts may not be successful. We may not be able to continue to develop competitive products, develop or use technology on a timely or competitive basis or otherwise respond to emerging market trends. Because the introduction of new golf shafts using steel, graphite or other composite and combined materials is critical to our future success, our continued growth will depend, in large part, on our ability to successfully develop and introduce new products in the marketplace. Should golf consumers prefer to use golf clubs made from materials other than steel or graphite, there could be a material adverse effect on the results of our operations. In addition, the design of new golf clubs is also greatly influenced by the rules and interpretations of the U.S. Golf Association, or USGA, and the Royal and Ancient Golf Club of St. Andrews, or St. Andrews. Although the golf equipment standards established by the USGA and St. Andrews generally apply to competitive events sanctioned by those organizations, we believe that it is critical for our future success that our new shafts comply with USGA and St. Andrews standards. New products that we introduce may not receive USGA or St. Andrews approval. In addition, existing USGA and St. Andrews standards may be changed in ways that adversely affect the sales of our current or future products. We are subject to work stoppages at our facilities, which could seriously impact the profitability of our business. If any labor disruption or work stoppages affect our employees, the results of our operation could be adversely affected. At December 31, 2005, we employed approximately 734 full-time individuals. Of these, approximately 351 hourly employees at our Amory, Mississippi facility are represented by the United Steel Workers of America. We recently entered into a new collective bargaining agreement with the United Steel Workers of America which became effective on July 1, 2003 and will expire on June 30, 2007. Nevertheless, we may be subject to work stoppages or other labor disruptions in the future. If such events were to occur, our results of operations may be materially adversely affected. 12    We face intense competition with other golf shaft designers and manufacturers, and our inability to compete effectively for any reason could adversely affect our business. We operate in a highly competitive environment and compete against a number of established golf shaft designers, manufacturers and distributors. We also compete indirectly with manufacturers that produce shafts internally and face potential competition from golf club manufacturers that currently purchase golf shaft components from third parties but which may have, develop or acquire the ability to manufacture shafts internally. Unlike the steel shaft industry, the graphite shaft industry is highly fragmented. As a result, we compete with many competitors involved in the design and manufacture of graphite shafts. While we have had long-established relationships with most of our customers, we are not the exclusive supplier to most of them, and consistent with the industry practice, generally do not have long-term contracts with our customers. Although we believe that our relationships with our customers are good, the loss of a significant customer or a substantial decrease in sales to a significant customer could have a material adverse affect on our business and operating results. See “Business-Competition” for a description of the bases on which we compete and the number of competitors in our industry. These factors, as well as demographic trends and economic conditions, could result in increased competition and could have a material adverse effect on our results of operations. Our profitability would be adversely affected if the operation of our Amory manufacturing plant were interrupted or shut down. We operate a majority of our manufacturing processes at our facility in Amory, Mississippi. Any natural disaster or other serious disruption to this facility due to fire, tornado, flood or any other cause would substantially disrupt our sales and would damage a portion of our inventory, impairing our ability to adequately supply our customers. In addition, we could incur significantly higher costs and longer lead times associated with fulfilling our direct-to-consumer orders and distributing our products to our customers during the time it takes for us to reopen or replace our Amory facility. As a result, disruption at our Amory facility would adversely affect our profitability. Risks related to our operating facility in China could adversely affect our business. In 2003, we opened a graphite manufacturing facility in southern China in order to be able to produce our graphite shafts at a lower cost. We have since transitioned a large portion of our composite manufacturing capacity from the United States to China. As a result, we will be subject to potential political instability in China and trade conflict between the United States and China. Consolidation of our customer base could adversely affect our business. If the industry and customer base continues to consolidate, then it is possible a consolidation of several of our existing customers into one company could represent a significant portion of our annual revenues. If this was to occur, and this customer selected an alternative shaft supplier, it could have a material adverse effect on our results of operations. If this consolidated company were to remain our customer it could represent an increased credit risk due to its size in relation to our total accounts receivable. Fluctuations in the cost and availability of raw materials could adversely affect our business. Since we are dependent upon certain suppliers for steel, nickel, graphite prepreg and other materials, we are subject to price increases and delays in receiving materials. Although we have several sources for most of the key raw materials we purchase, and we attempt to establish purchase price commitments for one-year periods, we are subject to price increases for raw materials used in the manufacture of golf shafts and to delays in receiving these materials. As key components to the manufacture of golf shafts, a  13    substantial price increase to one or more of these raw materials or any extended delay in their delivery could result in a material adverse effect on our results of operations. Fluctuations in the cost and availability of energy sources to us could adversely affect our business. Our graphite shaft manufacturing operations in Southern California and China are dependent upon a consistent and affordable supply of electricity. If there is a prolonged shortage of electrical supply to these facilities and /or a significant increase in the cost of electrical power, we may need to temporarily or permanently close our graphite shaft operations, which could materially adversely affect our results of operations. In addition, our steel shaft manufacturing plant located in Mississippi relies upon a consistent and affordable supply of both natural gas and electrical power in order to conduct normal operations. If our Mississippi facility should experience a shortage in supply of either power source or a significant increase in cost, it could have a material adverse affect on our results of operations. Fluctuations in the availability of energy sources to our customers could adversely affect our business. There are a significant number of golf equipment assemblers that are headquartered and conduct manufacturing operations in Southern California. In the aggregate, these companies account for a significant share of the golf equipment market and also account for a considerable portion of our sales revenue. With the disruption of electrical power to California and other Western states in recent years there is a risk that our customers’ manufacturing operations may be adversely affected by power shortages. If this were to occur they may reduce their purchases of shafts from us causing a significant adverse impact to our revenues and results of operations. Fluctuations in cost of health insurance could adversely affect our business. Health insurance coverage is a valuable benefit in retaining and attracting employees and has been subject to significant price increases by health industry providers. Since we do not plan to eliminate providing health benefits to our employees, the rising costs could have a material adverse affect on the results of our operations. If we are unable to protect our intellectual property rights, our business and prospects may be harmed. The patents we hold relating to certain of our products and technologies may not offer complete protection against infringement of our proprietary rights by others. As of December 31, 2005 we held 44 patents worldwide relating to various products and proprietary technologies, including the SensiCore technology, and had nine patent applications pending. Patents may not be issued from the pending patent applications. Moreover, these patents may have limited commercial value or may not protect our products. Additionally, the U.S. patents that we hold do not preclude competitors from developing or marketing products similar to our products in international markets. We may infringe on others’ intellectual property rights. One or more adverse judgments with respect to these intellectual property rights could negatively impact our ability to compete and could adversely affect our business. We are subject to various environmental, health and safety laws and regulations that govern, and impose liability, for our activities and operations. If we do not comply with these laws and regulations, our business could be materially and adversely affected. We are subject to federal, state, and local environmental and workplace health and safety laws, regulations and requirements which, if contravened, could result in significant costs to us. Our manufacturing operations involve the use of hazardous substances and should there be a release of such substances from our facilities, we may be held liable. The penalties or corrective action costs associated with noncompliance could be material. In addition, we may receive notices of potential liability pursuant to  14    federal or state laws for cleanup costs associated with waste recycling or disposal facilities at which wastes associated with our operations have allegedly come to be located. Fluctuations in certain general economic conditions could increase our minimum pension liability under our defined benefit pension plan. We maintain an employer sponsored defined benefit pension plan for the hourly employees at our Amory, Mississippi steel golf shaft plant. We are subject to Financial Accounting Standards Board guidelines for recognition of our minimum pension liability, and subject to ERISA regulations with regard to our cash funding of the plan. As a result, certain U.S. economic conditions involving weak equity market performance and low general interest rates can both reduce the total value of the assets of the plan as well as increase our minimum pension liability under the plan. If these economic conditions are severe enough they could have a significant adverse effect on the funding status of our plan and our overall results of operations. If we do not retain our key personnel and attract and retain other highly skilled employees our business will suffer. If we fail to retain and recruit the necessary personnel, our business and our ability to obtain new customers, develop new products and provide acceptable levels of customer service could suffer. The success of our business is heavily dependent on the leadership of our key management personnel. If any of these persons were to leave our company it would be difficult to replace them, and our business would be harmed. See “Management.” We are subject to risks relating to our international operations. We are subject to risks customarily associated with foreign operations, including: ·        fluctuations in currency exchange rates; ·        import and export license requirements; ·        trade restrictions; ·        changes in tariffs and taxes; ·        restrictions on the transfer of funds into or out of a country; ·        unfamiliarity with foreign laws and regulations; ·        difficulties in staffing and managing international operations; ·        general economic and political conditions; and ·        unexpected changes in regulatory requirements. These risks could have a material adverse effect on our business, prospects, results of operations and financial condition. We are subject to product liability claims and other litigation. From time to time, we are subject to product liability claims involving personal injuries allegedly relating to our products. Currently pending claims and any future claims are subject to the uncertainties related to litigation, and the ultimate outcome of any such proceedings or claims cannot be predicted. 15    We may not be able to identify suitable acquisition candidates, and even if we do, we may not be able to acquire those candidates or successfully integrate their operations with ours. We continuously review acquisition prospects that would complement our current product offerings, increase our size and geographic scope of operations or otherwise offer growth and operating efficiency opportunities. Any future acquisition may not be successfully completed or that, if completed, any such acquisition may not be effectively integrated into our business. Acquisitions may entail numerous risks and impose costs on us, including, among others, difficulties associated with assimilating acquired operations or products, diversion of management’s attention and adverse effects on existing business relationships with suppliers and customers. In addition, any future acquisitions could result in the incurrence of debt or contingent liabilities and other intangible assets, which could have a material adverse effect on our business, financial condition or results of operations. Terrorist attacks, such as the attacks that occurred in New York and Washington, D.C. on September 11, 2001, and other acts of violence or war, including the military action in Iraq, have and could negatively impact the U.S. and foreign economies, the financial markets, the industries in which we operate, our operations and our profitability. Terrorist attacks may negatively affect our operations and your investment. There can be no assurance that there will not be further terrorist attacks worldwide. These attacks have contributed to economic instability in the United States and elsewhere, and further acts of terrorism, violence or war could further affect the industries in which we operate, our business and our results of operations. In addition, terrorist attacks or hostilities may directly impact our physical facilities or those of our suppliers or customers and could impact our sales, our supply chain, our production capability and our ability to deliver our products and services to our customers. The consequences of any terrorist attacks or hostilities are unpredictable, and we may not be able to foresee events that could have an adverse effect on our operations or your investment. Risks Associated with Forward Looking Statements The Private Securities Litigation Act of 1995 (the “Act”) provides a safe harbor for forward-looking statements made by our Company. This document contains forward-looking statements, including but not limited to, Item 1 of Part I, Business, and Item 7 of Part II, Management’s Discussion and Analysis of Financial Condition and Results of Operations. All statements which address operating performance, events or developments that we expect, plan, believe, hope, wish, forecast, predict, intend, or anticipate will occur in the future are forward looking statements within the meaning of the Act. The forward-looking statements are based on management’s current views and assumptions regarding future events and operating performance. However there are many risk factors, including but not limited to, the general state of the economy, the Company’s ability to execute its plans, competitive factors, and other risks that could cause the actual results to differ materially from the estimates or predictions contained in our Company’s forward-looking statements. Additional information concerning the Company’s risk factors is contained from time to time in the Company’s public filings with the SEC; and most recently in Item 1A of Part 1 of this Annual Report on Form 10-K. The Company’s views, estimates, plans and outlook as described within this document may change subsequent to the release of this statement. The Company is under no obligation to modify or update any or all of the statements it has made herein despite any subsequent changes the Company may make in its views, estimates, plans or outlook for the future. Item 1B.               Unresolved Staff Comments None. 16